You've Finished the Next Great American Novel... Now What?

So far I’ve covered a heck of a lot about copyright—the history of it, the extensions and the infringements, the fair use and the public domain. But how does this all apply to you, dear reader, in real life? (With “you” here being all my fellow authors reading my blog.)

As a writer, you are, of course, completely immersed in the world you’re creating on the page. You’re thinking about plot points and well-crafted paragraphs. Your words sing on the page and your brain tingles. This is the life! You’re writing, creating! What could be better? In these moments, the furthest thing from your creative mind is your business mind—that part of your brain that reminds you to pay bills on time and warns you not to eat a second piece of cake. But once the ink has dried on the page (or the cursor has blinked after the last word), what comes next?

Even though writers tend to be highly creative and often artistic people, successful writers must learn to be rational, savvy businesspeople too. The whole purpose of copyright is so writers can make money from their creations, and if you’re still reading this blog, I assume you’re no different. Sure, there’s an immeasurable glory that comes with setting your words on a page knowing that they’re out there for all to see. Maybe you don’t care about the associated financial opportunities. Fine. But after all the sweat and love you poured into your manuscript, you should at least care enough about it to protect it. Wouldn’t it suck to suddenly see one of the stories from your short story collection published in a magazine that never paid you a dime for using your work? So it’s important to know how to protect yourself and your work.

To protect yourself, you should make sure to copyright your work. Your work is automatically considered copyrighted once it’s on the page or screen (in other words, in a physical format), so let the world know it. It’s as simple as putting your name, the year of completion (for unpublished works), and the word “copyright” or the symbol © (a “c” in a circle) somewhere on the work.

You should consider adding “All rights reserved” to your unpublished work’s copyright notice to indicate that you still own the complete bundle of rights that you’re entitled to as a copyright owner. These rights are:
• Reproduction of the work (making copies)
• Creation of derivative works based on the original (such as a screenplay version of a novel)
• Distribution of copies to the public (publishing and selling your book)
• Public performance of the work (such as a reading)
• Public display of the work (seems to apply more to visual art)
• Public performance of the work via digital audio transmission (a fancy term for sound recordings)

Don’t shove this list too far into the back of your mind, as we’ll be referring to this bundle of rights again in the near future.

Remember also that your copyright isn’t international—it’s only valid in the U.S., though many countries will offer some protection from infringement thanks to all those international copyright conventions and treaties (remember good old Berne?).

Although registering your copyright with the Copyright Office is no longer required in the United States, it’s still a wise thing to do. As I discussed in earlier entries, unregistered copyrights don’t get the same level of protection if infringement occurs as do registered copyrights. With the rise of information technologies that facilitate the duplication and sharing of information, it’s wise to be protected.

How do you register your copyright? All the information for registering your copyright can be found here. The site includes information on the forms you need to fill out, how to pay the fee, and how to submit the copy or copies of your work that are part of the application. As of today, it’ll cost you $45, but it’s money well spent. DON’T assume that mailing a copy of the manuscript for yourself and leaving it in an unopened envelope, known as poor man’s copyright, will hold up if you ever have an infringement problem. You’ll be a far poorer man if you never registered your copyright and can’t recoup legal fees in an infringement case. So DO be sure to register it with the Copyright Office.

The Copyright Office receives over 600,000 copyright applications a year, so don’t expect them to contact you unless there is a problem or they need more information. You won’t get any sort of confirmation that they’ve received your application, but once it’s been accepted and processed, they will send you a registration certificate.

What if you want to register your copyright under a pen name? Lots of people do so to protect their identities. Perhaps you’re a mathematician who wants to start writing sci-fi. Or you’re well-known as a mystery writer but you want to try your hand at romance. You can go about it in a couple of different ways. You can either register using your real name on the form as the author and then indicating your pseudonym, or you can register only under your pen name. (More detailed instructions are available on Form TX, which is the copyright registration form that’s available on the Copyright Office website linked above.) If you take this latter route, be aware that you may encounter problems concerning proof of ownership, so you should consult an attorney for advice before taking this route.

If you are published and work with an agent, you shouldn’t run into problems concerning payment, since the agent receives your royalty checks from the publisher and then issues you your money minus their commission. But if you work directly with a publisher, you can either reveal your identity but ask that they keep it secret or you can keep your identity a secret and make arrangements with your bank regarding checks made out to your pen name. We’ll talk more about agents and royalties soon, but since we were on the subject of copyright registration, I thought I’d throw this information in there.

Next time we’ll explore the publishing contract. Pages and pages of legalese? What’s a writer to do? I’ll try to help decipher what typically goes into a publishing contract and what it all means.

