The Truth Behind 7 Popular Copyright Myths
The Truth Behind Popular Copyright Myths
By Susan Spann
Flickr Creative Commons: Dennis Skley
Copyright law can seem confusing, but authors need to know the basics—especially when (and whether) to register a copyright, and what to do when using a pseudonym. As a publishing lawyer, I work with copyright issues (and authors) all the time, and today, I thought I’d take a closer look at some popular myths about copyright law and how it applies to novels and other creative works.*
Myth #1: You have to register copyright in order to own the copyright in your work.
False. Registration with the U.S. Copyright Office is not a legal requirement for copyright ownership. Copyright attaches to “qualifying works**” automatically at the time of their creation. However, copyright registration is generally required in order to file a lawsuit against infringers, and to claim certain benefits under the U.S Copyright Act, so authors should register copyright within three months of a work’s initial publication.
(**Short stories, novellas, novels, anthologies, poetry, and similar fiction and non-fiction works all generally qualify for copyright protection.)
Myth #2: Authors benefit from copyright registration.
True! Copyright registration gives copyright holders significant benefits under U.S. law. Among them:
The right to sue infringers to stop infringement (and recover damages).
The right to collect “statutory damages” (money, in an amount established under the copyright act) for infringement, even if the infringer did not make substantial profits from wrongful use of the copyrighted work.
The right to recover attorney fees against an infringer in a successful lawsuit.
Many of these benefits are available only if a work is registered in a timely manner, meaning within three months of initial publication. However, some benefits (such as the right to sue to stop infringement) are available regardless of the timing of registration.
Myth #3: A book is not “published” for copyright purposes if you give it away for free.
False. Under the Copyright Act, “publication” means “the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending,” or “offering to distribute copies of the work to a group “for purposes of further distribution, public performance, or public display.” (17 U.S.C. Section 101)
The Copyright Act does not require that the author make any money (or profits) on sales before a work is considered “published.”
Also, the Copyright Act does not distinguish between self-published works and those published by a third-party publishing house. Published is published, regardless of the method the author chooses.
Myth #4: If you don’t register the copyright before publication, you can never register at all.
False. To maximize legal rights in the work (including the right to claim attorney fees and statutory damages from infringers), the copyright should be registered within 3 months after the date of the work’s initial publication. However, authors (or publishers) can register copyright in a qualifying work at any time—even after the initial three-month window.
Registering copyright more than three months after initial publication may result in the loss of certain statutory protections, but others (like the right to sue infringers) can be secured at any time by registering the copyright with the U.S. Copyright Office.
Myth #5: Authors should register copyrights before querying agents or submitting their work to publishers.
False. The registration trigger is publication, not querying.
Authors sometimes think they should register copyright to protect the work from being stolen by agents or publishers. However, reputable agents (and publishers) do not steal projects from authors. It costs far less (and involves less risk) to simply offer a contract.
Generally, publishers prefer to register copyrights (or to have the author do so, in the case of smaller houses) at the time of initial publication.
Myth #6: Traditional publishers always register copyright on the author’s behalf.
False. Many do, but some do not—especially in the case of smaller houses. Your publishing contract should state, specifically, who will handle copyright registration. If the language isn’t there, ask (or have your agent or attorney ask) the publisher to add it during negotiations.
Myth #7: Registering copyright is difficult, expensive, and requires a lawyer.
False, False, and False. Copyrights can be registered online, at the U.S. Copyright Office website (www.copyright.gov). Registration typically costs less than $50, and no attorney is required. The Copyright Office website even has a step-by-step tutorial to walk you through the registration process.
When it comes to publishing law, don’t trust in myths. Do your homework, and ask a publishing lawyer or an agent if you can’t figure out the answer. A little research in advance can save you a lot of trouble down the line.
* Disclaimer: this post is for information purposes only. It is not, and should not be interpreted as, legal advice to any person or on any topic. Also: this post discusses U.S. copyright law—the laws of other nations and principalities may differ. Consult an attorney in your country, state, or province for an individual assessment of your legal rights and needs.
About Susan Spann
Susan Spann writes the Hiro Hattori Novels (Shinobi Mysteries) featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo, who solve mysteries set in medieval Japan. Her first novel, Claws of the Cat: A Shinobi Mystery (Minotaur, 2013) was a Library Journal mystery debut of the month and a finalist for the Silver Falchion Award for Best First Novel. Her fourth Hiro Hattori novel, The Ninja’s Daughter, releases August 2, 2016 from Seventh Street Books. Susan is the 2015 Rocky Mountain Fiction Writers’ Writer of the Year, and also a transactional attorney whose practice focuses on business and publishing law. She founded and curates the Twitter hashtag #PubLaw (for Writers), where she answers questions and provides information about publishing business and legal issues. When not writing or representing clients, Susan enjoys traditional archery, reading fiction and nonfiction, and raising seahorses and rare corals in her marine aquarium. She lives outside Sacramento, California, but you can find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), or on Facebook/SusanSpannBooks.