Copyright, Should, Shouldn't

maestrowork said:

You'll need proof of copyright once you've sold it (to protect the publisher). But not before.

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Can you elaborate, Maestrowork? Do you mean the publisher will ask you to prove you wrote it or what?
Or are you referring to the technical and practical stuff the Publisher automatically does during the publishing process and which does not really concern me in the unpublished stage?

As the author of an unpublished manuscript, your business records are sufficient. The best business record would be an excrutiatingly detailed, regularly kept submission log that shows the file name, exact address, exact postage, exact date, nature and date of response, etc. That's a record used to support deductibility of postage (etc.) on one's tax return, and can be used to support the date upon which the version submitted to the publisher was "fixed" if there is ever a "priority" issue.

All of that said, if you're worrying about how to prove that you wrote something you're not spending enough time worrying about other things that matter a lot more. Relax. If/when there's an issue of proof of authorship and date of fixation, your lawyer will deal with it; unless you know the evidence law of both the US (and all of its jurisdictions) and of all potential nations in which one could conceivably file a copyright claim (hint: nobody does), you won't find definitive answer to a general case.

Jaws, I have a copyright question. It's a book first published in 1948, was out of print for a long time, recently reprinted, author dead (1988). A very little known book which has always fascinated me; it's a kind of fable. Think The Alchemist and you'll get the idea.
I'd like to write something similar. That is, the framework is similar, but the characters are quite different, sex of the main character is different, as is the setting and dialogue and situation. Yet anyone who reads both books will immediately see the similarities and parallels.
It's not that I can't write my own; this IS my own. Yet the similarities are there. Is that a problem? I'm thinking of Brad Templeton's Myth no 6: basing my work on somebody else's.

It depends.

Really.

What you're asking requires an opinion of counsel rendered within an attorney-client relationship, and that's just the starting point. Some of the relevant factors include:

• The residence of the author at his/her death
• The location of the current publisher and/or copyright holder
• Your residence
• Your publisher's residence (note: this is somewhat indeterminate unless you're already under contract)
• Whether any other derivative works have been prepared (e.g., films), and if so the details of their creation and statut
• Whether the previous work fell into the public domain for failure of copyright formalities (e.g., wasn't renewed on time)

Notice that none of this even mentions the substance yet; that's just the necessary preliminaries before comparing what you actually write!

You do not need proof of copyright when you sell to a publisher. No legitimate publisher would ask for it. And if they did ask for proof, most of us couldn't provide it.

Any contract from a legitimate publisher has a clause that covers this. This clause simply states that you, the writer, affirm this work to be original, and that you wrote it. Period. That's all there is to it, and the publisher is 100% off the hook.

Any publisher who asks you to prove you write something is a publisher to run away from as quickly as possible. All any good publisher will do is have a clause in teh contrat that says you affirm you write the work in question, and that it is original. This covers the publisher completely.

Jaws said:

It depends.

Really.

What you're asking requires an opinion of counsel rendered within an attorney-client relationship, and that's just the starting point. Some of the relevant factors include:

• The residence of the author at his/her death
• Whether the previous work fell into the public domain for failure of copyright formalities (e.g., wasn't renewed on time)

Notice that none of this even mentions the substance yet; that's just the necessary preliminaries before comparing what you actually write!

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Hmm. these two points make me hopeful. He lived in the Lebanon and died there; his book was first published there, in 1948. Copyright formalities may not have been renewed. The copy I have is a 1962 First Edition. I'll investigate further, and thanks.

Jamesaritchie said:

Any contract from a legitimate publisher has a clause that covers this. This clause simply states that you, the writer, affirm this work to be original, and that you wrote it. Period. That's all there is to it, and the publisher is 100% off the hook.

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I'm afraid this overstates the effect of such a clause. A third party—such as the rightful owner of an infringed copyright—is not bound by the contract, and ordinarily will sue both the publisher and the author for infringement. The contract just allows the publisher to try to recover its share of damages from the author…after it pays the victorious original copyright holder. As few authors have the kind of assets necessary for such a payoff, it does not by any stretch of the imagination mean the publisher is "100% off the hook."

All of that said, the sequence of events was described correctly: Author submits Manuscript. Publisher accepts Manuscript and offers contract, which contains an affirmation of copyright clearance. Author signs contract (hopefully after limiting the affirmation to "best knowledge after reasonable investigation"). Copyright Holder sues Author and Publisher, and wins. Publisher sticks Author with the check, but must make good on it to Copyright Holder if Author can't.

aruna said:

Hmm. these two points make me hopeful. He lived in the Lebanon and died there; his book was first published there, in 1948. Copyright formalities may not have been renewed. The copy I have is a 1962 First Edition. I'll investigate further, and thanks.

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They shouldn't make you hopeful. You've just described the worst possible conjunction of facts: Foreign resident of a non-Berne nation and renewal due between 1976 and 1992. You need counsel on this.

Jaws said:

They shouldn't make you hopeful. You've just described the worst possible conjunction of facts: Foreign resident of a non-Berne nation and renewal due between 1976 and 1992. You need counsel on this.

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I certainly will get counsel; I'm a member of the Society of Authors and we get free legal advice. But I think it wil work. It's really only the first two or three chapters that have a few parallels - after that it's completely my own work. When I've started and see where it's going I'll ask again. Thanks.

Jaws said:

They shouldn't make you hopeful. You've just described the worst possible conjunction of facts: Foreign resident of a non-Berne nation and renewal due between 1976 and 1992.

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Are you sure that's the worst? I mean, it could be a foreign resident of a non-Berne nation, renewal due between 1976 and 1992, plus the literary property being administered jointly by the Howard, Eliot, and Conan Doyle estates, plus the title being sold into Pinnacle's unpublished inventory as part of a basketed deal by a packager that went out of business just before Pinnacle's ship went down, plus having an uncomfortably similar work made into a hugely successful movie by a Hollywood studio that has a bad attitude and lawyers to burn.

Or maybe not.

All the same - I'm not worried. The "ideas" I am using are so generic as to be almost banal.

OUCH!

Hapi, I winced when you mentioned Pinnacle. They still owe me a lot of money, money I'll never see.

-Ann C. Crispin
Author: STORMS OF DESTINY/HarperEos
www.accrispin.com
Now available!