Copyright Issues: The Difference Between a Copyright and a Registered Copyright

So what’s the big deal about registering a copyright for my book? Don’t I have inherent copyright protection when my work is created? These are a couple of questions we commonly get when either publishing works or performing author consulting services and, unfortunately, most authors don’t understand the distinction between copyright and a registered copyright. Here’s the lowdown on the difference between an inherent copyright and a copyright registered with the United States Copyright Office. (Remember that with any copyright issues, you should consult a licensed lawyer who actually knows something about intellectual property. Not all lawyers are familiar with intellectual property, and we certainly aren’t a legal authority and this article is purely informational.)

As a creator of any intellectual property, you do have an inherent copyright for your work. According to the United States Copyright Office, a copyright is:

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. [And] 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.

Here’s the rub. When you finish your book, legally it is your work. However, with this “inherent” copyright you cannot sue someone for copyright infringement. You must register your copyright to have standing in a federal court to take legal action against someone who has hijacked your work. Think of your inherent copyright as an old guard dog with no teeth. Your trusted companion will bark at a burglar all he wants, but your guard dog can’t actually do any damage to the would be sneak thief. A registered copyright gives your guard dog a set of sharp metal dentures fit to chomp copyright infringers with Cujo-esque precision.

We would also strongly suggest that you file for a copyright as soon as your manuscript is finished (and by finished we mean independently proofed, edited, and read by disinterred parties) and before you start shopping your book to agents or publishing houses. It’s uncommon, but the unscrupulous out there could steal your work. Another thing to watch out for is anyone what wants to register a copyright under their name or company’s name. Most legitimate publishing houses can register a copyright for you as your agent. This means that the publishing house is simply filing the paperwork on your behalf, and you are the holder of the copyright. Should you agree to have a third party register a copyright under their name, no matter what “they say”, you’ve lost all legal rights to your work.

Registering a copyright can be as cheap as $35, so it’s an inexpensive insurance policy to protect your work. For more information about copyright registration, visit the United States Copyright Office’s website here.

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Copyright Issues: Fair Use

As an author or writer, there’s nothing more important in a digital age than protecting your work. Sadly most authors think they understand the basics of copyright law, but actually few have a good grasp of copyright law. Over the next couple of weeks, we’ll be sharing some cosmic truths about copyright law we’ve ferreted out of the system in our time publishing books. These articles will only cover copyright issues in the United States. It’s hard enough to keep up with these issues in the States, let alone the other countries in the world. Also, keep in mind that we’re not offering legal advice, and you should consult a licensed lawyer in your state regarding any intellectual property issues.

The last statement isn’t just something we threw in to legally cover ourselves. If you’re about to embark on any legal proceedings regarding a copyright, you’re going to need an intellectual property Matlock. This is because copyright law is a rather squirrely issue. There are very few actual legal devices that spell out what constitutes copyright infringement.

For example, United States copyright law allows for “fair use” of copyrighted materials. Most authors are vaguely familiar with the concept of fair use and most of us have seen Youtube videos of entire television programs or songs with the statement, “used under fair use.” While posters of copywritten material think there’s some sort of magical loophole in copyright law that says, “if there’s no financial gain to ripping off someone’s content, it’s fair use” or “if I post this material with a fair use statement they can’t touch me.” Nothing could be farther from the truth.

According to Attorney at law and the NOLO website’s Legal Editor, Rich Stim, fair use is:

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

In dealing with the written word, fair use is a useful clause in copyright law that allows an author to include quotes from copyrighted material—if the use of that material is transformative in nature. That doesn’t mean that at the beginning of a book’s chapter you can slap a quote from a Guns N’ Roses’ song just because you think it’s cool. This proviso in copyright law is intended for those who are commenting or criticizing a copywritten work. So if you’re reviewing Avengers: Age of Ultron, describing a scene or using a quote from the movie’s dialog is something that could be considered as criticism and transformative. Basically, the public is gaining an additional reward in your commentary by outlining short pieces of the copywritten work. (Thanks again for the clarification Mr. Stim.) Posting the entirety of Avengers: Age of Ultron on Youtube with the description, “I liked it a lot and by the way I consider this fair use,” probably doesn’t meet the standard.

Here’s the rub with fair use and most anything associated with copyright law. United States copyright law doesn’t actually state how much material can be used under fair use and what a hard and fast definition of transformative is. Judges and juries decide what is fair use on a case by case basis. In an extreme example, Mr. Stim could sue us for using his two sentences in this blog post. A judge or jury will have to ascertain if we’re in violation of Mr. Stim’s copyright by using his material. (Here’s to hoping that Mr. Stim will see the use of his quote as us commenting on his work as transformative in enhancing author’s knowledge of the subject.)

