Writer's Digest Questions and Quandaries - Copyrights

Can You Copyright a Title?

Tue, 13 Oct 2009 12:43:06 GMT

Q: I've been working on a book and the title is very important—I use it as the URL for my blog, for a weekly column I write, etc., and I want people to identify it with me. Can I copyright a title so others can't use it? –Anonymous

A: Copyrights cover works fixed in a tangible format, but because titles are typically short, they don't fall under copyright protection. So no, you can't copyright a title to a book, song or movie. But you can trademark a title, which may give you the protection you seek.

The U.S. Patent and Trademark Office states that a trademark protects words, phrases, symbols or designs identifying the source of the goods or services of one party and distinguishing them from those of others. Brand names like Pepsi, Xerox and Band-Aid are all protected. So is the Nike "swoosh." But more relevant to us, book titles such as The Da Vinci Code and Harry Potter and the Sorcerer's Stone are trademarked.

Unlike copyright protection, which is granted the minute your work is written down, trademarks aren't handed out so freely. In fact, if the U.S. Patent and Trademark Office doesn't consider your title (or brand) a distinctive mark that is indisputably distinguishable from others, you will not be granted trademark protection. This is why you see so many books with the same—or very similar—titles. Many of the terms are considered too generic or arbitrary to warrant protection.

Trademarks are not only intended to protect the creator, but also the consumer. Trademarks keep others from confusing a well-known work on the bookstore shelves with others. For example, Harry Potter is such a popular, distinguishable character by J.K. Rowling that you'd expect any title with his name in it to be written by her (or, at least, a book approved by her). It's not only her work, but it's become her brand.

So if you use the title of your book as the title of your blog, column, etc., it could be considered your brand identifier. And if you find success, you could qualify for trademark protection.

Brian A. Klems is the online community editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwmedia.com with “Q&Q” in the subject line.

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UPDATED: Can You Write the Sequel to Someone Else's Book?

Tue, 18 Aug 2009 13:01:24 GMT

NOTE TO READERS: AFTER WRITING THIS Q&Q I READ A COPYRIGHT LAW THAT DIDN'T JIVE WITH MY ANSWER, SO I CONTACTED AN ATTORNEY TO SET THINGS STRAIGHT. GLAD I DID, BECAUSE I WAS OFF. AFTER SOME DIGGING WE FOUND THAT THE GREAT GATSBY WILL ENTER THE PUBLIC DOMAIN IN 2020, NOT 2010 AS I ORIGINALLY STATED. I'VE UPDATED THE ANSWER BELOW.

Q: Do I need permission to write a sequel to a famous book (in my case, The Great Gatsby) or can I just write and sell it? —Becky B.

Q: For all books that fall under copyright protection, yes, you need to be granted permission by the copyright holder. The holder is typically the author, the author's family or the publisher of the book. Without attaining the rights, you can't sell/publish a sequel. Period.

(Wow, did I just pull out the single-word sentence for emphasis? I certainly did, so I must be serious!)

That's the bad news. The good news for all who want to write sequels to their favorite books is that thousands of old books have had their copyrights expire. It's why Gregory Maguire had no problem peeling away at The Wizard of Oz (public domain since 1956) to produce Wicked and Son of a Witch. And John Gardner didn't need permission from anyone to write his Beowulf interpretation, Grendel (public domain since, well, before any of us were born).

To know when a copyright expires, you need to understand the rules established by the U.S. Copyright Office (which are very confusing, so I’ll try to sum up). Last I checked, work created before January 1, 1978, has a copyright life of 95 years from publication or 120 years from the work’s creation—whichever comes first. If it were published in 1978 or after, and the author is named and registers with the copyright office (whether it’s his real name or a pseudonym), the copyright term for the work is the author’s life plus 70 years.

Now, onto your real conundrum: Is The Great Gatsby part of the public domain? Gatsby was penned by F. Scott Fitzgerald and published in 1925. Because it was published before that magical year of 1978, the copyright won’t expire until 95 years after it was published. And, if my math is correct (which it usually isn’t, so I double-checked with my friendly solar-powered calculator), The Great Gatsby will become part of the public domain in 2020. So you’ll have to hold off a few more years to sell your sequel.

Brian A. Klems is the online managing editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwmedia.com with “Q&Q” in the subject line.

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Join us for the Writer's Digest Conference (Sept 18-20) in New York City, which focuses on how to use the newest tools to get published and market/promote your work.
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How Do You Regain Copyrights to Pieces You've Sold?

