(Cross posted from Savvy Authors blog, March 31, 2017)
So let's get legal for a bit on the blog ...
I’m going to start with a disclaimer that this is just for fun and is not formal legal advice, so there’s no pressure on you (or on me) to come up with the perfect answers. One thing you learn about the law in this area pretty quickly is that there are often no easy answers to what seem like the most simple questions.
Are you ready to take the quiz?
Here goes …
How many of the following statements are true?
- You must register your work at the Copyright Office for it to be legally protected.
- Anything on the Internet can be copied freely because it’s in the public domain.
- You are allowed to copy other people’s work for educational purposes because this is a fair use.
- Plagiarism is an infringement of copyright law.
- Copying another person’s work does not infringe copyright if you include an attribution to the original author.
DRUMROLL PLEASE …
none of them!
That’s right. Not one of those statements is completely, and unequivocally, 100% true.
Don’t worry if you didn’t know that.
Most lawyers don’t know that either, especially if they don’t specialize in copyright law.
That’s actually the first lesson of “learning to deal with the law as an author.” Not every lawyer knows a lot about every field of law. Like medical practitioners, lawyers also specialize. Most lawyers know the area(s) in which they practice but may not know much, or anything, about other areas.
In this blog post (and in the webinar) I’ll talk through some suggestions with you about when (and how) to find appropriate legal help, but before I do that, let’s go back to the quiz and check out the answers.
If you got all the answers right, that’s terrific and it shows you’ve been paying more attention than many creative artists to how the law might affect you.
If not, or if you’re not sure, let’s take a quick look at those statements again, and why they’re not true, or at the very least, not 100% accurate.
Statement 1: You must register your work at the Copyright Office for it to be legally protected.
This is not true because copyright registration is now technically optional. You generally hold copyright in your work as soon as you write it down. Registration provides a number of benefits in the litigation context (i.e. when you want to sue someone for infringing your copyright) and it gives notice to other people that you hold copyright in the work. But you don’t NEED to register your work to hold copyright in it. It’s a good idea to register, and it’s a simple inexpensive process you can do online via the Copyright Office website.
Statement 2: Anything on the Internet can be copied freely because it’s in the public domain.
Absolutely not true. Some works are in the public domain after their copyright expires (like the works of Jane Austen or the book versions of Frank L. Baum’s Wizard of Oz series – but not the movies which are still copyrighted). Other works are in the public domain because they predate copyright (like the Greek classics or the works of William Shakespeare). But copyright generally lasts for the term of the original author’s life + 70 years, so anything on the Internet that falls within a live copyright term is still protected by the law. You can’t copy it without permission. Some copyright holders might not mind if you copy their work that you found on the Internet, and some copying may be excused as fair use, but it’s always a good idea to ask first.
Statement 3: You are allowed to copy other people’s work for educational purposes because this is a fair use.
Not necessarily true. Some educational uses of copyright works are protected under the fair use doctrine, but not all of them. In the United States it all depends on how a court would interpret the fair use defense in relation to any particular educational use. Yes, there are some classroom guidelines that have been promulgated by the Copyright Office and others, but those guidelines are not legally binding. Relying on published guidelines about educational use is a good idea, but it doesn’t give you a definitive legal answer about whether or not your particular educational use is excused as a fair use.
Statement 4: Plagiarism is an infringement of copyright law.
Not necessarily. Plagiarism, which is about taking credit for someone else’s work, is not a legal wrong. There is no American law against it, except in very limited circumstances that won’t apply to most authors. If you copy someone else’s work without permission AND take credit for the work, you’ve committed both plagiarism and copyright infringement, but plagiarism only relates to the false attribution, while copyright focuses on the act of copying. In other words, you can commit both plagiarism and copyright infringement at the same time, but copyright law only applies to the copying. No law prohibits plagiarism, although it is often a breach of an academic honor code (in an educational setting) or a breach of market norms in an industry like the publishing industry.
Statement 5: Copying another person’s work does not infringe copyright if you include an attribution to the original author.
This is not true either unfortunately. While it’s always nice to attribute work you’ve copied to the original author, that doesn’t excuse you from copying that person’s work without permission. Copyright law will apply to any unauthorized copying or dissemination of another person’s work regardless of whether you admit it’s their work or not.
I’ve answered these, and many other related questions at workshops about legal issues for authors in the past. Consider the following as additional examples:
- Can you quote a song lyric or poem as an epigraph for your book chapter?
- Can your main character sing the song (lyrics and all) or recite the poem to his girlfriend in your latest hot, steamy romance?
- You’ve heard rumors of pirate versions of your e-books floating around on Amazon. What do you do?
If you’re traditionally published with an agent and a commercial publisher, the likelihood is that they’ll handle a lot of these problems for you.
If you’re working more independently, with a smaller indie publisher, or self-publishing, you might have more trouble.
That’s when it’s important to know both WHEN you need outside assistance and how best to find it.
Unfortunately there aren’t a lot of freely available legal resources for authors and artists out there, but there are some. A number of writers’ organizations have lawyers on staff who can help: the Author’s Guild and the Author’s Alliance are examples of this. However, those organizations may well ask you to become a member (and pay membership fees) before you can use their services. This may be worthwhile, depending on your situation. There are also some organizations dedicated to providing legal help to authors and creative artists, such as Lawyers for the Creative Arts in Chicago. A Google search may help you find a group in your area that provides workshops, seminars and advice on the law for authors and artists.
While your friendly neighborhood lawyer (you know, the one who handles your real estate transactions and estate planning) probably won’t know much about publishing law, she may know people who do. It’s always a good idea to reach out to any lawyers you do know and ask them for recommendations. There are also now online services that give you ratings and specialty areas for lawyers in given areas: for example, avvo.com. Most lawyers should be prepared to do an initial client interview without charging for it and should set out their fees for you before you sign with them. Make sure you do your homework and talk to anyone you’re thinking of working with before you retain them to do anything for you.
You can also talk to law professors specializing in publishing law for suggestions both on whether you need a lawyer and whether they know any legal practitioners who can help you. I’m a law professor, but not currently a practicing attorney so, at the moment, I can give people information and suggestions, but I can’t enter into formal attorney-client contracts. Some law professors do practice law, and may be prepared to take you on as a client. Additionally, many law schools have legal clinics that help local clients free of charge. In these clinics, law students usually do most of the work supervised by practicing attorneys. Many of these clinics unfortunately don’t focus on law related to the publishing industry, but it’s always worth asking around.
In some situations, you’ll only need a lawyer to do something simple, like send a letter of demand to a copyright infringer and/or to, say, an online retailer selling infringing books, and that will be the end of it (and shouldn’t cost too much). If court proceedings are a possibility, you’ll have to take a more long term view and discuss with your lawyer whether the costs of proceeding are worth the effort. Sadly, often they’re not, although in copyright litigation, if you win your case, the damages awards can be very significant.
Hopefully, you’ll never be in a situation where you need serious legal assistance and, if you are, hopefully you’ll find someone affordable and knowledgeable. Law shouldn’t be a bar to creativity, and authors shouldn’t have to worry about the law too much in their day to day creative lives, but it is a good idea to have a basic understanding of your legal rights and obligations in case any issues ever do crop up.
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