What keeps someone from publishing your book and claiming your writing as their own? You may be surprised by the answer, but it is the United States Government. America was founded by scholars, and they put protections for intellectual property into Article 1 of the United States Constitution.
Normally, when we talk about legal matters on this show, they don’t apply to our international listeners. But copyright is special. Thanks to the Berne Convention, most nations recognize each other’s copyrights, and thanks to WIPO Copyright Treaty, copyright law is similar from one country to another.
Nevertheless, there is a lot of misunderstanding in the author community when it comes to copyright. These misunderstandings can get you into a lot of trouble and even ruin your career if you are not careful.
So, how do you get copyright law to work for you rather than against you?
We are joined today by the perfect guest to talk about this. James Scott Bell is a bestselling indie and traditionally published author who also happens to be a lawyer.
Disclaimer: While James Scott Bell is a lawyer, he is not your lawyer. This article is meant for general legal education and is not a replacement for talking to an attorney about your specific situation. This isn’t even a sales pitch for clients. Jim is too busy writing bestselling books to take on legal clients.
What is a copyright?
Thomas Umstattd, Jr.: What is a copyright?
James Scott Bell (Jim): Copyright literally is the right to make copies. A content creator creates intellectual property such as books, songs, photographs, and the like. Copyright is the content creator’s exclusive right to make and distribute copies of the work according to their own preferences.
It also protects you from having your work stolen and sold. As you mentioned, it was so important to the founders that they put protections in the constitution because they believed that the written word was the primary way to foster intellectual discussion and debate ideas. They wanted to protect that right so writers could publish safely.
We are the beneficiaries of their foresight. They created the Federal Copyright Office, and copyright is now copyright a matter of federal jurisdiction. That’s the protection we have.
Thomas: In the grand scheme of things, copyright law is a new concept. In ye olden days, when a Roman poet or historian wrote a history, they did not make money selling copies of that history. A scribe would have to spend months writing a copy by hand, and that process was expensive. There was no money in it for the author.
Authors got paid for performing their books. Heraclitus would perform his histories for live audiences, and that’s what he was paid for.
Jim: In those days, copyright enforcement was usually done with a Roman sword. So that was how they took care of business back then.
How important is it to register your copyright?
Thomas: An author doesn’t have to file a copyright to have a copyright. But how important is it for an author to file their copyright with the United States Copyright Office?
Jim: You actually register the copyright. You don’t have to apply or file for it. You own the copyright. The copyright office allows you to register the copyright that you own to give you certain advantages.
For example, when you register your copyright, it creates a certain date for the creation of the content.
If you register within three months, you’re entitled to statutory damages, which is a set number of damages that you don’t have to prove. If you should have a case of copyright infringement that you want to pursue, there’s a level of protection for you where you don’t have to prove that certain damages happened.
Thomas: It’s a huge protection because most copyright cases never go to a jury. They almost always settle out of court. When you can receive statutory damages, you can also get attorney’s fees. That means, if someone wants to fight it out with you in court, they could lose their shirts.
You’d get $150,000 of statutory damages on top of whatever you win in the court case plus attorney’s fees. If you’re not wealthy, the idea of hiring an attorney may sound too expensive. If you’ve registered your copyright and you can get your attorney’s fees compensated, some attorneys might be willing to take up your case in hopes of winning just to get those attorney’s fees refunded.
Suddenly, you’re in a much stronger position for negotiating a settlement. They may have blown you off without that protection, but now they’re paying you a lot of money to settle out of court.
Jim: The downside of that is that you have to go through federal litigation. It’s a federal case. Nobody likes federal litigation. It’s high stress. It is to be avoided, if at all possible, but you do have that added protection when you register within that time period.
Thomas: There’s a second court system that handles indie authors, and that’s the Amazon court system. Instead of having judges and attorneys, cases are handled through customer support representatives from another country who may or may not understand what you’re saying.
