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Advice (FWIW): Copyright Registration

In addition to being an agent, I am a lawyer. I was a lawyer first, actually. And before I was a publishing lawyer, I was a tax lawyer. At a huge corporate firm. (Really!) Now my practice covers most areas of intellectual property law, including trademarks and copyright, publishing agreements, and entertainment law. It is a nice complement to being an agent, as I can spot certain problems in advance (such as: “No, you can not use the name of the Senator with whom you had an affair in your memoir, lest you want an invasion of privacy suit” — true story). I can also advise writers on the ins and outs of copyright.

Most people probably know that if you create a work of art, you own the rights to that art — and, specifically, the right to make money off that art. What is confusing, however, is what “copyrighting a work” means, what actually does for you, and how to do it.

In prior years, publication with notice (the “(c)” symbol) was mandatory for a writer secure copyright and thus to assert any copyright ownership. Now, your copyright is extant as soon as you put pen to paper or record a note. When you “copyright a work”, you are not bestowing copyright on it because the copyright is inherent in it. You have copyright to your work even if you don’t register. If someone steals your work you can still sue them for actual damages (meaning, how much money you lost and how much money they made off your work). But by registering the copyright to your work, if you sue for infringement you may also be eligible for statutory damages and attorneys’ fees.

So why do we still put a copyright (c) symbol on the things? The copyright symbol simply puts people on notice so that they cannot in their defense claim inadvertent infringement. If you don’t have it, your work is still protected — although it used to be required for protection, and this is the source of some confusion.

OK, so then why do you need to register with the US Copyright Office at all? Certain monetary damages — attorney’s fees and statutory damages — that you might be owed because of someone else’s infringement accrue only from the date it is formally registered. I have seen artists whose work was not properly registered lose out on years of potential damages because they only properly register the work with the copyright office when they first learn of the infringement.

I would argue that in this digital age when material can be disseminated so quickly and widely, it is more important to formally register your work with the U.S. Copyright office. If you publish a book, the publisher will do that for you — it is (or should be!) a part of every publishing contract. (A publishing contract is in essence a copyright license from you, the copyright owner, to the Publisher, allowing them to distribute and make money off your work.) But if you are self-publishing or you have an unpublished work that you are circulating widely, it might be a good idea to go on to the U.S. Copyright Office website and register the work, which you can do electronically (for $35).

What if you have a blog? First and foremost, you should have a clear copyright notice at the bottom of every page. You’ll see on this blog that I do not, but that’s because I can’t figure out how to do it! (Can someone help me?) If I did, it would look like this: Copyright (c) Kathryn Beaumont, 2013. Remember, this doesn’t mean the copyright is registered, per se, it just means that I am putting my readers on notice that they can’t claim that they didn’t know this was my original work. I would also add a Terms of Use page somewhere, which states that if people are reading your blog, then they agree not to x, y, or z (steal your work? Make mean comments? Post comments or work that is copyrighted by others? Steal your photos? Whatever you want…)

Should you also register your blog with the U.S. Copyright Office? If your blog is widely read, has had copyright infringers poach from it in the past, or you plan to put it into a book someday, I’d recommend it. Unfortunately the Copyright Office is not clear whether blog postings are that exist online and nowhere else are considered “publications” and, thus, what sort of protection they need to have to allow you to sue and be awarded certain damages. The thinking for some time had been that you were eligible for all damages if you registered the entire contents of your blog and then updated it subsequently every three months — because you have three months after publication to register a work for purposes of statutory damages and attorney’s fees. But if the Copyright Office won’t comment on whether a blog is “published” for these purposes, then the three-month window is sort of arbitrary. With an unpublished work, you can’t sue until it is registered.

So, basically, you can register the contents of your blog once, and then however often makes you feel comfortable (or you want to pay $35) register the chunk of posts since your last registration as a new work.  You would have to create a new registration for the updates as opposed to being allowed to register them as some sort of new derivative of the overall blog registration.