Accio Case Studies

As my studies turn more towards how copyright and contracts affect authors, I'll also be looking at cases in the world of publishing embroiled in legal issues. One of the biggest and most interesting that I can think of is Harry Potter. With the seventh book conveniently being released this Saturday and each installment of the series cloaked in security to prevent information leaks, the news is currently filled with reports of leaks being shared online. What happens to the people who leak information? What sorts of security systems are in place? Who is J.K. Rowling suing? What's the big deal? Love Harry or hate him, you have to admit that this book series is one of the biggest phenomena in publishing and so there's lots of juicy stuff surrounding the series that makes perfect fodder for my studies.

I also wanted to know if there are any legal cases in publishing that you'd be interested in reading more about that I could research in addition to the Boy Wizard. If so, let me know. Suggestions are most welcome; just leave me a comment.

Proponents and Opponents to the CTEA, and Changes to CopyRighteous

As with any worthwhile cause/fight, the CTEA has those who support it and those who oppose it. And when it comes to public domain, people who are somehow invested in intellectual property get pretty passionate.

Supporters of the CTEA were, unsurprisingly, copyright holders, especially entertainment corporations like Disney and artist estates. (Some people even called the CTEA the "Mickey Mouse Act" because Disney wanted to prevent old Mickey Mouse cartoons from becoming public domain works.) Opponents to the CTEA included libraries, scholars, researchers, and educators.

In the previous entry, I went over some of the reasons why Congress passed the CTEA. These were all reasons the proponents of the CTEA agreed with. If their creations (or their parents' or grandparents' creations or their corporations creations) were permitted to go into the public domain, the proponents would no longer benefit financially from them. Some proponents also argued that if these works were allowed to go into the public domain that they'd be converted from their original purpose into something perverse or unrecognizable. So in addition to the benefits of exploitation, the proponents wanted to maintain creative control over these copyrighted works.

Opponents argued that the continual lengthening of copyright terms meant that there was no limit to the time frame Congress could grant to copyright holders and their estates. The longer these terms became, opponents argued, the closer the U.S. slipped to perpetual copyright--something that would eliminate the addition of new works to the public domain entirely. Opponents also argued that the majority of copyrighted works were only profitable the first few years after they were created, and then either went out of print or otherwise became unprofitable. By extending the terms of copyright, these works were being kept out of the public domain--where they could potentially be discovered by others--for a longer period of time. Due to this limited period of profitability for most copyrighted works, opponents argued, there was little economic incentive for most people to have such a long copyright term. It only really made sense for corporations and franchises and for those wildly successful artistic works that are few and far between.

But the public domain doesn't encourage the creation of new works, argued CTEA proponents. The incentive to create new works lay in the fact that copyright protected the author's work (and paid off for the author's descendants) in the event that the work did become financially successful.

Opponents countered by saying that the public domain needed to be constantly replenished in order for artistic creation to continually flourish. Artists needed to be able to draw on previous works without fear of infringement. Besides, said opponents to CTEA, preventing works from going into the public domain is harmful because it prevents access to the many intellectual property works that are not famous or commercially exploited and that are not available for the public to access and use due to the extended copyright. Sometimes the copyright holders of these works die without an estate, or forget they even own a copyright, or just disappear. And many of these people's works become what is known as orphan works--works that are no longer in print or easily accessible to the public but that, due to copyright terms and extensions, aren't due to be in the public domain for who knows how long because no one knows if the holder is alive or dead. Orphan books are a fascinating chapter of copyright that I do hope I can explore more deeply in the future.

Another reason CTEA opponents clamored against it is that evolving technologies like the Internet and other forms of digital media mean that there are many more avenues for people to access intellectual property. Having a bigger public domain means that more material would be available to more people. But proponents of CTEA want to exploit these new media as new revenue streams.

Constitutional scholar Lawrence Lessig and electronic publisher Eric Eldred took the case that copyright extension was unconstitutional to the Supreme Court in Eldred v. Ashcroft. You can read more about the case here and an article by Lawrence Lessig here that explain more about it. Also good to read is the following article debunking the "myth" of public domain. (Be forwarned: it's long. Really long. And it has many footnotes. I wish I could share my humorous comments that I made on it throughout, but I have no idea how I'd upload a PDF on here.)

I honestly have much more to say about public domain and my thoughts on it. I believe that the public domain is a good thing, and I believe that having access to works such as orphan works is vitally important. I believe that evolving technologies are making the sharing of information so easy that to deprive people of works they should be able to access but can't is a detriment to society. But I also believe that the creators of intellectual property should have a right to benefit from their creations, and to allow their next of kin to benefit from them as well. So I hope that copyright terms are not extended again, because with people's longer life spans, that means that it will take even longer for works to reach the public domain. I am also glad for things like Creative Commons, which allows people to choose how much copyright they want to keep and to what degree they want to protect their work.

