Our Lawyers Made Us Say This: What you’re about to read is a well-researched, honest attempt at explaining copyright law for authors, with a specific eye to the challenges and realities for authors who publish primarily on Kindle. It is not legal advice written by a practicing attorney, so you should not take it as such. Instead, use this to help you make decisions about what kind of copyright lawyer to talk to when your career reaches that point, and to know the best questions to ask when you do.
Okay…on with the article.
How Not to Get Your Book Stolen (Maybe)
There’s a lot of bad information, and bad attitudes, about copyright floating around out there. Some people still snail-mail themselves copies of their manuscripts as a “Poor Man’s Copyright”, unaware that modern software does the same thing every few minutes and that a court won't care if your manuscript was sent in a sealed package through the USPS. Others are completely cavalier about the whole thing, figuring that every stolen copy is free publicity for their work.
The rest of us fall somewhere in between. I can’t tell you what the best answer is: it varies from author to author. But I can give you the best information I have, so you can find that answer for yourself, starting with…
What is a Book Copyright?
A copyright is a legal protection for a creative work, meaning that anybody who wants to reproduce it has to pay you for the privilege. Perhaps predictably, a book copyright is legal protection specifically for books.
In theory, anything you create is copyrighted the instant you created it. This sentence was copyrighted as I wrote it. The issue is in proving who wrote it first. If some author in Switzerland copies your manuscript and puts it on Amazon a month before your launch date, you have to demonstrate that you wrote all those words first, and that it’s not you who stole the book from her.
That’s where the “Poor Man’s Copyright” came in, back in the day. If you finish the book and mail it to yourself, then leave the postmarked envelope unopened, that can prove (for certain definitions of “prove”) that you wrote it no later than the date on the stamp. Metadata on your Word file, or an email, can do the same thing. It’s not ironclad, and it’s not a technical, legal copyright, but it’s better than nothing.
To create a full, technical, legal copyright, you need to do three things. You have to create your rights, register a claim with the government, and provide notice of your copyright to people who interact with your book. Let’s look at those steps individually.
Create Your Copyright
You already did this. Like I said, your copyright is created as soon as you write it down. When you type THE END, the book is copyrighted. Each chapter got copyrighted in and of itself as you finished. With each edit, you create copyright for the new version, in addition to all the old versions you wrote on the way.
Register Your Claim
Here’s where you get the law, and the government, involved. It costs money (but not a lot of money) and takes time. Luckily, in this automated and digital age, it takes a lot less time than it used to.
Go to the Electronic Copyright Office’s website. If you haven’t yet, you’ll need to create an account. Once you’ve done that, you’ll click on the “Standard Application” option and register your work.
It’s a simpler process than setting up your book on KDP, and shouldn’t take you more than fifteen minutes. The ouchy part is the $55 submission fee, which they’ll charge just the same way as any other internet purchase. Be prepared to submit an electronic copy of your work before it’s all done.
Your claim is registered as soon as you finish, and you should receive an email of confirmation more or less instantaneously. There is an option to do this by physically mailing in a paper copy of your book, but that costs more and takes longer without adding any extra protection. Stick with the electronic option.
Provide a Copyright Page
In theory, your work is copyrighted without a copyright notice page. However, different people do different things with their copyright. Especially this century, there’s a strong culture of free sharing with copyrighted material (and a lot of misunderstandings of what constitutes “fair use”), so it’s best to spell out clearly in your book that it is copyrighted, and you don’t want it shared without permission.
You’ve seen copyright pages. That’s the page, usually at the beginning of the book, with a © symbol on it, along with the name of the person who owns the copyright, and the year of its first publication. The US Copyright Office lists several specific places where a copyright page can go and be valid. Those that apply to ebooks include:
- The title page
- The page immediately after the title page
- The first or last page of the main body of the work
- Any page within the work provided:
- There are no more than ten pages between the front or back page and the work’s main body
- The notice is prominent, and set apart from other matter in the book
This page accomplishes two things. First, it tells anybody who reads it that you have a copyright, and you take it seriously. Second, it provides additional proof of the year you copyrighted the work in case somebody tries later to claim they came up with it first.
Our lawyers also made us say this: everything in this article is about US copyright laws. Most countries with robust copyright protection have something similar in place, but different enough that you should double-check for those differences. Again, when the time is right you should consult a local lawyer who specializes in copyright law before making any final decisions.
Why Do You Want A Book Copyright?
So, I’ve already told you that ⅓ of your job is already done the moment you write your book. Why go through the effort and expense of the other two thirds?
It Takes Priority in Court
When it comes to suing somebody over copyright, there’s a very real possibility of one party forging some documents so the records contradict one another. If you have registered and posted your copyright according to the rules, your version is considered the truth unless there is extremely strong proof to the contrary.
You Need One to Sue
Further, if you want to actually file a lawsuit you have to prove a registered copyright. It’s possible to do this after the fact, but you’ll be busy with other things. You can still send a cease-and-desist request and similar actions without the registered copyright, but for the big stuff you must have it in place.