The issue of fair use is so thorny that the United States Copyright Office only really comments on court decisions of fair use cases. The Copyright Office maintains an index of cases of this nature to assist lawyers and laypersons in understanding what the courts have interpreted as fair use. The point is; you can never truly be sure that using someone’s copywritten material will be considered fair use by the copyright holder and a court.

So what’s an author to do when you want to quote a short passage from a copywritten work? The best practice is to obtain permission by the copyright holder. While this process can be a pain, it does a couple of things for authors. First, if the copyright holder agrees to your use of his/her materials, you can’t be sued. Second, you can make connections with other authors by asking if you can use their work. Aside from potentially making a new friend, most authors are flattered that you think enough of their work to quote it. That quoted author, in turn, will probably mention your book to their friends or in a social media post. You get the benefit of doing the right thing and possibly helping your marketing efforts in the process.

In the next few weeks, we’ll delve a little deeper into some copyright issues as they pertain to authors. But here’s a good rule of thumb when dealing with fair use: if it belongs to someone else, ask if you can use it.

Federal Judge Rules "Used" eBooks Cannot Be Sold

Tuesday the Christian Science Monitor reported that a Federal Judge has ruled that digital content is a copyright holder's "original work". The legal nuance came to light with an online company ReDigi who sells "used" MP3 files. According to ReDigi, they have developed software that can track if a digital file has been purchased through an online retailer. The company provides a peer-to-peer platform to sell that file, much like eBay provides. ReDigi then checks the seller's computer to make sure the file is no longer there and Bob's your uncle. The theory is that the file is sold as one would resell a used print copy of a book or used CD. ReDigi was sued by Capitol Records over copyright infringement and  Federal Court Judge Richard Sullivan ruled this practice does violate the rights of works produced by Capitol Records.

So what's the big deal? Consumers have a right to believe something they purchased is their property to dispose of as they wish. Copyright holders have a right to expect to be fairly compensated for their works. The two positions are diametrically opposed because a copyright holder gets the shaft when a "used" digital copy of their work is sold and there is no compensation for their work. The consumer reaps the benefits of reducing their cost of digital media by resale while still experiencing a creative work. So where is the parity to be found?

It's certainly not within ReDigi's promise that their software is 100% accurate determining if a file is "used" and they wouldn't just copy digital files for resale. As the representative of copyright holders, there is no easy way to verify that ReDigi is the paragon of virtue they present themselves to be. For all anyone knows, ReDigi or any other company following the same model, won't simply rip a file and certify that copy as "used". There is no evidence that ReDigi holds such shoddy business practices, but how can copyright holders verify such a thing isn't going on? In God we trust and all others pay cash as the old saying goes...

The second issue is why wouldn't ReDigi and like platforms simply pay a percentage to the copyright holder?  The argument is in the first-sale doctrine of copyright law which basically says once a copywirtten work is sold, the copyright holder's interest is exhausted in that product. The copyright holder has the right to produce their work in any format of their choosing. That's why selling a used book is legal and making a copy of a book and selling it is not. The thought is that a copyright holder is compensated enough by that initial sale and that's enough. Platforms like ReDigi could of course compensate copyright holders, but that would cut into their profits of selling something they did not create.

The true shame of all of this talk of used digital copies and first-sale doctrines is that we as a society do not value the creative process. Forget for a moment the legalities concerned with copyright law and the ReDigi issue. As a producer in the creative marketplace, we supply media to fulfill consumers' demand for entertainment. Along the way those involved in the creative process are told it's ok to give your time, effort, and energy away for free because we can always create more content seemingly out of thin air. You can always come up with some alternative income stream to support yourself because in a digital world we demand cheap/free media. Does that really seem right to you? Would you ask someone to come over and paint your house for the payment of a nice comment on Facebook?

The true resolution to the ReDigi issue is for consumers of media to simply opt out of the "because it's digital I have an inherent right to consume someone's work for free" mentality. Support your favorite authors and musicians. Buy a used copy of a book and if you really like it, send a dollar to the author. If you dig an album you heard on Spotify (which does pay rights holders by the way) pay to see a live show. If we as a society do not take small steps to financially support the creative process, there will come a point that no one will wish to be creative. What a dull drab world that would be.