Q&A on Copyright With an Attorney

Bradlee Frazer

By far, I receive the most questions from writers on copyright, mainly due to this post: When Do You Need to Secure Permissions? So I feel very lucky to have found an intellectual property lawyer, Brad Frazer, who is friendly and enthusiastic about providing answers to writers on a range of copyright issues.

He’s written three other posts for this blog:

As a thank-you to him, I recommend checking out his novel with Diversion Books, The Cure. Visit Amazon and sample his first chapter for free on your Kindle.

Isn’t registering your copyright something the publisher does? And if not, and you haven’t done it within three months of publication, then what?

Yes, many times your publisher will handle the copyright registration. But there is no industry-wide rule that says an author may not or should not register her copyright in her works. Said another way, a publisher will not look askance at you or reject your work simply because you have already registered your copyright. It is a big risk to decide not to register your copyright thinking you will wait for your publisher to do it. This is so because (1) in the U.S., you must register your copyright in order to have a remedy to sue an infringer in federal court; and (2) you should register your copyright within three months of the date you first give away a copy of the work or sell a copy (“publication”), so as to have the full panoply of remedies available to you should you have to file a lawsuit. If you do not register within that three-month window, and if you do sue for copyright infringement, you will not be able to recover your attorney’s fees or what are called “statutory damages”—even if you win. So there is a huge financial incentive to register within that three-month window.

Side note: “Publication” is defined in copyright law to mean “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” Like other legal issues, it is a matter of reading and applying that statutory definition to your situation. I always advise clients to err on the side of caution and register their copyrights as soon as the work is completed and not wait for a “publication” event.

Remember: Registering your copyright is NOT THE SAME as merely putting a “circle C” symbol on the work. In fact, you generally would NOT want to put a “circle C” on an industry-related submission to an agent or publisher. Just because you have registered the copyright does not mean you must put a “Circle C” on the work.

A former editor of my novel (still in the works) is trying to claim my work as her own, posting it on Twitter and other social media sites. It has not been registered with the Copyright Office and is not even complete yet. Do I have any recourse to make this stop?

Yes, you should register your copyright in the work as it exists now. Registration will give you a remedy in case you wish to file a copyright infringement lawsuit. Normally, after you register the copyright you or your lawyer would send the infringer a cease and desist letter and then, if there was no response, file a lawsuit to make it stop. Or, since this is apparently online infringement, you could send a Digital Millennium Copyright Act Take-Down Notice to the sites posting the infringing content.

If I write a short story then blog it and it ends up in someone else’s book, do I have any recourse?

Yes, if you have registered your copyright in the short story with the U.S. Copyright Office, you would be able to file a lawsuit for copyright infringement against the person who used it in their book. You do need to register the copyright to be able to file and maintain that lawsuit. Without registration of the copyright, your legal remedies in the U.S. are somewhat limited.

I’m a self-published author who, like most self-pubbers, has begun with one electronic format. As time goes on I will publish my novels under other formats, and then, who knows? Paperback, hardback, audiobook … I see from the U.S. Copyright Office site that I can file an electronic copy of my work; does that filing now cover all possible formats of the same work? Say in five years’ time I have an audiobook out of Novel #1 and someone pirates it, and by this time I can afford a lawyer to go after the pirate. Does my original filing of, say, a PDF of the text of Novel #1 cover this case?

Assume that you write a book using Microsoft Word. As you know, you own a copyright in the book upon the act of typing the words into the Microsoft Word .docx file. That is a sufficient act of reducing your idea to a tangible medium to create a copyright. If you print the book out on paper, you still own a copyright in the book. If you convert the .docx Word file to .epub or .mobi or .html, you still own a copyright in the book.

Because you self-published, I assume your book exists today both as a Word .docx file and a Kindle .mobi file? You own the copyright in the book—file type does not matter. If you turn it into a PDF, you still own the copyright. As long as the words are there, the medium does not alter the basic idea that you, as the author, own the copyright in the work.

When you register that copyright that you own in that book, you will be required to upload an electronic copy of the book called the “Deposit Copy.” The Copyright Office upload protocols require that the Deposit Copy be in specified formats—I do not think they accept .mobi or .docx. So, you will convert the book into a PDF file (or whatever) to upload it, and voila!, you will have filed a copyright registration application.

Once that is done and you receive the Registration Certificate in the mail in a few weeks, the words that comprise the book are protected by a registered copyright, and will be, even if the book is published in paperback, hardback, EPUB, or some other digital format. As long as the words are all there in the subsequent version of the book, that original registration will cover it, even if the file format of the book changes.

The EXCEPTION to all this is an audio book, the example you picked. When you create an audio book—a sound recording of someone reading the book—you will need to file a new copyright registration application to register an additional copyright in the sound recording. You will upload or mail in a copy of the sound recording, and that will become the Deposit Copy to support that application. You will then own a registered copyright in the sound recording AND the print version.

Note that when you write the screenplay based on the book, that will be what is called a derivative work, and you will need to file another copyright registration application.

But except for sound recordings and derivative works like a screenplay (in which the words are changed), one registration of your copyright in the book as a PDF (or whatever the required Deposit Copy file format is) will cover multiple print formats of that same book.

I will do the online registration with the Copyright Office at the Library of Congress within three months of publishing my YA novel. It is affordable, I am pleased to see. However, I live in Australia. Is this still acceptable? Or is this only for U.S. citizens?

Each country has its own copyright laws and registration schemes. In some countries, registration is not needed to fully protect your rights, for example. Registering your novel with the United States Copyright Office within three months of the date of first publication will give you remedies for copyright infringement that occur within the United States. A U.S. registration can also help you with an act of infringement that occurs in another country, like Australia, if it is a member of the Berne Convention, an international copyright treaty. (Australia is a Berne Convention country.)

There is no downside to your registering your work in the U.S. if there is a chance your work will be copied without your permission in the U.S. or in a Berne Convention country. You’ll need to consult an Australian copyright lawyer to see if an Australian registration is needed/required.

What if a worship pastor (whose job description includes writing worship songs), writes a worship song on his own time and without church resources, BUT that song is performed at the church where he works at? I know that if it is written in his office, on church time, with church resources, the church “owns” it. I know that, typically, what is done on one’s on time without church resources is not owned by the church. HOWEVER, it gets fuzzy for me when it’s a part of his/her job AND it’s “promoted” (performed) at the church. 

Your question arises under what is called the “work for hire doctrine.” Generally stated, it means that the copyright in a work created by an employee during the course and scope of their employment is owned by the employer. Period. Where it gets hazy, as you state, is when it is not clear if the work was authored during the course and scope of the employee’s employment.

Here, the fact of the song’s being performed at the church doesn’t really matter, in my opinion. This is going to boil down to these two issues: (1) was the worship pastor an actual employee (as defined by the IRS) of the church; and (2) was the song authored during the course and scope of that employment? There is a great deal of case law on that very issue (see, e.g., the Reid case), since many times it is not clear what is within the “course and scope” of the employment—as in your case. Here, it seems to be helpful that the pastor’s job description includes writing worship songs—that is a fact that would tend to show that the song at issue was written as a work for hire, and thus the church owns the copyright, assuming the employment test is met. But without a full-blown analysis of all the facts and the case law in your jurisdiction, I cannot really opine further.

Once again, my thanks to Brad for being so generous with his time and advice. Check out his thriller, The Cure, over at Amazon.

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