The Place For My Writers Notes

Original posting: Wed, 13 Oct 1993 18:00:06 JST

This is based on FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.0) by Terry Carroll (by permission).

[it looks as if the current version is at http://www.tjc.com/copyright/FAQ/, or you can do a search for it?]

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Tink's Summary of Important Points from the Copyright FAQ

[Be aware that I am not a lawyer, that this is just my understanding of this field, and if you get your leg bit off following my advice - you won't have a leg to stand on when you sue me. This is also an active field of law right now, so today's notion won't be true forever... laws of man, unlike laws of nature, aren't set in the frame of the universe]

The KEY stuff:

When you set anything down in any "tangible medium of expression" (e.g., paper, disk, tape, canvas, etc.) IT IS AUTOMATICALLY COPYRIGHTED. That means YOU (and you alone) have the right to distribute, copy, modify, perform, or develop derivative works from it. IT IS YOURS!

Even if you post it to a workshop, you have NOT lost your copyright. You have (instead) exercised your exclusive right to copy and distribute it.

If you want to develop something based on someone else's material - ask them. It's common courtesy and ensures that YOU don't trip over a lawsuit. You don't want to try one on for the fun of it, honest.

Nagging Details:

Some questions that may be nagging you... and answers, as far as I can tell...

"I posted this without a copyright notice! Does that mean I've lost all my rights?"

Don't worry - you still have exactly the same copyright you had before. Since 1988 (in the U.S.), you do not have to include a copyright notice. Simply posting does not damage copyright, although it may impair your ability to collect damages.

You do not need to register with the Copyright Office or include a copyright notice, although you may. Registration costs 20 dollars.

Including a copyright notice is essentially free, and warns anyone looking at the work against "innocent infringement". That means they can't claim they didn't know the material was copyrighted, a defense which may allow them to avoid paying certain damages.

A copyright notice looks like this "Copyright 1993 Mike Barker". The word copyright (or the C in a circle mark, if you can do it), the year of first publication, and the name of the copyright holder.

"This hasn't been published, so it doesn't have a copyright, does it?"

The minute you set something down in "any tangible medium of expression," it is copyrighted material. Write it down, tap it in at a keyboard, talk it into your tape recorder - and you have copyright on that material.

"This was published without a copyright notice, so it isn't copyrighted, is it?"

WRONG! Publication does NOT remove copyright. (Note: older materials may indeed have become public domain if published without copyright notice. The safest course is to assume it has copyright, though.)

"What does copyright mean? Does it protect my ideas, too?"

Copyright is YOUR right to control creative work which you have produced. Specifically, you control copying, derivative works, distribution, performance, and modification of your work. You have these rights for as long as you live, or a little longer (ghosts of authors last 50 years).

Ideas, systems, factual information, or pre-existing material incorporated in your work ARE NOT protected. Titles, names, short phrases and slogans have no copyright protection.

Note that creative and original, in terms of the copyright laws, are minimal. Mostly it means you made it. That's all. (don't bother looking for the marks of the muse, the courts won't)

Something which has no copyright is in the "public domain." Anyone can use it for any purpose. Ways something gets into the public domain include waiting for the copyright to expire (wait until the ghost goes away); U.S. Government works; material that cannot be copyrighted; and abandoning copyright by "an unambigious statement or overt act on the part of the copyright holder that indicates his or her intent to dedicate the work to the public domain."

It is HARD to lose copyright. You have to deliberately work at it.

"Some jerk stole my story and sold it, but not for much. That's not a crime, is it?"

Copyright infringement is a FEDERAL CRIME if it is willful and for commercial advantage or private financial gain. Note that taking a copy of someone's story and selling it to a magazine as your own work would clearly fit this.

"This is just email. That's not copyrighted material."

Postings and email are copyrighted material. YOUR STORIES AND POEMS ARE YOUR COPYRIGHTED MATERIAL, EVEN IF YOU POST THEM!

I'm not sure whether there has been a case yet to verify this, but such material seems to clearly fall within the definition of material that has a copyright. In fact, the archives form a clear "tangible medium of expression" like any library.

"What can't be copyrighted?"