Tue, 28 Jul 2009 13:28:30 GMT

Q: About 20 years ago, I sold a short story to a magazine. One line in my contract stated the payment was for “full rights” and another said, “On acceptance of this payment, the author transfers the copyright interest to … .” Does this mean I can’t sell the story ever again, even as a reprint? What if the magazine is no longer published?—P.A.‑Humphrey

A: Selling full rights to your work is like selling your car—once the contract is signed, you have no rights to the piece and can’t sell it again. Works created 20 years ago are protected for the life of the author plus 70 years, so the new owner has that copyright protection.

According to our legal expert Amy Cook, even if a magazine is defunct, someone, somewhere, still owns the copyright to your piece. If you want to sell that article again, you’ll need to get the rights back.

“Even if the company went out of business, copyrights are assets that can be bought and sold; they don’t just disappear,” Cook says. “However, if you can find out who currently controls the copyright, that person may be perfectly willing to transfer the rights back to you.”

Cook also notes that there’s a little-known loophole in the Copyright Act that says authors may terminate their copyright grants after 35 years (though it doesn’t apply to works-for-hire or copyrights transferred in wills). But this loophole still requires you to contact the existing copyright holder and inform her that you’re exercising the clause. It’s important to put it in writing. And if you’re doing this, I suggest consulting a lawyer first.

Your other option is to change the story to make it a new work. There’s no real formula when it comes to creating a new piece out of old material. It’s important to know that you can use the same idea, but the work can’t be “substantially similar” to the original piece. How similar is “substantially similar”? That’s up to the judge—if it ever comes to that.

Brian A. Klems is the online community editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Tuesday as I try to give you more insight into the writing life.

How Do I Copyright My Manuscript?

Tue, 10 Feb 2009 18:12:47 GMT

Q: I recently finished a novel and want to know what I can do to have it copyrighted. Is there a special process? –Sylvia R.

A: Whenever you put something in a tangible format—written on paper, typed on computer, chiseled on stone tablets—it's copyrighted and protected under U.S. copyright law. No tricks. No magic. It's as simple as that.

Of course, if someone steals your work and presents it as his own, the burden of proof falls on you to show that you created it first (and own the copyright). This, as you can image, can be tricky. To give yourself better protection you can also officially register your work with the United States Copyright Office. The downside is it'll cost you roughly $35-45 per manuscript. The upside is that if anyone steals your work, you'll not only have proof of copyright ownership, but also be able to sue for more money and damages.

Now I'm not suggesting you officially register every story you've ever written, as that can get costly—that decision is up to you. But it's certainly worth considering for any manuscript of great length and value to you.

Brian A. Klems is the online managing editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Tuesday as I try to give you more insight into the writing life.

Can You Copyright an Idea?

Tue, 02 Dec 2008 19:02:44 GMT

Q: I have a fantastic idea for a book and I want to protect my idea from someone else copying it. What steps should a person take in order to protect an idea until it comes into print? –Brian

A: I hate to break the bad news, but you can't copyright an idea. Nobody can. Section 102(b) of the Copyright Act specifically states: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work."

So if copyright law doesn't protect an idea, what exactly does it protect? Copyrights cover "original works of authorship" that the author fixes in a tangible form (written on paper, typed on computer, scribbled by crayon on a napkin, etc.). In other words, it protects the specifics of your book after it's written. No one can steal, reprint or profit from your work without your consent. Though, no matter how hard you try, you can't safeguard the idea behind your story.

Think about it like this: No one directly copied William Shakespeare's Romeo and Juliet word-for-word and slapped their name on it, but they have used his idea—a love story about two young people from rival families— over and over again. West Side Story fits the bill (two lovers from rival gangs). Even Disney's High School Musical has the same plot (rival high school cliques).

Now before all you overachievers point out that Shakespeare's work has out-lived its copyright protection and is now part of the public domain, remember this: both West Side Story and High School Musical are copyrighted, so no one can steal significant details from them. But, much like your idea, they can't stop others from using the basic concept.

Brian A. Klems is the online managing editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Tuesday as I try to give you more insight into the writing life.

Can You Use a Someone Else's Character in Your Book?

