Legal Disclaimer: I am not an attorney so nothing in this blog should be construed as legal advice. It is not comprehensive and as you’re about to see, this is a nuanced subject that is very fact intensive. If you think your copyright or other intellectual property right has been infringed upon, please consult legal counsel well versed in intellectual property right matters.
As I sit here, preparing my next book to go on submission, reading other books to compare it to in the submission packet, the Twitter discourse of the day rages in the background. Fears of idea theft, copyright infringement, whether authors should participate in pitch events because someone might “steal” something from them.
I’ve written about copyright on this blog before, but that was primarily with regard to the AI and copyright infringement debate and the deeply nuanced concept of Fair Use. What I’m now coming to realize is that many writers need a 101 guide to copyright. No shame in that. Copyright is complicated and there’s a lot of bullshit on the internet.
None of what I’m about to go through will necessarily alleviate the fear of “idea theft.” Just because something isn’t expressly illegal doesn’t mean it doesn’t or can’t happen, or that people have no reason to be afraid of it. So, I’ll preface with this: Ideas have been done and redone a thousand times over. Your story is uniquely yours not because of the idea but because of the bits of you left within it. Sometimes you hit with that story, sometimes you don’t. Sometimes it’s the right moment. Sometimes it isn’t. That doesn’t mean that someone who was inspired by your idea and wrote something similar or compared their story to yours (as I am now doing at this exact moment), did it better or worse. It was simply different. It’s been said a thousand times by a thousand people wiser and pithier than me, but if you want to survive in this industry, comparing yourself to others is a thing you must do your best every day to battle. Fears of idea theft are a good place to start.
Now, onward!
Copyright FAQs (For Authors)
The following FAQ is based on federal, United States copyright law, primarily the United States Copyright Act of 1976, as amended, 17 U.S.C. §, 101, et seq. While US copyright law is generally reciprocated internationally, if the US is not your home jurisdiction, this is going to be less helpful. There are also some state laws around copyright that may up the ante on the federal law that I will not be getting into here. Again, not a lawyer and even if I was, here are just some of the reasons why it’s important to discuss your specific facts with counsel in your jurisdiction.
What does copyright mean?
In general, copyright is one of several forms of intellectual property (IP) protections available to creators and inventors. Other IP protections include things like patent, trademark, and trade secret. Each IP protection covers specific things and has specific laws that cover it (including in the case of patent law, a separate bar that must be passed by practicing attorneys). Copyright is indicated using ©. This mark can be used whether the work is actually registered with the US Copyright Office or not (unlike trademark where there are separate symbols for registered and unregistered marks).
What does copyright protect?
Copyright protects original works of authorship in the following categories:
- Literary works
- Musical works (including lyrics)
- Dramatic works (including music/score)
- Pantomimes and choreographic works
- Pictorial, graphic, or sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
While works may fall into more than one category, for the rest of this FAQ, I will be focusing on copyright protection in general and as it relates to literary works.
What doesn’t copyright protect?
Specifically exlcuded from copyright protection are the following:
- Ideas
- Processes
- Systems
- Methods of operation
- Concepts
- Principles
- Discoveries, even if they are described, explained, illustrated, or embodied in an otherwise protectable work (this means your great sci-fi tech or computer algorithm is not patentable or copyrightable because you put it in a copyrighted book)
What is a literary work?
Literary works are broadly defined as works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects. This includes things like:
- Books
- Periodicals
- Manuscripts
- Phonorecords
- Film
- Tapes
- Disks
- Cards
- Software code (see Apple Comput., Inc. v. Franklin Comput. Corp., 714 F.2d 1240, 1249 (3d Cir. 1983)).
Pertinent to literary works, the US Copyright Act also provides copyright protection to compilations, collective, and derivative works. A compilation is a new arrangement of works (whether they are copyrightable in their own right or not) that is unique and original. A collective work is a specific type of compilation consisting of preexisting copyrightable works including things like encyclopedias, periodicals, and anthologies. A derivative is a transformation or adaptation of one or more preexisting works into something new. These include things like fictionalized versions of factual accounts, movies based on books, abridgements, condensed versions, and my personal favorite, retellings.
