A Writer’s Guide to Copyright
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This is a Writer’s Guide to Copyright. I also discuss Public Domain, and Creative Commons licensing in this article.
Click here to learn about Plagiarism.
Copyright law is an issue that should concern all content creators. Most writers want to follow intellectual property rights laws, but sometimes they go overboard. They fail to understand how US Copyright law applies to their own work and the work of others they are using in their research.
I am not a lawyer and I’m not offering legal advice. This is general information that is known to most seasoned writers. You should always consult an intellectual property lawyer in your local area when it comes down to specific cases. Remember, what I discussed here applies to citizens of the United States. There are international copyright treaties, but copyright law can vary in other countries.
Do You Need to Copyright Your Book or Blog Posts?
Copyright law is continually changing. Old laws no longer apply even though many people think they do. For example, according to the 1909 copyright law, which lasted until 1989, you had to properly document your ownership. That meant you had to put a line like this on any work you intended to protect and to register the work with the US Copyright Office. It looked like this:
Copyright © 2020 by DL Hughes. All rights reserved.
If you did not comply accurately, right down to the use of the © mark, then your work was not protected. Many works went into the Public Domain as a result of inattention to detail.
However, since 1989, you do not need to use a copyright notification, nor are you required to register your work with the US Copyright Office. Your work has automatic copyright protection the moment you put it in tangible form. That means, for example, that the moment print the first draft of your book at home, or place your blog post into WordPress, your ideas take a tangible form and have copyright protection.
You do not need to add a copyright notice. You do not need to register your work with the US copyright office. Again, you have copyright protection the moment your ideas take tangible form whatever form that may be.
Two Copyright Caveats
There are two important caveats that you cannot overlook. The first is that there is no law preventing you from adding a copyright notice to your work. In my personal opinion, you have nothing to lose by including a copyright notice in the old-style, as I show above. You simply change the name and the year to the one when you put your ideas into tangible form. Again, this is not a legal requirement, but it puts everyone on notice about your intellectual property ownership.
When you actually print a copy of your book (publish it), you want to make sure it has a copyright page and you assert your rights there. It is not mandatory, but it is the smart thing to do. A copyright page removes any doubt about your ownership of your original work.
With a blog, it is commonly the whole website that shows the copyright notice, not individual posts. The individual posts should have your byline (by D.L. Hughes), and so the circle of ownership is complete.
Here’s the second caveat. Even though you are not required to register your copyright with the U.S. Copyright Office, you must register it if you want expanded copyright protections. It is of particular importance that your copyright be registered if you take a third-party to court for copyright infringement.
Most bloggers don’t register the copyright of each post. Sometimes, they compile their entire blog into a PDF on a quarterly or semi-annual basis and register that. If no infringement case has been filed, then formal registration is not immediately required. Of course, we’re getting into particular cases here, and you always need to hire a lawyer when it comes down to cases.
You Have Automatic Copyright Protection
The key issue is this: Your work has automatic copyright protection the moment you turn your ideas into tangible form. If you want expanded legal protections, you must register your copyright with the U.S. Copyright Office before any legal proceedings begin, or as your attorney advises in your case. Finally, you do not need to include a copyright notice on your work, but it is common sense to do so.
You almost never want to pay a third-party to register your copyright. Some companies charge hundreds of dollars for doing it. However, it is a straightforward process, and you can do it online for only $45 (subject to change). This is the link to the US Copyright Office. Typically you want to register under the “Digital Content” category.
What You Can and Cannot Copyright
Here are things you can copyright:
- Video and film
- Pictures, graphics, and sculptures
- Computer code
Here are things you cannot copyright:
- An idea
- Telephone directories
- Height and weight charts
- Lists and tables from public documents
- Rulers and tape measures
- List of ingredients in recipes or formulas
- Blank forms, including things like address books, order forms, and so forth
- Anything already in the Public Domain
There is a lot of confusion surrounding the fact that an IDEA cannot be copyrighted. That’s primarily because you hear of court cases where someone claims that a filmmaker stole an idea from a writer. These cases rarely succeed if no copyright infringement takes place, simply because you cannot copyright an idea.
Some writers claim plagiarism, but plagiarism is not illegal. It is simply bad manners unless copyright infringement can be proven. If someone takes your idea and transforms it into something unique, then you have no rights.
There are other classes of protection. For example, you cannot copyright business, organization, or group names. You cannot copyright product or service names. You cannot copyright titles of works or domain names. You cannot copyright slogans, mottos, or catch-phrases. In these cases, the people who own these kinds of intellectual property need to apply for a trademark. That is an entirely different type of intellectual property legal protection covered under a separate set of laws.
