Copyright © 2002 Tonya M. Evans, Esquire. This article may not be copied or distributed without the consent of the author.
DISCLAIMER: The authors are not engaged in rendering legal or other professional services as a result of the information contained in this article, and this article is not meant to constitute legal or other professional advice. If legal or other professional assistance is required, the services of an attorney should be sought.
NO ONE WORD is more misused or misunderstood within the written and spoken word communities than the word "copyright." For wordsmiths, this single word creates more confusion and lends itself to more misinterpretation than the most perplexing verse ever penned. So I begin this article with a simple definition of this mystifying term. In the case of literary works, copyright is the exclusive right to make copies of the work, to make derivative works from the original (i.e., develop a stage play based on a poem), to distribute copies, to perform the work publicly and to authorize or prevent others from doing any or all of the above.
It is also important to distinguish copyright from other forms of intellectual property. A copyright protects an original artistic or literary work, a patent protects an invention, and a trademark (associated with goods) or service mark (associated with a service) protects a word, phrase, symbol or device (collectively referred to as a "mark") used in commerce to identify and distinguish one product or service from another.
Unfortunately, some writers mistakenly believe that their copyright does not exist until they send their work to the Library of Congress. Worse yet, some are still under the erroneous impression that their work is "protected" because they sent it to themselves in the mail! If you learn nothing else from this article, you must learn this: the mail-yourself-the-poem-and-then-you'll-be-protected belief is a myth. It is simply not true and I do not want anyone who reads this article to perpetuate this myth for one more moment. Rest assured, the only thing you will prove when you mail your work to yourself is that the post office is still in the business of delivering mail.
The Mail Myth evolved in the days before the 1989 amendment to the Copyright Act (when the United States joined the Berne Convention). Under prior Copyright law, authors were required to include a copyright symbol on their work in order to create a copyright. Many rights were lost under the old law because of the strict copyright symbol requirement (as well as other formalities). Writers believed that the only way to prove the existence of that work on a particular date was to mail a copy to themselves. However, this is neither necessary nor helpful.
So, you ask, how is a copyright created? Copyright is secured automatically upon creation once your work is fixed in a "tangible form." For instance, at the moment you write or record your poetry, your copyright in that work is secured. Note, however, that if you do a live performance of your work "freestyle" or from memory without first reducing it to writing or recording it, no copyright exists in that freestyle performance at that time. Nonetheless, simultaneous recording can create copyright; for instance, in the case of radio broadcasts, taped live performances and live televised sporting events.
So, you ask, if the copyright exists automatically, why register my copyright? Good question. Now I've got you thinking. Read on.
One excellent reason to register is to establish a public record of your copyright. Another compelling reason is the requirement that you register before you can file a lawsuit. You may also be able to avail yourself of other valuable rights if you win, like attorney fees and statutory damages.
My life mission is to educate wordsmiths about the nature of copyright so that writers will be better equipped to secure and protect their creations and use the law to their advantage. My hope is that the words in this article will lead me ever closer to my goal.
Excerpt from Literary Law Guide for
Authors: Copyright, Trademark, and Contracts in Plain Language