Tue, 12 Aug 2008 18:15:25 GMT

Q: Can I use a minor yet intriguing character from a famous work as the protagonist of my novel? I know it’s been done with novels like Wide Sargasso Sea, using Mrs. Rochester from Jane Eyre, but would a secondary character from a novel published before 1950 (yet still in print) also be allowed?—Anonymous

A: Characters are protected by copyright as long as they’re original and well-defined—the traits that probably make them desirable to use in your own work.

“If a character has a distinctive name and well-defined personality—whether it’s Harry Potter or his sidekicks Hermione Granger or Ron Weasley—they belong to the copyright holder, and you can’t use them without permission,” says our legal expert Amy Cook. “Character names can even become well-known enough to warrant trademark protection.”

Now, just because you can’t use someone else’s work doesn’t mean you can’t be inspired by it. And if the character has a rather common name and isn’t particularly fleshed out, she’s up for grabs (e.g., a perky young college student named Jennifer who used to baby-sit the main character and doesn’t play much of a role in the book).

One other avenue that authors are taking is “fan fiction.” Fan fiction writers take characters and settings from other works and build their own stories around them and, generally, share them online for free. Technically, it’s still copyright infringement. But some authors don’t mind this and, in fact, are flattered—especially if it’s not for profit. Some other creators, however, like horror author Anne Rice, simply won’t stand for their characters and fantasy worlds to be used by others. It’s going to depend on the litigiousness of the creator.

FUN NOTE: Bestselling authors Steve Berry, James Rollins and Brad Thor have been known to write each other's characters into their stories (then again, they are all friends). They talk about it here in this video.

Brian A. Klems is the online managing editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Tuesday as I try to give you more insight into the writing life.

What's Considered Fair Use and What Isn't?

Tue, 01 Jul 2008 15:33:10 GMT

Q: Is it necessary to ask permission to reprint an article if the reprint is used in a strictly academic setting?—Anonymous

A: Title 17, Chapter 1, Section 107 of the U.S. code states that “the fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, is not an infringement of copyright.” But not all material is protected for your free use. There are provisions, and our legal expert Amy Cook says the writer must weigh some factors before considering the work fair game.

“If an article on a hot issue was published, and you distribute it to a large class without permission—ostensibly to examine the writing style—those students wouldn’t go buy the magazine,” Cook says, and the magazine would lose sales. “You can’t destroy the market value for the original.”

Courts also take into account whether the original work is more factual (which more readily falls into a fair use) or if it’s more creative (less likely to be a fair use). The amount and substantiality of the portion used in relation to the copyrighted work can come into question, too; so taking an entire article is risky.

“The bottom line is that writers or users should take only the smallest amount they need to comment on it,” she says. “The mere fact that it’s an academic use doesn’t automatically protect you. If in doubt, simply get permission.”

Brian A. Klems is the online managing editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Tuesday as I try to give you more insight into the writing life.

What Are First Serial Rights (or FNASR)?

Tue, 24 Jun 2008 19:20:28 GMT

Q: When working out a contract with a magazine, what are first serial rights?—Anonymous

A: When you sell first serial rights to a newspaper, magazine or periodical for a piece of work you’ve written, that media outlet has the right to be the first place to publish the article/story/ poem. After the piece runs, you’re free to resell it to another medium or to package a collection of your work into a book.

Rights can be sold geographic-ally, as well. It’s not uncommon to see article submissions with “offering first North American serial rights (FNASR)” written in the top, right corner of the first page. This limits the buyer’s rights and gives you the opportunity to sell the article in other locations outside the U.S. and Canada—such as England, Russia or Madagascar.

Reprints of your work that previously appeared in another publication are considered second serial rights. These rights are nonexclusive, meaning the author can sell the piece to many publications at the same time.

In the online world, you can sell the electronic rights to your piece. These rights aren’t as clear.
While they cover most of the same rules as first serial rights, the ever-evolving technology can cause some discrepancies between yourself and the publisher—like whether it can archive your work, place it in a database and let young punks download it to their PCs. This process is the least defined, and you may want to specify each right you license to the buyer.

Other rights to consider are simultaneous rights (giving you the ability to sell work to publications that don’t have overlapping circulations) and all rights (which means you sell all the rights to your work to the buyer, and you never get another dime for the piece, no matter how many times they publish it).

And remember, it never hurts to have someone familiar with freelancer contracts glance over your contract before you sign.

Brian A. Klems is the online managing editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Tuesday as I try to give you more insight into the writing life.

Can You Copyright a Pseudonym?

