From the Trenches

I've been thinking a lot recently about rights--authors' rights, that is, and I mean copyrights, not things like the freedom of the press or the right to write badly. Now, my day job is practicing law, but this isn't my field, so what follows is what I've gleaned during the course of my night job.

Copyright laws are intended to extend protection to authors (and other creators) by giving them the right to stop unauthorized persons from reproducing their work. Let's go through the basics:

  • How do I get a copyright? That's easy--just assert it. You claim a copyright by putting a claim of copyright on the work when it's first published. You know: © Copyright by Leslie S. Klinger, 2013. You need to be sure that your publisher does this if you're not self-publishing.
  • Do I need to register the copyright? No, you don't, but registration is cheap and gets you certain procedural advantages if there's ever a dispute. You can register your copyright with the U.S. Copyright Office online for $35 or on paper for $65. Your publisher should have done this for you, but you should follow up. Other countries' laws are similar.
  • How long am I protected? A long time--95 years after the date of publication in the U.S, 70 years after the author's death in the U.K.

A lot of writers put their work up on the Internet, whether in the form of stories, essays, or even blogs. There's a sense in the world that things on the 'net are up for grabs, so protect yourself there too: Put your assertion of copyright in some prominent place on the Web site.

The most important thing you can do to protect yourself is to "police" your copyrights regularly. That means contacting your publisher if a Web site offers free downloads of your work (or contacting the Web site yourself). You don't have to charge people money to use your work if you don't want to, but you do need to insist that no one can reproduce your work without your permission.

Of course, you need to be mindful of what rights you've given away. For example, if you've contributed a story to an anthology, you usually will have promised that the publisher of the anthology has the exclusive right to publish your story for a period of time, typically 12 to 18 months. That means you can't put out a collection of your work that includes the story or put it up on your Web site.

What about using other people's material? When don't you need permission? I'm a nonfiction writer, so this comes up frequently. The important exception to the rule that permission is needed to reproduce all or any part of a copyrighted work is the so-called "fair use" doctrine. "Fair use" lets you use part of a creator's copyrighted work. In the words of the U.S. Copyright Office, "it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances." For example, if I were writing an essay about Lovecraft's use of the letter "s" in his stories, I could quote examples from his stories. Publishers are skeptical, however, about using song lyrics in other contexts, even critical. This is so because even a stanza of a song may be a significant percentage of the total work.

Actually, mentioning Lovecraft brings up another exception: material that is in the "public domain." This is material that either was never copyrighted (for example, Lovecraft's shopping list) or for which the copyrights have lapsed (and that appears to be the case with virtually all of Lovecraft's work). Lovecraft may not have bothered to claim copyrights for much of his work, and those that were copyrighted almost certainly lapsed (the time periods for copyright were shorter in the past). Therefore, anyone can freely publish Lovecraft's work without worry about copyright.

Finally, I should mention "copyfraud," a neologism coined by a scholar discussing the growing trend toward the assertion of copyright protection where there really is none. For example, I've seen new editions of the works of Poe claim copyright. Sorry, too late--nothing published before 1923 remains protected by copyright in the U.S. What about that previously unpublished story of Poe you found in the attic? That too is unprotected because previously unpublished works can only be copyrighted in the U.S. if published within 70 years of the author's death.

What about the characters themselves? Can you write a new story about, say, John Carter of Mars without the permission of the Edgar Rice Burroughs Estate? Probably, but this depends on whether the "defining characteristics" of the character are set out in public domain material. This is a complex topic, and I'm involved in a lawsuit right now about the Sherlock Holmes character. For more, see the http://www.free-sherlock.com Web site.

This doesn't tell you everything you need to know about copyrights, but it's a start. Authors do have rights, and it's up to you to assert them and protect them!

© Copyright Leslie S. Klinger 2013.