Is your novel protected by copyright law? This author and attorney explains

Jodé Millman

Many writers wonder—and sometimes worry—about whether their work is protected under copyright law. The short answer is yes, according to this author and attorney. For the long answer, have a look at this Q & A.

by Jodé Millman

What the heck is “©” and what does it mean?

It’s the copyright bug, and we see it everywhere—on paintings, photographs, movie credits, magazines, CDs, and even on the rights pages of books. The fact is, that little symbol represents a powerful tool in the writer’s arsenal. The symbol protects you, your heirs, and your work from theft and infringement, and signifies that you are the exclusive owner and author of the work.

Thanks to visionaries like Mark Twain and James Fenimore Cooper, in 1909 the United States enacted the first copyright statute, which recognized the necessity that artists’ works be protected as their stock in trade. As technology has advanced in the publishing, advertising, music, and entertainment industries, the law has been amended. The most radical revision occurred in 1976, and that’s the version that protects us today.

What does the copyright law accomplish?

It protects a work, in our case a literary work (material contained within a book, periodical, manuscript, phono-record, film tape, disk, or card) from the moment it is created. From the first letter you type on your computer, your work is protected from infringement. It makes no difference whether the work is published or unpublished, both are entitled to equal protection under the law. In fact, any derivation (an abridgement or translation, for example) of your work is protected as well. You alone, as the owner of your copyright, are entitled to reproduce, display, and distribute your work for the term of your life plus seventy years.

Don’t be afraid to catch the bug—the “©” bug—because it will immunize you from the literary pirates of the world.

Whom does the law protect?

If you are the original author, you are entitled to protection under the law, as long as what you’ve created is not a work for hire. This refers to something you create within the scope of your employment (and that you haven’t been been commissioned for). Under those circumstances, the copyright belongs to your employer. For example, if you have been hired by a magazine to write an article, or by a publisher to write a series like Nancy Drew or Goosebumps, the work does not belong to you and you are not entitled to file for copyright ownership.

What exactly does the copyright law protect?

This is perhaps the most confusing aspect of the law. The statute states that “a literary work is expressed in words, numbers, or other verbal or numerical symbols or indicia.” Huh? In plain English, the statute covers your words, your expression, and your creation as an author, but does not cover an idea. For example, William Shakespeare’s Romeo and Juliet is a story about star-crossed lovers. Numerous works, including Leonard Bernstein’s West Side Story, Stephenie Meyer’s Twilight, and E.L. James’s Fifty Shades of Grey have reinvented this idea behind the tragedy. These authors are each entitled to individual copyright protection because they have reinterpreted this universal idea into their own words. Generally, ideas are not protected by the law—unless they are designs, inventions, or processes, in which case they are covered by patent law.

Similarly, titles, phrases, and slogans are also not protected by copyright law. Phrases like “With a name like Smuckers, it’s got to be good,” and “Good to the last drop” are protected by trademark law, because they identify goods and services in the marketplace.

Finally, the law does not provide protection for works in the public domain. These are works that are no longer subject to protection due to the expiration of their copyrights, or the failure to meet a requirement of the copyright law, allowing them to be used freely and without permission of the original copyright owner. Shockingly, Dostoevsky’s Crime and Punishment, Stevenson’s Dr. Jekyll and Mr. Hyde, Kafka’s Metamorphosis, and Orwell’s 1984 all have lapsed copyrights and are available to be published and reprinted without compensation to the writers’ estates. Entry into the public domain explains why you can pick up the great classics by Jane Austen, Mark Twain, and Jonathan Swift for free on your Kindle.

There is one exception, called fair use, where your work can be reproduced without infringement or compensation. So long as your work is being used for educational and non-commercial purposes such as research, scholarship, news reporting, teaching, and criticism, that use is not considered copyright infringement.

There are several advantages to registering your work with the copyright office. But most of all, it’s really cool to have that Certificate of Registration hanging on your wall!

How is the work protected?

It is not necessary to register, or “deposit,” your work with the U.S. Copyright Office at the Library of Congress in order to benefit from the protection of the law. However, there are several advantages to doing so. First, the date of your creation will be proof positive that you are the first in time to write your particular story. Second, if someone else writes or copies the identical story, this filing will help with the statutory enforcement of your rights and remedies against the infringer. And third, it’s really cool to have that Copyright Certificate of Registration hanging on your wall!

It’s worth the $35 filing fee to stake your claim on your brilliant work of art, and it’s easy to do online. Be forewarned, there’s a backlog of filings, so you must be patient. It may take six to eighteen months to receive your certificate.

Now we’ve come full circle back to our little copyright bug. Besides filing your work with the copyright office, you must indicate to the world that you are aware of your rights in your work. This means the © symbol must appear on your work, preferably on your title page. Whether your work is published or unpublished, the correct method of implementing the symbol is: © Year, Author’s name (for example, “© 2020 Jodé Susan Millman”). If you place this notice on your work, the world will be informed that you have protected yourself, and the notice can be used as evidence against any infringer.

What are the remedies for infringement under the law?

If someone uses your work without compensating you, or without your permission, that act is in violation of your exclusive ownership rights under copyright law. You will be entitled to an injunction, actual damages, attorney’s fees, statutory damages, and loss of profits, plus the infringer’s profits. The infringer may also be subject to punishment for criminal infringement if they used your work for commercial gain.

The takeaway is that your precious literary masterpiece is protected from the moment of creation. Don’t be afraid to catch the bug—the © bug—because it will immunize you, your work, and your heirs from the literary pirates of the world.

Jodé Susan Millman is an attorney practicing in New York’s Hudson Valley. She is a member of the EASL Section of the NYS Bar Association and was a contributing editor to the Kaminstein Legislative History Project analyzing the Copyright Law of 1976. She is also the author of the theater guide, SEATS: NEW YORK, published by Applause Theatre and Cinema Books, and her debut thriller, The Midnight Call, won Best Police Procedural from and was shortlisted for the Clue Award.

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