By Jodi Brandon
As writers, we must be concerned with copyright law — both sides of the law: not infringing on others’ copyright when writing as well as upholding and protecting our own copyright. See if you know the answer to these three true-false statements.
- Shakespeare would be able to sue the writer of West Side Story for copyright infringement of Romeo and Juliet.
- Copyright infringement is legal as long as it’s unintentional.
- A work needs the copyright symbol (the © in a circle) to be protected by copyright law.
All of the statements are false. Did you get them all correct? The reason copyright can get so confusing is because it deals in so many intangibles and case-by-case variables (as opposed to an exact, absolute standard). Despite the uncertainty that often accompanies decisions about copyright, writers are responsible for abiding by the law. To do that — as well as to protect our own works from being used illegally — we must understand the law. I won’t bore you with a history lesson on Copyright Law Through the Ages, though. I promise.
Lloyd J. Jassin and Steven C. Schechter put it simply and perfectly in The Copyright Permission and Libel Handbook: Fair use is impossible to quantify. As a writer, you can “copy” another person’s work as long as your use is considered fair use. So how do you know? Is there a magical formula, like an algebraic equation from seventh-grade math class, that writers can use? If only that were the case! There are guidelines. Here are the four factors of fair use to consider:
- Purpose and character of the use.
- Nature of the use.
- Amount and substantiality of the use.
- Effect on the existing or potential market of the use.
My lawyer recommends the same thing many legal and publishing experts do: that I ask myself the following question before taking directly from someone else’s work: If I were the author of the material I want to use, would I consider my use fair, according to all four of the factors just listed? I hate to simplify such a complex issue, but another way to think about it is this: Treat others (specifically others’ work) as you’d like to be treated. Mutual respect goes a long way. The bottom line is this: If you have even the slightest bit of doubt, get permission. (Don’t just attribute the material to its source; that’s not enough.) It’s always better to be safe than sorry when it comes to copyright infringement.
OK, so you’ve decided that your use might not or would not be fair. Now what? If the work is in the public domain, you’re free to use it as you wish. If it’s not, though, you need to find the copyright holder and request permission. Check the work for a copyright notice (e.g., the copyright page of a book). If you can’t find anything, you can search the records at the Copyright Office. Once you’ve found the copyright holder, put your request in writing. Include all the information pertinent to the decision to allow you or not allow you to use the material: exactly what material you’re using, the title and description of your work, the number of copies you expect to have published, your publisher/publication name, and what rights you’re asking for. The more information you can provide initially, the more likely a decision will be made without the copyright holder coming back to you for further information.
Remember that the copyright owner holds the cards here: He or she (assuming it’s a person; it could be a company) can ask for more information before making a decision, refuse your request, charge you for your use, or give you permission to use his or her work free of charge. You’re legally obligated to do what the copyright holder says.
The Other Side of the Fence
As writers, we not only have to worry about infringing upon the works of others, but we have to regulate our own copyrights as well, which can be difficult for the obvious reason that if our copyright is being violated, the violator isn’t going to send us a copy of his or her work with a friendly note to look for our own work inside. That said, we can’t possibly read every work written on every subject we’ve ever written about, can we? Unless we’re superheroes, of course we can’t. It’s possible to police our work on the Internet to some extent. Every once in a while, I type my name into a couple search engines to see what comes up. If there are copyright violators, I won’t find them all, but I will at least find those people who use my work and give me credit without permission. Really, though, you find your copyrighted work infringed upon by chance. The more specialized your writing is, the more likely is it that you’ll come across infringement, as you’re more likely to be reading the same sorts of material that you write. For writers who write on a wider variety of subjects and might not do a lot of focused reading on each particular subject, it’s more unlikely.
When you discover copyright infringement, let the infringer know with a cease-and-desist letter. If you see your work on-line, let the site owner know that your work is copyrighted and he or she needs to either pay you to post it (and include an attribute) or remove it.
Works for Hire
Works for hire merit mention because they’re unique in that writers don’t own copyright to their work. (This is also the case for employees who write something as part of their job, such as a copywriter or a public relations employee, but that’s not really our concern here.) The writers are, technically, the authors of the work, but for copyright purposes, the commissioning agent (say, for example, a book publisher) is considered the author. Obviously this would be spelled out in a contract before the writer begins his or her work. Even more obvious to us as writers, I’d hope, is that work-for-hire situations are not advantageous. Why would we ever want to simply give our rights away, copyright or otherwise?
Although I know I promised not to make this a history lesson in copyright law, I think it’s only fair that I mention copyright law and its relationship with the Internet. Think about it this way: You sell FNASR to a print publication. The publication then gets a web site and posts your work on it. Are you happy that your work is getting further exposure? Sure you are, but you’re also a bit miffed that you were only paid for the article to run in print — one time — in North America. Putting an article or book excerpt or whatever on-line changes things. Is your publisher guilty of copyright infringement? Perhaps copyright law isn’t the problem here; perhaps it’s the language in publishing contracts. Either way, it’s an issue that writers will certainly be keeping an eye on in the future.
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Copyright law isn’t the easiest or most fun law to understand and follow, but it is one of the most important to affect a writer’s life and work. We must pay attention to both sides of the law so that everyone’s work is protected, our own included. The Copyright Society of the U.S.A. just celebrated the first annual Copyright Awareness Week in April 2002. This is good news for writers, because the more people who know what the law means, the better.
In her role as president of JBedit, Jodi Brandon has edited and/or contributed to a number of high-profile book projects, including The Barnes & Noble Guide to Children’s Books (3rd Edition), The Buzz on Beer anthology, the Frommer’s Irreverent Guide travel series, The 50 Best (and Worst) Business Deals of All Time, and Copyright Plain & Simple. Jodi Brandon has a website and a blog.