Sunday, November 23, 2014

The Elephant in the Room

Copyright is probably the most misunderstood concept in writing. With information being so readily available on the Internet, everyone is on the defensive. If someone uses even one word of a text, the author is ready to jump on them. The same goes for ideas. Many people believe that if someone uses an idea the same as or similar to there’s without permission that they have stolen it. But actual copyright is very different from these common misconceptions.

Most beginning writers think that if they put their work out in public view that someone will steal it. If it only were good enough, someone might do just that. But most of the time it isn’t worth stealing. So how did they develop this notion.

It all started back when they were in school. Teachers ingrained in them that all their work had to be original. Let’s face it, the last time something totally original was created was at the point of the creation of the universe. Everything since then is influenced by all that came before it. Traditionally, academics have a fear that someone is after whatever they’ve uncovered or created. But that’s not how the real world works.

According to the Encyclopedia Britannica, copyrighting a work reserves the rights by the author to reproduce, distribute, and perform a literary, musical, dramatic, or artistic work. That covers a lot of territory.

It all began with the Statute of Anne, passed in England in 1710, that recognized that authors should be the primary beneficiaries of copyright law and established the idea that such copyrights should have only limited duration, after which works would pass into the public domain. The U.S. Congress enacted a similar law in the United States in 1790. Over the years, subsequent legislation changed the duration of a copyright and the necessity of registration.

Essentially, a copyright is placed on a work from a particular date onward for a period of time during which the copyright holder has exclusive rights to reproduce, modify, and distribute the work in whatever way he or she sees fit. In the U.S., that period is 70 years plus the age of the author at the time of publication. For anonymous works, that period is 95 years from first publication or 120 years from creation date.

A work that was created in tangible form for the first time on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death.

Copyright law protects short stories, novels, nonfiction articles, poetry, computer software, software manuals, text advertisements, manuals, catalogs, brochures, and  databases. Other categories include plays, films, musical and sound recordings and multimedia works. Copyright law doesn’t protect your ideas, facts, words, and names, although it may protect the way you express them.

You own the copyright to your work, unless you assign those rights to a third party. Copyright protection arises automatically the moment you create it. The work must be "original," and not based upon someone else's work. The fact that your short story may be similar to other stories doesn’t mean it isn’t "original” for copyright purposes, so long as you don’t copy the complete story from another source.

For works published before March 1, 1989, you needed to place a copyright notice— “Copyright © 2014 by Your Name. All Rights Reserved”—on your work in order to receive copyright law protection. That’s no longer the case. For works published after March 1, 1989, you don’t need to place a copyright notice on your work in order to be protected by copyright law.

Such a notice warns people who view your work that you take copyright issues seriously and may have a deterrent effect upon possible infringers, especially those who are unfamiliar with the intricacies of copyright law. Furthermore, if your work carries a proper notice, in the event of a subsequent infringement lawsuit the defendant will be unable to claim "innocent infringement"—that he or she didn’t realize that the work was protected.

Do you have to register your copyright? Not necessarily, but if you need to take legal action, a registered copyright will hold up in court. You may register the work after someone has infringed upon the work, but the registration will only apply to infringements that occur after the registration. However, if you register your work within 90 days of publication, the statutory damages provisions apply to infringements before and after the actual registration. Registered works may be eligible for statutory damages up to $100,000 and attorney's fees in successful litigation.

Registration costs $35 per work. To register, you simply fill out the copyright application and mail it to the U.S. Copyright office with a check and a nonreturnable copy of your work—one copy if your work is unpublished and two copies if it has been published. Works that have been published must be registered within three months of publication. This is called "mandatory deposit."

Copyright registration is considered effective the day the Copyright Office receives all the materials required for registration. You may copyright the work in a pen name or pseudonym by simply checking the "Pseudonymous" box on the application.

Works published or created after January 1, 1978 aren’t subject to renewal registration. For works published or registered prior to January 1, 1978, renewal registration is optional after 28 years but does provide certain legal advantages.

The length of copyright protection depends on when the work was created, who created the work, and when the work was first distributed commercially. For works created on and after January 1, 1978, the copyright term for works created by an individual is the life of the author plus 50 years.

The term of the copyright for "works for hire" is 75 years from the date of first "publication" or 100 years from the date of creation, whichever expires first.

Remember, it’s up to you to enforce the copyright to your works.

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