Guest Post: Copyright Basics

The lovely and energetic Amie Gibbons is on a blog tour to promote her newest novel, Psychic Undercover (With the Undead) and she's agreed to appear here with a great post on copyright. She's a lawyer, but her novels are full of sweet Southern sass and girls who kick ass and take names... Somewhere between paranormal romance and Urban fantasy, if you're picky about genre. I'm not, really, I just know a lighthearted read when I find one! 

First thing’s first, basic disclaimer: These are all opinions and what we call “black letter law,” as in simplified and pretty set concepts, and none of this is to be taken as legal advice, merely the pontification of a lawyer who likes the sound of her own writing. I am not your lawyer, this is not legal advice.

Let’s get this out of the way up front, you can be sued for anything. No, really, you can have done nothing wrong and have people sue you. If it is truly legally baseless (as in, even if everything they are saying is true, they still don’t have a case) there are mechanisms in the legal system to use to get the case tossed early on. But if it’s even possibly a claim with a basis, you could be looking at a legal battle, and those ain’t cheap.

Okay, if you’re a writer, you’ve heard the term copyright. It’s very important in the arts. So what is a copyright?

It is literally what it sounds like, the right to copy. It means you own that type of mental work and you are the only one who can make reproductions of it.

On some things, it’s easy to say what’s copyrightable and what isn’t. A book is copyrightable, but what about a title? Or a made up word? Or a general plot? There it gets a little more tricky. It gets grey. Lawyers love grey, it gets us lots of money.

This post is just going to touch on the basics of copyright.

1. For something like a book, the first question is usually along the lines of, “Do I have to register it to have protection?” Basic answer is no. You created it, it’s yours and legally no one can take it from you. You have copyright as soon as the art is put on a medium, as in, words are put on the page.

So no, you don’t have to register it with the copyright office, and you really do not have to do the “poor man’s copyright” (that’s where people would mail themselves their manuscripts in the mail and keeping the dated paperwork to prove they had the work on that date).

The tricky part if you get caught in a legal battle is proving it was yours first. This is where a registered copyright helps because it helps prove it was yours on the date registered (it also does other stuff for you like you can sue in federal court and get greater damages in court).

2. Stuff like titles are usually not copyrightable. It’s not an absolute rule, because practically nothing in law is, but generally titles are not protected. Same with plot lines. You’ve probably heard something along the lines of there are no new stories. You can’t copyright an idea, merely the expression of it. So those guys who come out of the woodwork whenever a huge blockbuster book explodes, claiming they had the idea first, they may sue (see above) but unless it’s basically the same book, or you’ve stolen passages from their work, as in actual words on paper that you have taken, then it’s not going to be a copyright violation.

Won’t stop them from suing you and hoping you settle or the fifteen minutes of fame will help sell their books. The second is my theory on why these people do this because why would you settle when you’re the one with the deep pockets now?

2. You own it as soon as you create it, except for Works for Hire! This is a big exception you need to be aware of. If you’re hired to create anything, read the contract carefully, it will say if it’s a work for hire, or if you create something within the scope of your employment, those are Works for Hire and then the person who commissioned the work/employer owns the copyright.

If it’s not clear if it’s a Work for Hire, then courts get into factors to determine who owns copyright and that’s a big, expensive legal battle.

A good example of what authors usually deal with is covers for our books. See the cover attached to this post? It’s for my new book, and the lovely owner of this blog made it. So who owns the copyright, her or me?

Short answer, she does. She’s just letting me use it. Why is this? Because we don’t have a written contract saying she’s making it for me. Basic rule with Works for Hire is there must be a contract specifying it’s a Work for Hire, or it’s not one. There are other factors, but without that language in the contract, courts usually don’t even look at the other factors.

3. Despite popular belief, putting something online does not give everyone with a computer the right to copy and distribute it freely. Don’t get me wrong, we all do it, we’re just not supposed to.

When you post something online, you’re accepting (maybe even encouraging) others to share it, but that doesn’t mean you lost your copyright. (Be careful with this because there does come a point where if you haven’t been controlling who gets to reproduce your creation, you could be giving the impression that it’s freely out there for all to use and this could affect your rights.)

If somebody shares something they weren’t supposed to, ask them to take it down. It’s your copyright, you didn’t give them permission (a license) to reproduce it. The formal, legalese term for this is a Cease and Desist letter.

Most of us posting stuff online though, (like pics on blogs) probably won’t get sued for it because it’s not worth it. A single internet user is small potatoes and not worth the legal battle usually, also, if the copyright owner sent me a Cease and Desist, I’d listen and that’d be the end of it for most people (as in, they’d know it wouldn’t be worth it to sue me, not that they couldn’t). BUT, some people will demand money and threaten to take you to court, and they would have grounds to. Though, most of our sharing would fall under Fair Use.

4. Fair Use: Be careful here. Fair Use isn’t what we lawyers call a safe harbor, meaning it’s not a shield from being sued. It’s an affirmative defense. That means once you are sued, they prove you violated copyright, then you prove it’s covered under Fair Use. Usually people can’t afford a lengthy legal battle, so they just pay even if their use is clearly Fair Use. This is stuff like you’re not making money off it, it’s for educational purposes, it’s a parody, stuff like that.

A good way to avoid troubles like this is simply ask the copyright holder (if you can figure out who it is, another problem with the internet because most pics don’t have a clear trail back to the owner.) You like a pic and want to use it on your blog, email the owner and ask. Most artists will be fine with it, or ask for a fair licensing fee.

Alright, there’s your primer on copyright laws. Happy writing!

And here is my not so subtle push of my new book, Psychic Undercover (with the Undead). Psychic Ariana with the FBI has to go uncover as a singer at a club to catch a serial killer… but things get complicated when it turns out it’s a vamp club.

You can find more of this post at James Young's page today. Go check it out and don't forget to give his books a try, although he's more a hard-boiled military science fictioneer beside Amie's cotton-candy reads.