Can a writer use a trademarked name in his or her book? You can, but there are some details you need to know about that, and you want to exercise care about their use. One of the best summaries I have seen on this matter is by intellectual property attorney Matt Knight, and you will want to read it.
You cannot copyright such things as concepts, processes, or methods of operation. You cannot copyright scientific discoveries or technical methods. You cannot copyright algorithms or principles. Why not? Because they are covered under another section of the law, which is patent law. You can register a patent for these things if you are eligible and protect your intellectual property that way, but you cannot copyright it.
This is not an exhaustive list of what can and cannot be copyrighted. It is designed to give you a general idea. Remember that copyright, trademarks, and patents are all legal matters, and beyond “best practices,” you need to consult a lawyer when you have questions about particular issues.
The Principle of “Fair Use”
Can anybody use portions of your copyrighted content? Can you use portions of something you read in your own work without seeking permission from the copyright holder without an infringement lawsuit?
The answer is, yes, you can legally and ethically use the work of others without seeking written permission. And they can use your work. But it is subject to the strict “Fair Use” provisions of the copyright law, which is part of Title 17 of the U.S. Code. What are the boundaries of Fair Use? Here is the commentary on Section 107 of the code by the U.S. Copyright office.
Thus, other people can use small portions of your work without asking you or breaking copyright law. Also, you have a right to use small portions of the work of others in your work.
The general rule is this: use the smallest portion of the work as possible. In most cases, if you’re using more than three or four sentences or other small portions, then you open yourself to legal action for copyright infringement.
Keep in mind that Fair Use is not an excuse to steal. If the owner of the thinks your use is outside the four guidelines above, he or she can sue you for infringement. Fair Use is not permission to use copyrighted material, it is just one possible legal defense to use if you are sued.
Ways to Document Third-Party Sources
If you cannot use third-party content under the Fair Use provisions of the copyright law, then you must seek written permission from the copyright holder. Sometimes they will grant it for free, and at other times they will ask you to pay a fee. For example, big book publishers have entire legal departments that deal with granting copyright permissions.
If you use copyrighted material outside the strict requirements of the Fair Use provisions of the copyright law, and don’t seek written permission, you can be sued for copyright infringement. It’s a civil court case, not a criminal one, but the court may require you to pay tens of thousands of dollars in damages (or more) for ignoring the law. Copyright infringement is serious.
Many unwise writers think they are doing the copyright holder a favor by using copyrighted material. They believe they are helping to promote a book or song when they quote portions of the text or play a song without permission on their blog. All this is nonsense, of course. You must get written permission if your use is outside the boundaries of Fair Use.
In all cases, including Fair Use and written permission, you want to give credit where credit is due. Put the content you are using in quotation marks and name the author and the source where you got the material. In blogging, the acceptable thing to do is to link to the website or other sources where you got the third-party content.
Do you ever need to document third-party content in a formal, academic way? Seldom. But if you do, this Purdue University site offers guidance about the way to do it for books, magazines, websites, television shows, and all other kinds of media.
Never claim the work of another person as your own. That’s simply unethical, and it may also be illegal.
What is the Public Domain?
I have mentioned the Public Domain. What is it? In my books, videos, and seminars, I like to suggest that the Public Domain is like the great river of human knowledge. All the water in the river is accessible to anyone.
From time to time in history, creative people take the small cup of their intellect and dip into that vast river. They are taking ideas that have been around since the foundation of the world and reshaping them into content that is relevant to their time in history.
Once the particular expression of that idea ceases to be relevant, then it returns to the river so others in the future may dip into it.
In human history, everything was in the Public Domain. People shared ideas freely. No one owned the expression of a particular idea. However, as civilization became more complex, there was a need to protect the particular expression of an idea for a limited time. This was simply so the person who expressed the idea could make a living from their writings or other creative expressions during their lifetime.
When Paying the Writer Became Law
The protection of a particular expression of an idea did not become law until Queen Anne’s Statue in England in 1710. At that time, an author would write a book and receive a small amount of money from the printer. Once the book was published, other printers made their own editions, and the author received nothing from sales.
Queen Anne changed all that. She dictated that authors held the exclusive right about who could make copies of their books (copyright) for 14 years. And the author could sell it to one or many printers and reap the economic benefits. After 14 years, anyone could reprint the book and make money with it without paying the author. After 14 years, the book entered the “Public Domain.”
