Clearing Up the Confusion about Copyright

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.

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Do you think you should patent the name of your company, trademark your book, and copyright your invention? In other words, are you confused about which term correctly applies to which type of intellectual property and how the three types can, in fact, interrelate under certain circumstances?

We tackle the complex world of literary law in our new book for non-lawyers titled Literary Law Guide for Authors: Copyright, Trademark, and Contracts in Plain Language. For purposes of this article, we will examine copyright in particular in order to shed some light on a very confusing but important concept for writers and other creative people.

As we have often said to clients and to writers during our seminars, no one word is more misused or more misunderstood by people than the word "copyright." This single word creates such confusion and lends itself to so much misinformation because rumors, assumptions, and complicated changes in the law make it difficult for writers to separate fact from fiction. But because copyright consists of such a valuable bundle of rights, it is imperative that writers fully comprehend the nature of copyright and the process by which it is protected.

What is copyright? Copyright refers to the exclusive rights of a copyright owner of a work to make and distribute copies, prepare derivative works, and to perform and display the work publicly. These rights are very different from other intellectual property rights. For instance, a copyright protects an original artistic or literary work, but 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.

Authors are, by nature, an inquisitive bunch. Over the years they have asked us many questions about writing and the law. Here are a few of the questions and our responses, which are explored in greater detail in our book Literary Law Guide for Authors: Copyright, Trademark, and Contracts in Plain Language.

What can and cannot be copyrighted? Generally, copyright protects all original writing: letters, e-mail, poetry, fiction, nonfiction, and songs for instance. Book titles cannot be copyrighted. Ideas cannot be copyrighted. Copyright also protects other kinds of creative work, such as photographs, CDs, recordings of written works, musical scores, movies, sculptures, artwork, and even architecture.

What do you have to do to copyright your work? If you have created an original work in some tangible form (in writing or on film or tape or canvas, for example) then you don't have to do anything. You automatically own your copyright. But you should register it for further protection.

Why do I have to register my copyright with the Copyright Office? Isn't it good enough to mail myself a copy of my work in the mail? Registration of your copyright creates a public record of the facts and circumstances pertaining to it. While registration is not necessary for copyright protection, the Copyright Act gives you certain advantages under the law if you do register your work. There are several advantages to registering your copyright:

  • You can file an infringement suit only if the copyright is registered.

  • If made before or within five years of publication, registration establishes sufficient (prima facie) evidence in court of the validity of the copyright and of the facts stated in the registration certificate.

  • If you register within three months after publication of the work or prior to an infringement, the defendant is required to prove that infringement does not exist. This is a critical advantage because ordinarily the person who files a lawsuit has to prove his or her case; but if you have registered your copyright in a timely manner, then the burden of proof falls to the defendant.

  • If registration is made within three months after publication of the work or prior to an infringement, statutory damages and attorneys fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available.

  • Registration allows the copyright owner to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

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-manuscript-and-then-you'll-be-protected belief is a myth. It is simply not true and we 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. 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, these days this is neither necessary nor helpful when it comes to actually registering your work.

How much can you quote without permission? Contrary to popular belief, there is no set number of words you can use under the fair use doctrine. A related question is whether an author needs permission to quote from phone calls, in-person interviews, e-mail, letters, the newspaper, a TV commercial, or a company slogan. The answer will not be satisfying because it is a lawyerly one: it depends.

How do I investigate the copyright status of a work? There are several ways to investigate whether a work is protected by copyright or whether it is in the public domain. The easiest way to begin is to examine the work for the copyright notice information, place and date of publication, and author information. The second way is to conduct a search of the Copyright Office catalog and other records. The third way is to have the Copyright Office conduct a search for you.

Do copyright laws apply to online works too? The Internet and other technological advances certainly do present numerous challenges to existing copyright law. But an online work is no different from its physical counterpart, except for the way the information is viewed or perceived. Therefore, there is no one form used specifically to register online works. In fact, the Copyright Office advises that the forms TX, PA, VA, and SR are mainly for office administrative purposes and therefore, technically, a work may be registered on any form. Of course you should try to use the form most appropriate for your particular situation, and this decision depends on the nature of the online work you want to register.

With all of that said, welcome to the complex and often confusing world of copyright. Our goal is to simplify it for you and to help you have a better understanding of your legal rights and responsibilities as a Literary Entrepreneur.


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Excerpt from Literary Law Guide for Authors: Copyright, Trademark, and Contracts in Plain Language 
by Attorneys Tonya Marie Evans and Susan Borden Evans

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