In my experience, having a registered copyright helps you in Amazon court. If you’re in dispute with another author and you can share your registration information, that often ends the discussion because you have hard evidence. If the other side does not, Amazon will side with the person who’s got the paperwork.
Jim: Even if you don’t have the registration of copyright, you have the Amazon date stamp. They know when you published your book, and they don’t require you to show any official registration. They have their own form you can submit.
I’ve never had to deal with that, but I know authors who have. The Amazon date stamp usually takes care of the problem, and that’s what you want. Being compensated for damages would be nice, but what you really want is for the illicit book to be removed from Amazon. An illicit copy is like a death sentence for the book.
Thomas: The whole idea of protection is that if you have enough protection, you never need to use it.
There’s an old Texas joke about an old lady speeding down a Texas highway. The county sheriff pulls her over, and she says, “Officer, I need to tell you I have a concealed carry permit. I have a nine-millimeter pistol in my glove box. I’ve got a 40-millimeter pistol in my pocket, and I’ve got a shotgun on the rack of my truck.”
And the sheriff says, “Ma’am, what are you afraid?”
And she says, “Not a darn thing.”
Perhaps a more politically correct metaphor would be that in a row of locked bikes, the one with two locks is the least likely to be stolen. It’s too much work. There are easier targets.
The extra protection often means that you won’t need to use it. The fact that you’ve registered the copyright indicates that you’re savvy and shouldn’t be messed with.
It’s only $65 to register your copyright. If you don’t do it, you’re signaling to the legal predators and trolls that you are potential prey. If you can’t afford the $65 registration fee, you probably can’t afford an attorney, which means they can push you around with scary letters.
Jim: While there are benefits to registering within the first three months, you can register a copyright at any time. If you intend to go forward with litigation, you can do that at any time. You just don’t get that added statutory damage protection we talked about. But if you didn’t register within that window, you’re not precluded from a copyright infringement case.
You still have the protection of the law. You can still go to court. You can still win, but you won’t win as much, and you may not get your attorney’s fees compensated. So don’t panic if you haven’t registered any of your copyrights. You can still do it.
How do I register my copyright?
Thomas: What does the copyright registration process look like?
Jim: Go to the federal copyright office website and follow their online form. It’s not complicated.
Authors used to make a physical copy of the book and send it to themselves via registered mail, so they had that official date on there. They’d keep it unopened so if there was a case, they could bring that into court as evidence of the registration.
But now, you can do it online through the copyright office.
Thomas: Registering the copyright is important, but it’s not required. The copyright notice isn’t required either, but it’s also a good idea. Normally you find the copyright notice in the book’s frontmatter.
What should an author write on that copyright notice page?
Jim: The copyright notice is usually fairly standard. Many indie writers use Vellum to format their books. Vellum includes a standard copyright notice, which usually says something like, “No part of this book may be reproduced without the permission of the author except in brief quotations or a review or a blog…” etcetera. Usually, it also says, “All rights reserved.”
Do I need to say, “All rights reserved?”
Thomas: Is it a good idea to reserve all rights? As a marketer, I don’t think it’s a good idea to reserve all those rights. If you don’t reserve all rights, you can encourage more quotation and adaptation, which can get the book in front of more people and ultimately lead to more sales.
Jim: Most people understand that if they’re going to review a book or talk about it, they can use brief excerpts. I’m not sure it’s necessary to put in that proviso.
I have noticed that some big publishers like Hachette have started using an educational copyright notice. For example, I found this in a Hachette book:
Hachette Book Group supports the right to free expression and the value of copyright. The purpose of copyright is to encourage writers and artists to produce creative works that enrich our culture. The scanning, uploading, and distribution of this book without permission is a theft of the author’s intellectual property. If you would like permission to use material from the book (other than for review purposes), please contact firstname.lastname@example.org. Thank you for your support of the author’s rights.
The value and purpose of copyright is to encourage writers and artists to produce the creative works that enrich our culture. Hachette has given an educational disclaimer, and they make it very easy to ask for permission.
