Jane Friedman

Copyright Is Not a Verb

Today’s guest post is by copyright lawyer Brad Frazer. He has written two other posts for this site: Trademark Is Not a Verb and Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material.

“I copyrighted my book by putting © on the bottom of the first page.”

“This picture is on the Internet, so I can just ‘right-click’ and use it on my website.”

“I copyrighted this DVD by mailing it to myself.”

“We don’t have any copyrights because we never registered anything with the government.”

Have you ever said any of these things? If so, you are in good company—most people have. But they are all incorrect.

Should a writer copyright an unpublished work before submitting it to an agent or publisher? If a writer does not formally copyright their unpublished work and finds someone copying it or giving away free copies, how are they disadvantaged, if at all? How does a writer copyright her work?

As with “trademark” (see my previous post here), “copyright” also is not a verb. It, too, is a noun. Technically, a copyright is an incorporeal property right that springs into existence when a sufficiently creative idea is reduced into or onto a tangible medium. It’s actually like magic, like the Big Bang when the universe sprang into existence from a sea of quantum probability. When you write words on a page or draw a picture or sculpt clay or trip the shutter on a camera, the human being doing the writing, drawing, sculpting or tripping has created and is the owner of a copyright in the resulting work—assuming the resulting work possesses the requisite creativity. Done deal—no ©, no government filing, no mailing to oneself needed to create a copyright.

So, let’s assume you have written a book. If it is creative and is not a blatant rip-off of someone else’s work, it is likely you own the copyright in and to said book. There are some exceptions to that general rule regarding copyright ownership, all of which are beyond the scope of this article, but are briefly noted at the end of this post. If you sell a hard copy of that book, you are only transferring ownership of the paper, the ink and the binding. The incorporeal copyright remains with you on those facts because a copyright exists apart from the medium on or in which the work is tangibly embodied.

Said another way, when you sell a copy of a work you authored, you do not at the same time sell away your copyright in the underlying work. They are different concepts: the medium, and the copyright—a distinct intangible property right—the author possesses in the work contained within or on that medium. If someone copies your book, or large portions of your book, without your permission, that is likely an act of copyright infringement, since the owner of the copyright in a work is the only one who may lawfully make or distribute copies of that work.

But in the United States, for the owner of a copyright to have the ability to file and maintain a lawsuit in federal court for copyright infringement, the owner of the copyright must have registered the copyright at issue. This act of registering one’s copyright is accomplished by filing a registration application with, and paying a fee to, the Copyright Office at the Library of Congress.

So, should a writer copyright an unpublished work before submitting it? Said another way, should the author of a work file an application to register her copyright in that work with the Copyright Office before submitting it to an agent, a publisher or some other third party?

The answer depends on whether the author wishes to have a remedy to enforce her copyrights through a copyright infringement lawsuit in the event her work is copied or distributed unlawfully and her copyright is thus infringed. This is the key issue every author must address when deciding if registration of her copyright in a work is warranted: is the availability of a remedy for copyright infringement important? In general, agents and publishers will not knowingly infringe a copyright in a submitted work. To do so would be anathema to their reputation and their business, and so most authors should not be anxious about making routine, industry-related submissions of works that are not officially registered.

There is one very important “gotcha” that can arise from not timely registering one’s copyrights. In the United States, if you do not register your copyright in a work within three months of the date of first publication of that work, you will not be able to recover either your attorney’s fees or a special category of money called “statutory damages” in a subsequent copyright infringement lawsuit—even if you win. “Publication” for purposes of copyright law is defined differently than the common understanding associated with being a “published author.” Under copyright law, “publication” is very loosely defined as “giving or selling a copy of the work to a third person,” so remember that to have your full panoply of rights available if you do file a copyright infringement lawsuit, you must register your copyright. And if possible, register within three months of the date of first publication, as defined.

Important Caveats (to be elaborated upon in future posts)
  1. Ideas are not protectable under copyright law. The idea of your book, e.g., cloning dinosaurs using ancient DNA, is not protectable.
  2. Titles are not protectable in copyright. You may call your book “JAWS” without infringing on Peter Benchley’s copyrights, assuming you did not otherwise plagiarize Mr. Benchley’s words.
  3. The presence or absence of the © on the work has no relevance to the issue of whether the author has registered her copyright. The © may be placed on any work without regard to whether the author has registered the copyright. It merely acts to show that the author is arbitrarily claiming to own a copyright in that work and to notify the world of that claim. In fact, most authors do not place the © on industry-related submissions as it tends to show a bit of naiveté on the author’s part, and the absence of the © does not impair the author’s copyright ownership claim.
  4. You may not actually own the copyright in that work you think you just authored (e.g., work for hire and joint works).

You can contact me at bfrazer@hawleytroxell.com if you have any questions.