It just so happened that an upstart nation called the United States of America wrote a Constitution about 50 years after Queen Anne’s Statue. The framers of the Constitution thought that the protection of intellectual property rights was a good thing. Thus, Article 1, Section 8, Clause 8 of the U.S. Constitution says, “[The Congress shall have power] to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
The time limits have changed over the years. With some variations, authors today are protected not for just 14 years, but for their lifetimes plus an additional 70 years. That way, the heirs of the author get to dip their beaks into the profit stream.
You Can Dip Into the Public Domain
After copyright expires, the work enters the Public Domain. Anyone can use anything in the Public Domain for their own purposes. No permissions or payments are required. “The public” owns the intellectual property and individuals can use it in any way they wish without restriction.
As an aside, no matter how you decide to use content in the Public Domain, it’s still best to give credit where credit is due. For example, the poem “The Raven” by Edgar Allan Poe is in the Public Domain. But it would be stupid for you to take credit for writing it even if you changed a few lines. On the other hand, you may come up with a wonderful story idea based on the Raven, and all his interplanetary exploits after he left Poe’s chamber, and you could do that without concerns about copyright infringement. In fact, not only could you use his character, but you could quote the poem in its entirety and not be concerned about infringement.
The Public Domain is available to you to use. Nevertheless, no one can claim works in the Public Domain as their own.
What is in The Public Domain Today?
There is a large body of material already in the Public Domain. It includes any form of media such as text, spoken-word audio, music, photos, film, video, and so forth.
- Anything published in the United States in 1924 or before.
- Anything published in the United States after 1924 that did not comply with the copyright laws of the time or failed to get a copyright renewal as was once required. There is a vast amount of intellectual property available that was copyrighted after 1923 but does not have a valid copyright. The trick is to discover what is legal to use and what is not. You can pay for copyright searches, but they can be expensive.
- Anything published by the US government. This does not apply to work created by government contractors or by all state governments.
- Anything I mentioned in the list above that you can’t copyright in the first place.
This is a simple summary of what’s in the Public Domain. For a more detailed list of what is in the Public Domain, see a resource like the regularly updated Cornell University Copyright Information Center. Specific rules are often more complex. The Public Domain is being plundered by media corporations who have lobbied Congress to increase the times and conditions of copyright, and consequently what enters the Public Domain. Many see this as a massive move against the interests of the American people since the changes only serve increased corporate profits, not the flow of information.
You always need to be careful about making sure that something is in the Public Domain before you use it. Many rules apply. For example, if you find a translation from the Greek of Homer’s, The Iliad and the Odyssey that was done before 1924, it is in the Public Domain. But if someone did a more recent translation, then the newer translation has copyright protection even though The Iliad and the Odyssey is an ancient story. This is true of any later adaptation of a Public Domain work. Music is another complicated area because copyright for sheet music is one date, and the original recordings may be a later date. Subsequent recordings each have a different copyright date.
Creative Commons (CC) Explained
Creative Commons is confusing to many people and it’s hard to find a simple explanation of it. I have a sense that people who use it don’t know why they use it.
What It is
Here’s the deal. When you have created anything, you own the copyright to it automatically, as I said before. As we have seen, you get additional benefits when you register your copyright. That’s it.
However, as the copyright owner, you can license your works for various purposes. It may be writing, an image, a video, or anything where you own the intellectual property rights.
You don’t sell your creation outright, you sell or grant a license to use it in a limited way instead. The license gives the buyer the right to use the intellectual property in one particular way for a specific time.
Let’s talk about images as an example for convenience, although licensing applies to all forms of intellectual property. In a semi-fictitious example, take a major photographer like Annie Leibovitz. She takes a photo of a rock star and licenses it for $100,000 for use on a Rolling Stone cover.
She still owns the copyright, but Rolling Stone, and no one else, gets to use it under an exclusive license because they paid a fee.
The Creative Commons Role
Same thing with Creative Commons. You retain the copyright, but you agree to license it to others if they agree to use it in a certain way. You won’t get the 100 grand, but you still control your work because you have licensed it.
This is not a negotiated or private license like the Annie Leibovitz example, but the license is available to anyone willing to accept the Creative Commons license terms you select. “All Rights” are not reserved in most cases. If you use a CC license, you are granting some rights to others.
You can see a list of the various types of CC licenses here.
Why I Would Never Get a CC License for My Own Work
Personally, I would never put any of my creative work under a CC license. I value my work more than that. If someone infringes on my work, I want to be free to sue them without a CC ball and chain around my leg.