Titles, names, short phrases and slogans can't be copyrighted. Copyright protects only an author's original expression. It doesn't extend to any ideas, system or factual information that is conveyed in a copyrighted work, and it doesn't extend to any pre-existing material that the author has incorporated into a work.

(note - I have discussed with the originator of the FAQ what parts of a writer's product seem to be protected. CHARACTERS seem to be fairly clearly protected, so don't steal them. Settings, plots, etc. - I'll let you know if I ever get it straight. Don't expect it anytime soon, as this is at the fuzzy edge of the law. Consider what follows as a guide - your court case may be different.)

"Is everything in my story protected? I mean, my characters, settings, plot, everything?"

In essence, yes. Your original work is protected. BUT (especially with regard to plot), you may find that a son rebelling against parental orders has a long history as a plot - the original part is pretty small.

Where original, then, your story is protected. Your characters are protected. Your plot, as far as it is original, is protected. Your settings are protected.

However, while recognizable "chunks" from your story are protected, this shouldn't be pushed too far. For example, it may be difficult to show that characteristics of the character are exclusive to your piece (there may be other people in the world who light a cigarette twice).

Also, you (unconsciously, I'm sure) may have borrowed material from older sources, works in the public domain. Such ideas would not be protected. You have mixed in factual material which is not protected.

So, while your original expression and the parts of your story - characters, setting, plot, etc. - that are original are protected, there may be parts of your story which are not yours.

Frankly, I recommend you not worry about it. If someone uses some of the ideas in your story and others, then writes an original piece, be complimented that they found your ideas interesting enough to use and reassured that most of us couldn't copy something without making changes to save ourselves. If someone lifts the whole thing in a recognizable way, copyright protects you.

Editors (and others) will tell you that they receive stories dealing with the same ideas from totally separated authors fairly often. The problem is that the muses aren't all that unique - the words, and the skill in presenting the muses' inspiration, are. Quit fretting over ideas, and worry about getting your work in the best shape you can.

"This is copyrighted, but I'd still like to use it. What should I do?"

Write the author (in care of the publisher, if nothing else). Tell them what you would like to do, and get their permission to do it.

There is a doctrine of "fair use" which allows very limited amounts of material to be used in specific circumstances without asking permission. From my point of view, this doctrine is far narrower than I thought it was, and should probably NOT be depended on. Read the next section for some notion of what to check.

If you have any doubt about using it, ASK THE AUTHOR.

"Do you mean I gotta get permission every time I include a quote from someone else's posting?"

You are probably not using their material for commercial work, and you have probably learned to copy only the necessary material. Further, the impact on the market for most postings is minimal. So, you don't absolutely need to get permission. It would be safer.

There also are postings (e.g. submissions for criticism) which specifically are intended for comments, which may provide an implied license for use of the materials.

Private email is a whole different bag of earthworms, but (at a guess) you need permission to distribute it, at least. For private email, I'd say ask the author before any use.

The handling of network postings is speculative, in that no cases have been brought. Further, despite the tendency in America to go to court at the drop of a silver dollar, given the relative uneconomic conditions of the networks, it is likely that no cases will be brought.

I suppose I would recommend looking at how you are using the quotes - if you are using them in a way that you believe the original poster intended, you can probably get away without asking permission. If you are posting to places that the original poster did not or if you are using the words of the poster in a totally different context from what the poster intended, you should probably try to get permission.

THE DEFAULT, IF YOU ARE WORRIED ABOUT THE WAY YOU ARE USING IT, IS TO GET PERMISSION.

"Whether a particular use of a Usenet posting is a fair use is, as always, a very fact-specific determination. However, it's probably safe to say that it's a fair use if the use was not commercial in nature, the posting was not an artistic or dramatic work (e.g.,, it was the writer's opinion, or a declaration of facts, and not something like a poem or short story), only as much of the posting was copied as was necessary (e.g., a short quotation for purposes of criticism and comment), and there was little or no impact on any market for the posting." (from the FAQ, section 3.8)

Last Words:

Your material is protected by copyright as soon as you produce it. You must take deliberate steps to void that right, although you may exercise your copyright by distributing, copying, and modifying the work.

Whenever you want to use someone else's work, ask for permission.

That isn't so hard to understand, is it?
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