Clearly, there's much more to say, and I do hope to carry on this discussion about Creative Commons, orphan books, and online publishing and cataloging projects like Google Books. But I've actually decided to take this project in a different direction for the duration of the semester, and I hope you'll all join me for the ride.

For the remainder of my project, I've chosen to focus on how copyright affects authors. It's all fine and good to talk about all of this stuff theoretically (which I've been doing for the most part until now), but now I'd like to apply it in a very real context that is relevant to my career choice of publishing and that also applies to many of my readers and colleagues, who are authors or involved with authors themselves. I'll be examining some cases in publishing involving writers' rights issues and I'll be looking at copyright issues in the context of author contracts. I'll also take a look at subsidiary rights. Basically it'll be a look at the legal process that goes into making a book and the ecconomics of copyright. So my hope is that this will serve as a sort of go-to guide for people who want to know more about their rights as writers.

Once the project ends and I've completed this leg of it, I'll probably continue to read and post about some of the other issues I mentioned above, because they really do interest me, so I hope you'll all stay tuned...

So Why Extend Copyright Terms Anyway?

I’ve been absent from the blogosphere for the past week because I was on vacation, attending to birthdays and parties and weddings (oh my!), but during that whole time I found myself thinking and reading about public domain. Really! This week I’m playing catch up and will be posting entries more frequently.

Ah, public domain. There’s so much to say—so much so that I feel like I don’t even know where to begin. I know I outlined what it is in my previous entry and I touched upon the Copyright Term Extension Act (from here on out referred to as CTEA). But boy oh boy did that Sonny Bono ever open up a can of worms.

The CTEA is called the Sonny Bono Act because Congressman Bono was a big proponent and sponsor of extending the terms of copyright. In fact, his wife and congressional successor, Mary Bono, is cited as saying that Sonny wanted copyright terms to last “forever”—terms that would violate the Constitution, which only allows copyrights to exist for a limited amount of time. The CTEA extended the terms of copyright to life of the author plus 70 years (so they added 20 years to the already existing 50-year term) and they also retroactively applied copyright to things that would have gone into the public domain. Of course this pissed off a lot of people. Even though the Constitution gave Congress the power to extend the terms of copyright (as long as the duration of the term was “limited”), there were many people who were against this, for a variety of reasons. And of course there were many people who were strongly for the lengthening of these terms—mainly copyright holders, media conglomerates, and the descendants of successful creators. But before we look at these folks and their points of view, let’s examine why Congress extended copyright terms in the first place.

The United States wanted to match the European Union’s copyright terms. This wasn’t just a case of competition. American authors wouldn’t be protected by the European copyright terms of life plus 70 unless the American copyright terms matched. Plus, the United States has become a major exporter of copyrighted material, so Congress figured the United States should lead rather than follow when it came to copyright terms. It would also allow for more timely collection of payments owed to the United States for its exported copyrighted materials.

The United States also wanted to encourage further investments in existing copyrighted works. How does one further invest in an already existing work? Converting things into new formats. Think of all the movies that existed before the advent of the DVD player. A lot of those movies that were previously only available on VHS are now also available on DVD (and other forms of media that I probably don’t even know exist because I’m a technological troglodyte). That’s a further investment. Thus Congress was embracing the fact that the advent of new technologies meant new opportunities for the exploitation of existing copyrighted materials.

Congress also wanted to be sure that the descendants of creators got their fair share of profits from a copyrighted work. Since people now have longer life expectancies, Congress said, it only made sense to extend the terms of copyright so that the children and grandchildren of authors and artists could continue to earn revenues.

Congress also believed that extending the terms of copyright would encourage the creation of new works. The reasoning for this one hinges on the previous point of providing for one’s descendants. Artistic creators testified before Congress saying that knowing that the profits from their works would be available for a longer period of time to their next of kin would give them added incentive to create further artistic works. Knowing that a creator could benefit from his or her creation for a longer period of time would encourage more people to be creators, Congress reasoned, and thus the arts and sciences would progress. The extended term of copyright protection would thus encourage the creation of more works than would otherwise be created, and this would thus lead to an increased number of works that would eventually land in the public domain when the copyrights expired.

Since the Constitution never specifies the maximum duration of copyright term, simply that the term must be “limited” (that is, finite), in theory Congress could continually extend the length of copyright duration so that works take centuries to reach the public domain. And herein lies the problem that has raised a rallying cry from opponents—something we’ll cover next time when we examine the pros and cons of the CTEA and how it affects the public domain.


USEFUL LINKS
A site all about copyright extension: http://www.copyrightextension.com/
The Senate Report 104-315 CTEA (if you really want to read the whole thing…): http://thomas.loc.gov/cgi-bin/cpquery/R?cp104:FLD010:@1(sr315)