That’s a creative and somewhat modern way of helping people understand why we have copyright. Education is really important.
Thomas: Suing your superfans for copying your work does not endear them to you. Just ask Metallica. The music industry, big record labels, and popular musicians have lost a lot of credibility with listeners because of how mean they are when people quote their work. It is not a good way to build a connection with your audience.
At the same time, you do want to protect your intellectual property. You don’t want people reading your book for free or listening to your song for free. Education is a solid strategy.
There is a time to go after pirates, but typically, your fans quote you because they love you.
Let’s say one of your fans makes a derivative work. You have all rights reserved, which means you own the right to make derivative works of your book, but a fan draws one of your characters or scenes and publishes it on their website.
Technically, that is a copyright violation. But you should encourage it! Don’t discourage it. If you yell at your fan, “How dare you draw my protagonist. He had blue eyes, not green eyes!” That superfan now hates you, and so do all their friends that could have been your fans.
Jim: That whole fan fiction world is still a little mysterious, but it has resulted in companies becoming sticklers on this.
Thomas: Star Wars and Star Trek have fans making films. People want to have a lightsaber battle and film it. That’s good for the Star Wars brand, but it could also be bad if fans present it as an official Star Wars story.
The most famous Star Wars fan show is like the show Cops, but instead of cops, stormtroopers deal with aliens committing criminal acts. It’s a funny fan-made show.
Star Trek has a rule that you can’t sell your video, and you can’t raise more than $200,000 for the production costs. They also require you to use officially licensed merchandise in the shoots. If you have a Star Trek uniform, it can’t be homemade. It must be a licensed uniform. They still make money off of the uniforms that way, but they’re encouraging and allowing it.
In general, fan fiction is good for your intellectual property. The fan must clearly present their work as fan fiction written by a superfan fiddling with the story and not as the original author’s work.
Does writing about a person who harmed me make me liable?
Thomas: A lot of authors are writing a memoir or autobiography. Sometimes they’re writing about being molested, assaulted, or harmed, and they want to name the perpetrator. Those authors often ask if naming that person will open them up for liability.
That fear protects predators who often continue preying on people because victims are afraid to speak out.
Jim: That is a risk. However, the truth is a defense against defamation, especially if you have evidence that supports the claim.
Thomas: There was a famous case involving a radio personality who was a doctor. He was prescribing such awful remedies that I can’t even mention them on this podcast. At his direction, people were taking these remedies, and they were dying.
This was in the early days of radio when radio was a brand-new technology. The American Medical Association was basically formed to fight this doctor’s quackery. He finally moved his radio transmitter to Mexico and cranked up the wattage.
It’s a fascinating story, but what finally stopped him was that somebody had the courage to call him out by name and write a newspaper article about it. The quack radio doctor sued the victim for defamation.
The victim’s defense was, “Everything I said was true,” and the victim won the case.
If you’re telling the truth, it’s not defamation.
Jim: If I say a person is a bully or claim somebody has committed a criminal act against me, and they did, then I’m safe. If the statute of limitations is up, you can’t go after them criminally. But if they sue you in civil court for the truth you told, you will get to have your day in court before a judge, and you may win.
Have the courage to name names, and write the autobiography. Don’t let fear keep you from speaking the truth.
Jim: There’s also a distinction between a statement of fact and an opinion. If you say, “I believe this person is a bully,” that’s an opinion. But if you say, “This person attacked me on this date,” that’s a statement of fact.
The law is intended to protect these expressions of fact. The protection is there so that people don’t just lie about you. So that’s where this push and pull of defamation law comes in.
Thomas: It seems like in the past hundred years or so, courts have not been willing to give wins to people looking for defamation cases. The courts have been leaning in on freedom of speech and freedom of expression to the expense of people’s reputations.
It’s hard to win a defamation case.
Jim: There were some famous defamation wins in the fifties and sixties during the McCarthy era, like Louis Nizer and John Henry Faulk. But you’re right. In America, we give protection to people doing the writing.