Why should I care about this? I just want to write! Many artists create because they just have to — it’s an innate calling (“Painting is like breathing,” etc.), and thus don’t always think about their work as “property” or as having monetary value. But it does! There is always potential value, so it’s wise to protect it so that when you finally realize that value — even if you think it will never happen — it’s not too late.

NB: What I didn’t cover: copyright damages, what constitutes infringement, or Fair Use. I welcome all thoughts and experiences you have had with copyright registration — particularly blogs. But if you have specific questions as they relate to your own work, I can’t answer them here.

2 Comments

September 12, 2013 · 4:34 pm

J.K. Rowling vs. the Debut Author

CuckoosI am one of the thousands of people who have recently bought J.K. Rowling’s “new” mystery, The Cuckoo’s Calling. When the book was simply an obscure, if well-reviewed, debut novel by a writer named Robert Galbraith, I had no interest — quite simply because I didn’t know about it. And even it I had, would I still have bought it? Perhaps. I love mystery novels — but there are hundreds of new mysteries released every year, and how would I know that this one would be worth not only my money but my time? As soon as I learned that Galbraith was a nom de plume for Rowling, however, I scooped it right up. Not only because I thought it might be well written but because, by that time, I was intrigued by the “scandal“. No-name author = no sales. Mega-huge author = bestseller list. (For the record, I really enjoyed the book. I hope Rowling writes other Cormoran Strike — what a Harry Potter-esque name for its troubled detective protagonist! — mysteries.)

This brings up one of the perplexing issues authors face in the publishing world right now: that of reviews and sales. It’s a circular, chicken-and-egg issue. You are a debut novelist. Do you have any chance of writing a best-seller? It actually may be out of your hands.

Consider this: You write a solid book that reviewers like. Those who actually review it, that is. There are almost no national papers reviewing books anymore. Reviewers such as Publisher’s Weekly are read mostly by those in the industry. And to snag a review in People or — gasp! — the New York Times Book Review is an almost impossible feat. So with fewer outlets reviewing, how will potential readers know about your book? They don’t. And so you sell very few copies in your first couple weeks on the market. Booksellers look at those numbers and decide not to restock copies and take your book out of its front-of-the store location (if it was there to begin with). And when it’s time to write your second book, your publisher looks at your sales numbers and offers a lower advance.

There are other issues at play other than reviews and publicity, of course. The e-book revolution has significantly changed the ways publishers publish, and I plan to discuss this often on this blog, but for a good overview as to how digital publishing affects debut authors, see this 2010 Wall Street Journal article. In short: “mid-list” authors — those who are not the marquee best-sellers but who nevertheless write books that, in the past, would have sold respectful numbers — are being squeezed out.

But back to the issue of publicity. Who gets the reviews? Big-name authors. Who gets the front-of-the-store placement? Those same authors, who bookstores know will sell — e.g., J.K. Rowling.  And if you’re not a big-name author who commands the attention of the publisher’s p.r. machine, the pressure to sell and seek reviews is left very much to the author him or herself, which is why many publishers also are very interested in a potential author’s social media “platform” — yes, even for fiction writers. In other words, how many people can an author herself convince to buy her book? Can she write an op-ed for the Wall Street Journal? Can she exchange Tweets with other authors who will recommend her novel? Can she leverage her network to get on the Today Show?

So I do encourage all writers to make a place for themselves in the social media world and to forge connections that will help them find their readers. This piece is an interesting summary of what several agents look online for when evaluating a potential writer.

Lest  you get too discouraged, however, I am still an idealist (or try to be!). I really do fervently believe that if the writing is good, editors will recognize that. My friend Lacy, whose novel EARLY DECISION was just published is a case in point — she is truly the only one of my friends not on Facebook (gasp!) but, yet, her writing credentials and contacts were solid and her prose stunning.

2 Comments

September 3, 2013 · 11:41 am