It Increases the Damages
Without a registered copyright, there is a good chance that even if you win the lawsuit, your court and attorney fees will be more than the judgment against your opponent. With a registered copyright in place, you can also sue for the cost of the lawsuit. Since some of the largest bad actors in this sphere count on just spending you into submission, a registered copyright can be your best defense against them.
Beyond those basics, there’s a list of questions authors ask again and again. Like the rest of this article, don’t take these answers as legal advice. They’re the best of my understanding, but I am not a copyright lawyer.
Can I include a famous quote?
If you want to include a quotable in your book, that’s generally okay as long as you attribute it properly. Just a sentence or two, attributed to the originator, can be a chapter heading, something you reference, or even what one character says to another. For famous figures from history, this is definitely fair use (see below). For living people, most are happy for the publicity and respect inherent in having been quoted.
The exception to this is song lyrics. Even a sentence from a song bumps up against copyrighted material, and the Powers That Be in music do not play nicely about that. Unless you personally know the musician who wrote the song and that musician isn’t under contract with a recording label, steer well clear of this.
Do publishers buy copyright?
Sometimes. Because you own the copyright to your work, you are welcome to sell that right or licenses to that right to somebody else. However, you don’t have to sell that right all at once, or forever. Some examples of rights a publisher might buy include:
- First-time print rights, meaning they buy the opportunity to print your work once, but that you retain the right to have other people print it later
- North America rights, meaning they own your copyright for publication in North America, but you are free to do what you want with it in other markets like Australia or China
- English rights, meaning they buy the english language version, but you can get it translated and sold in other languages if you want
If you are getting published, your contract will specify exactly what kind of rights the publisher is buying. You will want a lawyer or agent to review this carefully.
How does public domain work?
Copyright expires 70 years after the death of the originator of the work. (There are some exceptions to this, but that’s how it works for our purposes.). After that time, anybody can use the work in any way they like. Work with no existing copyright is considered “public domain.” That’s why you only see one publisher putting out books by Stephen King or Lee Child, but several different publishers doing things with Poe, Bronte, and the Koran.
If I use a ghostwriter, who owns the copyright?
There is a concept in copyright law called “Work for Hire”, which applies to any situation where somebody creates a copyrightable work because somebody else paid them for it. In a work for hire situation, the person who paid the money owns the copyright immediately, just as if he had been the one to create it.
If you use a ghostwriter, then you own the copyright. If you work as a ghostwriter, your client owns the copyright.
Work for hire can also apply to work you create while on the job. Very few night watchman gigs where you write between rounds will ever come after you for the novel you wrote on the clock, but it is theoretically possible.
Is an idea copyrightable?
You sometimes hear about people who don’t want to send a strong description to an agent or publisher because they’re afraid that party might “steal their idea.” First of all, this is extremely unlikely. Agents and publishers are consistently deluged with fully realized stories that have been written. They don’t have time to take your idea and turn it into a finished novel.
Second, ideas cannot be copyrighted. Copyright attaches as soon as it is “fixed in a tangible medium”, i.e. written down, painted, or typed into a word processor. If you write “A great novel would be about a weremouse who turned into a cat during a full moon,” you would own the copyright for that sentence. If somebody read the sentence then actually wrote a novel about a weremouse who turned into a cat during a full moon, they would have copyright for that novel…but they also couldn’t sue somebody who wrote a different novel about a weremouse.
Third, even if somebody stole your idea, do you really think they could write the story as well as you could? Of course not. Besides, when you love a book, you often want to go read a similar book. This isn’t something authors should worry about.
What is “Fair Use”?
Copyright law says that some copyrighted work can be used fairly without compensation, including excerpts for criticism, comment, new reporting, teaching, scholarship, and research. This is a very tricky topic, and one I won’t say more on at this time except that it’s worthwhile to ask your lawyer specifically about any time you think you’re applying fair use to your work.
What happens if I use material from another source?
As long as you have either permission, public domain, or fair use in place then this is okay. However, if you register a copyright you have to make it clear you have done this. Provide the material you quoted, its attribution, and your reasons for believing it’s okay to do so.
If you use material from somebody who’s still alive, get permission. They’ll appreciate the respect, and might even help you promote your book. If they are not alive and the material you are using still falls under copyright, then get permission from their estate or whoever has control of that copyright.
What if I do a revision, or new edition?
Each revision creates a brand-new copyrightable work. We don’t recommend you re-register every single small typo you fix, but definitely do so if you update with a new cover, or do an edition with substantial revisions.
Final Thought: The Dirty Secret
Here’s a dirty secret about copyright you should keep in mind before you spend a lot of time, or any money, on it. You have to think about enforcing your copyright. If somebody distributes your work without permission and paying you, in theory you can sue them for damages. In reality, though…
- The person doing the distribution might well be in another country, which has different laws and might not respect your copyright at all
- If they do live in your country, they might not have enough money to be worth suing. You can only collect damages from somebody with assets.
- If they do have assets, you might face the opposite problem: a copyright trolling company that has so much money their lawyers will drive up the fees beyond reason
This isn’t a reason to not file copyright, but it is information you should know.
If you want more information about copyright, training #475 goes into more copyright detail.
Image by Gerd Altmann.