There’s a distinction between a private citizen and a person who is a public figure. It’s much more difficult to win if you’re a public figure. I think over in the UK, it’s a little easier. There have been some defamation cases that have been won in the UK. They’re more favorable in that regard.
In America, when you write about a private person, as we were talking about, there are certain things to watch out for. People have a right to have a private life and not have things exposed that would embarrass them. That’s a right to privacy. Now, whether that person needs to be exposed is one thing. But if you’re writing a memoir and talking about family members, there might be some liability there.
In what instance would someone have a reasonable expectation of privacy?
Thomas: Let’s explore that. Someone was about ready to write their memoir, but now they’re afraid again. So, in what instance would somebody have a reasonable expectation of privacy?
Jim: It’s generally something so unfavorable that a reasonable person would look at the accusation and conclude it would harm the accused. It’s a hard standard to meet when you’re suing someone because, again, the truth is a defense.
If you’re what you’re writing is true, and you can back it up, you shouldn’t be afraid of saying anything.
The risk comes when it appears that you’re ruining the reputation of an innocent party.
There is something called media liability insurance for these instances. If you’re going to write these kinds of books, look into media liability insurance because that’s the ultimate protection if you should ever be sued.
Thomas: In most cases, you don’t need media liability insurance, but if you’re saying, “Josh punched me in the second grade,” in your autobiography, then it could be a good investment
Jim: If you’re writing a Kitty Kelly kind of tell-all biography, then media liability insurance would be something to look into. But for the fiction author, there’s no need for it.
Thomas: I agree. You probably don’t need it, but the insurance salesperson will try to sell it to you hard.
What are some common myths about copyright law?
Jim: Copyright law isn’t complicated for an author. You just have to decide whether to register and when. You may need to decide when you should pursue something in court as opposed to going through Amazon.
On the other side of copyright laws, you may need to know when you can use a song lyric in your book or as an epigraph. Some companies register lyrics for their artists, and they can be very litigious if you use their lyrics in a book.
That comes under the rubric of fair use. You’re allowed to use a certain portion of published material. Song lyrics are a separate issue. The real concern is asking for permission to use it. There’s a case to be made that song lyrics can also fall under fair use, but I’m not recommending that route to authors.
Thomas: There are certain industries, like the record industry, that you do not want to go to court with. Another industry is the company, Disney. They and their lawyers are vindictive and mean, and I would put all of the record industry in that category.
So, even though legally, you may be in the right, I wouldn’t try to make a fair use argument against any kind of Disney property.
Jim: If you want to use a song lyric, you can paraphrase the lyrics. For example, instead of writing “We all live in a yellow submarine,” you can say, “On the radio, the Beatles were singing about that yellow submarine that everybody was living on.”
I once wanted to put a whole song, “Anything Goes” by Cole Porter, in a book. I wrote to the holders of that copyright and received permission to put that in my book. The copyright notice states that the lyrics are quoted with permission.
Thomas: In any discussion of copyright, it’s important to talk about fair use.
There is tension where copyright is pulling in one direction, and fair use is pulling in another direction. Courts look at different criteria for determining fair use.
For instance, one strong defense for fair use is parody.
Saturday Night Live regularly takes copyrighted works and ridicules them with parody. They don’t get permission for it. They make a fake commercial for a new Apple product and make fun of how expensive it is. The parody defense is a strong defense.
Another defense for fair use is education. If a teacher photocopies a page of your book and distributes it to students for an exercise, she’s copying it on a photocopier. That’s a copyright violation! But the courts would say it’s probably fair use because she’s doing it in an educational context.
Jim: The fair use doctrine is a cloudy, murky world. Sometimes it’s only settled through litigation.
Thomas: If your fair use of one copyrighted work makes people more interested in that copyrighted work and has a positive impact on the commercial appeal, that’s also a strong defense.
