Writers In The Storm is delighted to welcome back Susan as she kicks off her new series on copyright and rights clauses in publishing contracts.
Note: As always, Susan is open for questions down in the comments!
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As 2013 draws to a close, I’m starting a brand new #PubLaw guest series here at WITS.
Many of you have commented about your desire to take charge of your writing careers in 2014 – to launch a new year with a brand new publishing outlook. For some, that means finishing a new novel. For others, finding an agent or a publisher. For others still, 2014 will mark the launch of an independent publishing career.
Some of you may look at this list and say “yep, I’m planning all of the above.”
Whatever publishing path you choose, and wherever you are along it, it’s critical that you know your legal rights. In particular, authors need to understand the ins and outs of the rights a copyright gives them – and the ways in which a publishing contract exploits and divides those rights.
In light of that, the shiny new #PubLaw series here at Writers in the Storm will be taking a look at the various rights which fall within the larger umbrella of “copyright,” and how common publishing contract language handles each.
WHAT IS A COPYRIGHT?
In general terms, a “copyright” is a form of legal protection which covers all creative works “fixed in a tangible medium of expression.”
Copyright protection is automatic, and begins at the time of the work’s creation. A work doesn’t have to be published to acquire copyright protection.
The requirements for a valid copyright include:
1. copyrightable subject matter (for our purposes, it’s enough to know that novels and short stories qualify), which
2. meets the minimum “threshold for protection,” (generally, this means “it was actually written by the author claiming copyright,” it’s original, and it’s more than a trivial variation on someone else’s work),
3. is “fixed in a tangible medium,” (meaning it’s capable of being transmitted and/or reproduced--saving it on a computer is enough) and
4. was created, or is owned, by the person claiming the copyright.
WHAT DO I HAVE TO DO TO OWN A COPYRIGHT IN MY WORK?
Create it yourself and save it in a way that allows for transmission or reproduction to someone else. (A computer file is sufficient. So is a handwritten copy.)
Copyright automatically attaches to the work when you create it.
Registration with the U.S. Copyright Office is not required in order to own the copyright, but it is required in order to sue infringers and to obtain certain kinds of damages. For maximum protection, copyright owners should register published works within six (6) months after the initial publication date. (However, if that doesn’t happen, a copyright can still be registered at any time during its term—albeit with some potential loss of rights to certain claims and damages.)
HOW LONG DOES A COPYRIGHT LAST?
In the United States, copyright lasts for the life of the author plus 70 years, if the author is a “natural person” (meaning a human rather than a corporation or other business entity).
When the author is a business or other entity, copyright lasts for the lesser of 95 years from the date of the work’s initial publication or 120 years from the date the work was completed, whichever comes first.
WHAT RIGHTS DOES A COPYRIGHT GIVE ME?
The owner of a copyrighted work acquires a broad set of rights. The most important are:
1. The right to control copying and publication of the work, in all forms and formats, as well as all languages.
2. The right to create and control creation of all derivative works.
A “derivative work” is a work based upon the characters, plot, and (in the case of specialized worlds) settings created in the original work. Sequels qualify as derivative works, but so do film adaptations, stage plays, graphic novels, video games, apps, and merchandising rights.
3. The right to control distribution (or to prevent distribution) of the work.
4. The right to control performance and display of the work and any derivative works.
5. Moral rights, defined as the right to prevent mutilation, modification, and alteration of the work, as well as the right to ensure the author’s name is displayed on or in connection with the work. Traditionally, we don’t pay much attention to “moral rights” in the U.S.A., but they’re a fairly big deal overseas.
6. The right to sue for damages if someone violates these rights without permission.
Along with all of these rights, the author acquires the sole right to license, or grant permission, for other people or entities to exercise these rights on the author’s behalf. A publishing contract generally addresses all of these rights in one way or another—and it’s important that every author understand the various ways a publishing contract might address the different parts of the author’s copyright.
In the months to come, we’ll take a tour of common contract language and examine these various clauses in detail.
Thank you for joining me today, and thanks to Writers in the Storm for giving me the chance to share a little copyright cheer for the holidays!
If you have questions about this or any other copyright issues, please ask in the comments – I love to help!
Susan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Minotaur Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. The sequel, BLADE OF THE SAMURAI, will release in July 2014.
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