Plus, CC has been around since 2001, and they say they currently have about 1.6 billion items under their licenses. Yet for all that, they document only about 12-14 court cases (at this writing) involving these licenses around the world. That makes a CC license seem useless.
Remember, CC is a non-profit organization that provides you with the information and tools to license your work. Think of it as an information clearinghouse. CC will not back you in a lawsuit if someone uses your intellectual property in a way not specified.
Why I Almost Never Use CC-Licensed Content
There is a risk when you USE anything with a CC license in your own work. The only safe one, in my opinion, is CC BY. That means you have a license to use the text, image, or whatever IF you give credit to the creator. So, you might provide this attribution: “CC 3.0 BY J.J. Creator” for an image. However, it might be more detailed if you took CC-licensed text from a book or website. You always want to give credit where credit is due, as I emphasized previously.
But here is where CC gets insane, in my opinion. The next less onerous license is called CC BY SA. Not only does this mean you must give attribution (BY), but you are also required to “Share-Alike (SA).” For example, if you write a blog post, and you use a CC BY SA image, it means you have lost control of your own intellectual property. In using SA licensed content, you have agreed to make your entire blog post subject to the same license. My friend, Attorney Ian Corzine, calls the SA license a “Virus” that keeps spreading. If you use CC BY SA licensed content in your mix, then you become a victim of it.
All the other licenses beyond CC BY SA are even more restrictive, and you may become entrapped if you use one in any way. CC BY is probably okay, but I would never mix any other CC licensed content into my own work.
Creative Commons does not change Copyright, Fair Use, or the Public Domain in any way. It just provides a method for people to share their creative content with others who are willing to use it according to the terms of the license granted.
CC and Public Domain Foolishness
I have already stated how the concept of the Public Domain works. It covers intellectual property that is not under copyright. This is all administered by the US government under Constitutional mandate. This has nothing to do with Creative Commons.
I have also already stated that Creative Commons is nothing more than a non-profit organization that has formulated a series of non-exclusive licenses for copyrighted intellectual property. No one has to license their content via Creative Commons.
So, why am I talking about the Public Domain and CC in the same breath? It’s because CC is like a giant pig that has forced its way to the feed trough.
You see, CC has various licenses, as I have mentioned (CC BY, CC BY SA, and four others), but they added a 7th so-called “license” that they refer to as CC0 (Zero). What is it? It is a CC mark for “All rights granted,” or in other words, “the Public Domain.”
The fact is, CC does not control what is in or out of the Public Domain. The US Constitution and the U.S. Congress decide that, not some pushy non-profit organization.
CC likely thinks they are being helpful by offering a way for individuals to dedicate intellectual property to the Public Domain. I would suggest that the opposite is true, and they are adding to the confusion.
The fact is, the Public Domain is NOT a license of any kind, and in my view, should not be thought of in the context of any type of license. Once something is in the Public Domain, the content creator loses all control forever. They do not have ANY intellectual property rights, so they can’t control it in any way, like licensing it. Once work has been dedicated to the Public Domain it is there forever. CC seems to trivialize that solemn act by a creator. The Public Domain exists for the public, not for the intellectual property creator, so it should never be considered a revokable license.
CC appears to be attempting to usurp US and International Copyright Law by presuming their CC0 “license” has any power at all. In my opinion, CC0 is foolish, and we could only hope that such designations were also a crime. If something is in the Public Domain, then a CC0 license is totally irrelevant.
There are no new ideas. In the creative world, we are continually recycling ideas that have been around since the dawn of humanity. Human culture was built on borrowing and enhancing existing ideas. That’s one reason why ideas cannot be copyrighted, only a specific expression of them, for limited periods.
- The same idea can be expressed in many different ways, and that is both acceptable and legal. See my post about plagiarism. Keep in mind, however, that even the exact expression of ideas falls into the Public Domain after a period of time, and anyone can use them.
- You are legally entitled to use small portions of the exact words of others, without their permission, when they comply with the Fair Use provisions of the U.S. Copyright law.
- Remember that while some things cannot be copyrighted, they can be trademarked or patented and receive legal protection that way.
- CC should be a concern to all creative people. Avoid licensing your own work with them unless you have a special reason. Never use the licensed work of another person, except CC BY perhaps, unless you are prepared to suffer possible consequences. CC0 is not a license. It is questionable if CC0 could survive a court challenge since the Public Domain is a Constitutional and Congressional matter, at least in the United States.
When it comes down to specific cases about questionable matters, you should consult with an attorney who specializes in intellectual property rights in your local geographic area.