The classic example is a book review. Even a critical review puts the book in front of people who don’t know about the book yet. Authors make a big deal about permitting people to review the book. In reality, you don’t need permission to review because you can use the fair use defense and say, “I’m taking a small portion. I am ridiculing it, or I’m commenting on it.” It doesn’t make a difference if it’s a positive or negative review. It still puts the book in front of new people.
Do you agree?
Jim: The courts look at all these factors. It’s an amalgam of how much was used, the commercial impact, and the educational aspect. They look at all of it.
Song lyrics are all over the internet. The courts should ask how much damage that actually does to the marketability of the song. Once again, I’m not advocating this, but I’m saying we should think these things through. If you’re ever going to think of them, go find a good lawyer and talk it over.
How does an author find an intellectual property or copyright lawyer?
Thomas: In Austin, most of the intellectual property (IP) lawyers do patent and trademark work. They’re not really in the copyright game. How can an author find a good lawyer who understands copyright?
Jim: The best way is to get a recommendation from someone who knows a good IP lawyer.
You can also visit FindLaw.com. It’s a website owned by Thomson Reuters, which is the big legal publishing company.
You can learn how to find a lawyer in your area who specializes in this work. I would advise finding a lawyer who will set up an initial free consultation. If you have to pay a little bit of a fee, that’s fine. They will give you the profile of the lawyer, their specialty, and what they’ve dealt with.
Thomas: If you are an IP lawyer and have opinions about what we’ve said, you’re welcome to post your services on the job board at AuthorMedia.social. You can say, “I’m an intellectual property lawyer. I work with authors. Here’s what I do. Here’s a link to my website.”
That’s one of the great features of AuthorMedia.social. It’s a freeway for my listeners to connect with other professionals in the publishing world. I would love for an IP lawyer to jump on there and hang their shingle. We have a lot of indie authors who would love to hire a lawyer if they just knew a good way to find one.
But if we don’t have any IP lawyers in the house, FindLaw.com is a backup. They’re not going to make a recommendation. They don’t have ratings or user reviews, but they will provide a list of six lawyers in your area who do intellectual property law.
Tell us about your writing and how you include the legal world in your novels?
Well, I’ve written a number of legal thrillers. I usually include a legal aspect in my plot because the law courtroom drama is ever fresh. I loved being a trial lawyer. I love the strategy and tactics that trial lawyers employ. It’s good fodder for a conflict.
Thomas: Can I request a future book? Can you write a book about an indie author who gets into a copyright dispute with a big powerful company that’s totally not Disney?
It would be fun to read because it would take people into the world of intellectual property law.
Do you have any final encouragement for authors just learning about copyright?
Jim: Educate yourself. It’s very easy to do. There are good books on copyright law. NOLO Press publishes good books for consumers in these areas of law. Don’t be afraid of it because it’s not that complicated.
Don’t be afraid to write what you feel you need to write. Write what you are being called to write. If there’s an important issue you want to tackle that involves making controversial statements, go ahead and do it.
If you have any doubts about what you’re doing, run it by a lawyer. These publishing companies all have lawyers that review manuscripts. If it ever comes to that, you can get the protection you need. But the law is really set up to protect content creators, people who are writing about important issues, people, and events.
Thomas: There is a quote from Captain America that I think summarizes this well. He’s talking with Peter Parker in the Civil War Comics, and he says:
“It doesn’t matter what the press says. It doesn’t matter what the politicians or the mob say. It doesn’t matter if the whole country decides something wrong is something right.
This nation was founded on one principle above all else: the requirement that we stand up for what we believe, no matter the odds or the consequences. When the mob and the press and the whole world tell you to move, your job is to plant yourself like a tree beside the river of truth and tell the whole world, “No, you move.”
That’s the Captain America of the classic comics.
That’s how we need to be as authors. We need to plant ourselves by the river of truth. We don’t let the bullies push us away from the truth. We stand there, and that is the best defense when it comes to pretty much everything.
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