This article kicks off a 12-part series I’m writing aimed at new authors, indie authors, or people thinking about publishing. The entire series will give you a pretty in-depth look at the ins and outs of publishing. If you aren’t interesting in this topic, check back at the end of January when I get back to more general topics.
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Copyright. It’s a word that gets thrown around the writer’s community with careless abandon. Almost everyone talks about copyright at some point or another. And yet, with all of the discussions that happen about it, there’s a surprising amount of misinformation and just flat-out bad advice. I’ll start by saying my obligatory comment about me not being an attorney and that you shouldn’t take of this as legal advice, and if you have specific legal advice you should seek the counsel of qualified attorneys in your area, and that this advice is simply common sense advice that you may elect to take or leave and your own discretion. Now that that’s out of the way, let’s start by dispelling some of these rumors.
A surprising number of people buy into the concept of “The Poor Man’s Copyright”. The idea goes something like this: you finally finished your book. You print the entirety of the document, cram it into an envelope and seal it and mail it to yourself. The date-stamp from the post-office “proves” copyright, so you’re totally fine, right? Well, no. No, you are not. This type of “copyright” is not legal and binding in any way and doesn’t hold up in court. If you ever get involved in a copyright infringement suit, all the other side has to do is argue that you used one of many different methods to open the envelope, change the contents, and then re-seal it. Reasonable doubt is created. The judge will ask, “What else do you have?” Your answer, of course, would be nothing. Regarding the Poor Man’s Copyright, the US Copyright Office has this to say: “The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.” (https://www.copyright.gov/help/faq/faq-general.html#poorman)
A more modern take on the idea above is that you can just email yourself a copy of the file and, viola! Date-time stamp approved. Now you’ve “proven” your copyright. Hooray! ….except that you haven’t. It still falls victim to some of the same types of problems as above. It’s easy for people to change the meta-data of the file itself by resetting the BIOS clock and making the computer think it’s a different year. It’s also very easy to change the date-time stamp on emails. I used to routinely get emails from spammers that stated that the email was sent January 1st, 1900. Somehow, I don’t find that very probable. The point, again, is that this type of “copyright” isn’t real and doesn’t provide protection. It’s a fallacy.
But, wait. I’ve heard that Copyright is technically automatically applied the moment I create something, you say. Of course. And, technically, that’s right. The US Copyright Office says: “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” (https://www.copyright.gov/help/faq/faq-general.html#mywork).
Sure, now you ask, “why bother copyrighting something if it’s automatically protected? I made this, and I think I can prove that.”
That brings us to the real, underlying misconception that many authors have about copyright. It’s not about who created the content. It’s about who owns the content. All an unscrupulous person would have to do is forge a contract (which is why it’s a very good practice to get everything you signed notarized), that basically says “yeah, Author created this work, but they did so under contract for us.” Guess who owns the copyright in those cases? I’ll give you a hint, it’s the company who created the contract. Then you’d have to fight a case where your argument is that you never signed that contract, but they have a document with your signature on it saying that you did. Court cases are always about what you can prove. Documentation is everything. Not having documentation isn’t proof of not having done something. And yes, I know that this particular example is unlikely. But, it is hypothetically possible. And if you never officially registered a copyright, it’s even easier for them to do that.
I hear you saying, “Johnathan, that’s a neat example, but that kind of stuff doesn’t happen in real life – you’ve been writing too much.” That may be true. But, let’s look at it this way. As a writer, you need to think of yourself as a business, and your books are your product. An automobile manufacturer doesn’t just leave their cars laying all over town with the keys in the ignition and the door unlocked. A clothing store doesn’t leave racks of expensive clothes sitting on the street corner in hopes that no one steals it. As an author, you should want to protect your products in the same way. After all, you put a lot of thought and time and effort into making them.
While fraudulent contracts are hypothetically possible, but admittedly not probable, another very real problem exists for authors today – plagiarism. It is easier than ever for people to copy the entirety of your book, change your name to theirs, and then re-upload it to different markets. With literally millions of books floating around in circulation, you may not be aware that this has happened to you. And I’m not talking about someone stealing your “idea” for a book – unfortunately, that’s not protected. I’m talking about people actually stealing your entire book. And it has happened over and over and over and over, and countless more times, I’m sure. But I think the point is made. This is a very real problem. In fact, while researching this post I discovered that my newest novel, Skin Deep, had been pirated and made available as a free download on a shady site.
So here’s the thing. yes, technically I own the copyright to Skin Deep and my other books. But if I don’t file those copyrights, it leaves me in uncertain ground. But here’s one of the most important factors:
You CANNOT create a copyright-infringement lawsuit on an unregistered copyright. So, while you may think that the poor man’s copyright may protect you from having other people say that you stole their work (which it really doesn’t), it doesn’t do anything at all to allow you to open a suit against those who infringe your rights. So all of those Cease & Desist emails that you send telling people that you’ll sue them are just empty words. Don’t believe me? Check out the US Copyright Office’s “Circular 1“, which outlines this requirement. Part of the reasoning behind this is that Copyright infringement cases are Federal Cases heard in a federal court.
By having a copyright certificate in hand, you can get a US Federal Court to issue a temporary injunction legally barring the infringing entity from further use or distribution of your work. Without that certificate, they won’t do it.
Technically, you can send a Cease & Desist Letter without actually holding an officially registered copyright. However, as I mentioned, without that the words are just empty and meaningless. If someone tries to challenge you, there’s little you can do about it.
Furthermore, filing a copyright with the copyright office can ensure that you are awarded the fullest extent of monetary damages possible for copyright infringement; up to $150,000 in statutory damages. Also, if you win, it ensures that the infringer has to pay your attorney’s fees. Without a properly registered copyright, even if you do end up winning a case by using a different grounds for the suit, the judge may not be able to award compensation and you may still owe your attorney. You might be in the hole $10,000 or more in attorney’s fees even though you won.
Another thing to consider is that since the Copyright is filed with the Federal Government, there are some limited protections in cases where a foreign entity has infringed upon your rights. These things are defined and explained in Circular 38a.
Another very important thing worth understanding is that Copyright takes a long time to completely process and there are benefits for doing it right away. When I copyrighted Exodus it took 6 months for the application to be approved completely. Thus, copyright protection should be like a fire extinguisher: you should get it long before you ever need it. If you wait until you need it to start, it’s too late. But, there’s another reason that you should file the application quickly. If you file the copyright within 3 months of publication, then the law allows for the maximum extent of damages and the other party to pay your attorney’s fees. If you wait longer than 3 months, you may only be awarded “actual damages”, which may turn out to be a trivial amount, and the other party is not obligated to pay for your attorney. If you wait more than 5 years, the court is not required to take your original works as self-evident proof (Prima Facie Evidence) and may not award you anything at all.
Convinced yet? Maybe you’re asking how to go about filing a copyright. No problem, it’s easy. I’ll explain.
First, your work should be finished and published before filing a copyright. That’s important.
As of this writing the current fees for copyrighting are $35 for a single filing, and $55 if the book was written by two or more people. That’s very, very reasonable.
Pop on over to: https://www.copyright.gov/registration/ and create an account in the eCO system.
Fill out the forms, and upload a digital copy of your file to the system. (Alternately you can mail in your application with 2x copies of your book).
Then you just sit back and wait. And then wait some more. It takes months. But eventually, your Copyright Certificate will show up in the mail. Keep it in a safe place.
That’s it. Tune back in next week when I talk about the difference publishing venues that are available to authors, as well as some tips to avoid bad publishers.