Tue, 20 May 2008 14:59:25 GMT

Q: Do I need to get a copyright for a pseudonym, or will a copyright for the book under my chosen pen name be sufficient?—Al de Araujo

A: The name H.G. Wells isn’t copyrighted. Neither is Michael Crichton. Why? Under U.S. law you can’t copyright a name, real or fictitious. Copyrights protect authorship, such as short stories, poems or novels.

You can register a manuscript under a pen name at the copyright office ( www.copyright.gov ). You’ll have to provide some information, including your real address. But if you really want to keep your true identity under wraps, set up a post office box and have information from the office sent there.

It’s important to get your pen name on record so the Copyright Office can acknowledge the proper life span of the copyright. Work created by authors not identified by the Copyright Office have a copyright life of only 95 years from publication or 120 years from the work’s creation—whichever comes first. If a writer identifies herself to the copyright office and registers her pen name, the copyright term for the work is the author’s life plus 70 years. Which means if I get hit by a bus tomorrow my work is still protected until 2078.

It’s also important to check with the office first and do online searches to avoid using names of real people or names that have already been taken by other authors. While you can’t copyright a name, you can get sued for identity theft. Also, publishers can get pretty angry if you try to pass yourself off as someone famous like J.K. Rowling or Dean Koontz. Stick with something unique.

Brian A. Klems is the online managing editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Tuesday as I try to give you more insight into the writing life.

Can I Use Song Lyrics in my Manuscript?

Tue, 13 May 2008 17:01:33 GMT

Q: What are the legal ramifications of reproducing song lyrics in a manuscript? If permission from each copyright holder is necessary, what’s the best way to secure these permissions? Also, can I use a song title as the title of my book?—June Youngblood

A: Song lyrics are copyrighted, which means you need permission to use them. According to our legal expert Amy Cook, there isn’t any specific law about how much you can take under fair use, but it’s common for the music industry to say you need permission for even one line of a song.

“The music industry is pretty vigilant about song lyrics,” Cook says. “This is especially true if you’re using the lyrics in a novel to progress the story or add atmosphere. If you’re a music critic reviewing a CD, you have more leeway under fair use.”

One way you can check to see if the song is still under copyright protection is to visit www.copyright.gov. This online site lists all copyright records dating back to 1978. For anything before that, you’ll need to contact the U.S. Copyright Office and may have to pay to have the records checked for you.

Another way to find the owner of the copyrights is to contact the American Society of Composers, Authors and Publishers (ASCAP) or Broadcast Music, Inc. (BMI). These two major music performance rights organizations don’t grant permission, but they can help you find the publisher of the song you’re looking to use.

Once you find the rights owner, you must ask for his permission. He could offer you the rights for free, completely deny you the rights or ask you to rename your dog after him. The price is completely up to the music publisher.

“As a practical matter, you don’t need to worry about getting permissions until your work is going to be published,” Cook says. “And your publisher may help you in securing permissions. Most publishers provide their authors with their permission guidelines and forms.”

As for song titles, however, titles of any kind (book, song) aren’t copyrightable. But they occasionally can be subject to trademark or unfair competition laws.

“If you used a really famous song title or part of a song as a title —say, ‘Yellow Submarine’— that’s so closely tied to a specific group (or artists), then you’d probably get a letter from their lawyers,” Cook says.

Using Famous Names and Proper Nouns in Fiction

Fri, 15 Jun 2007 12:42:36 GMT

Q: In a work of fiction, what restrictions exist on using the names of professional sports teams, TV networks or real people (e.g., the Los Angeles Dodgers, FOX Network or Rupert Murdoch)?—Jeff Stanger

A: If your character is a Dodgers fan or loves watching FOX news or happens to walk past Rupert Murdoch on the street and notices that he’s taller than he looks on television, you generally won’t have Alan Dershowitz calling for your head. You can use these well-known proper names in your text as long as you don’t intentionally try to harm that person’s or product’s reputation.

Normally you won’t catch much grief for writing neutral or positive words about real people, places and things. It’s the negative press you provide that could be considered trade libel or commercial disparagement—both ugly phrases that could cost you plenty of cash in a court of law.

Brian A. Klems is the online managing editor of Writer’s Digest magazine.

Have a question for me? Feel free to post it in the comments section below or e-mail me at WritersDig@fwpubs.com with “Q&Q” in the subject line. Come back each Friday as I try to give you more insight into the writing life.