The copyright owner of a compilation, collection, or derivative does not inherit the copyright of the original work, only gains copyright ownership over the new work. In simpler terms, this means I don’t get copyright over every Beauty & the Beast story because I’m writing a retelling. I only get protection over my retelling.
When does a work become protected by copyright?
Your work is automatically protected by law as soon as you create it as long as it is something covered under the Copyright Act and is both original (meaning it is independently created by the author and is minimally creative) and fixed (meaning it’s been written or typed somewhere). More on this original bit in a second. There are some weird situations for work produced between 1978 and 1989, but I’m going to assume most of y’all are not interested in copyright for things produced before I was born.
Reminder that a work produced solely by AI is not copyrightable. This was recently upheld by the US District Court of Columbia in Thaler v. Perlmutter, 2023 WL 5333236 (D.D.C. Aug. 18, 2023) (refusal to register a work created entirely by an AI computer system without any human involvement).
What does “original” really mean?
Under the law? Not much. Basically, for a work to be original, you have to have not copied large swaths of it word for word from something else. A work doesn’t have to new or unique to receive protection. It can be damn near identical to something else, even, so long as you did not copy it. Remember, this is COPYright we’re talking about here. Not IDEAright. And honestly, thank goodness? The amount of times I see an idea that has my heart in my throat because how did we think of the same thing and will that get to market before me and… yeah. If that could all be copyrighted a majority of us would never write again.
The work doesn’t even have to be hugely creative. “Minimal” creativity is the standard. Artistic value or merit doesn’t matter (which again, thank goodness). These are judges, after all, not art critics. The amount of effort spent is also irrelevant. If this stings to read, I know it, but let it burn and hopefully soothe because sometimes the cool slap of logic is what we all need.
Essentially, you can copyright just about anything that you wrote on your own with a minimal level of creative thought or assembly. What you cannot copyright is anything made by a robot, stolen word-for-word from another copyrighted work, and things like:
- Short phrases and single words
- Book titles
- Headlines
- Slogans
- Typefaces
Some of these may be trademarkable, though. I’d advise (not as a lawyer but as an author who has been around awhile) not trademarking popular words or phrases in your genre and just letting other people have the same title as you. It happens. Both the same title thing and the trademarking phrases thing.
How long does a copyright last?
In general, copyrights for written works last for 70 years after an author’s death.
Do I keep the copyright after I get published?
It depends. If you’re self-publishing, yes. That’s one of the advantages. If you’re publishing traditionally, not usually. While there might be some indie/small presses out there that allow you to retain copyrights or joint-copyrights of some sort, the entire point of having a copyright is to give the owner of the copyright the ability to produce and distribute the copyrighted material. For ease, most traditional publishers require you to transfer your copyrights to whatever they’re publishing to them, that’s essentially what they’re buying. Your agent can help you navigate what rights you’re selling versus keeping and if you don’t have one, there are agents who will still help you negotiate a small press contract if you have questions.
If there’s an issue with you and your press before the book is published, there are often ways to get your copyrights back built into the contract or a way to negotiate for them, but after the book has been published and distributed, that’s usually the end of the road, at least for a good long while, because again, the point of copyright ownership is the distribution and sale. That is what the press bought.
I think someone stole my book, what do I do?
First ask yourself, did they really, or do they have some similar ideas or concepts as you? Even if they stole the idea, it’s not copyright infringement. Even if they have the first twenty pages of your book and a synopsis and tweaked them and wrote their own book, it’s not copyright infringement. It might be professionally yikes when it comes to ethics in my opinion, but it’s not infringement. My advice here? Not as a lawyer but as an author who has been putting her shit out there for a looooong time? Fuck ’em. Learn from this that they’re shady and move along. Only you can write the true book of your heart anyway. Your idea won’t sing to them the way it does to you. If you’re discouraged, put it away and write another thing.
Don’t be afraid to put your work out there, though. The reality is that eventually, you have to. Whether it’s self-publishing or querying or pitching or publishing with a small press or a Big Five, eventually you’re going to put it out there. That’s why you wrote it. If you didn’t, well kudos to you honestly you’re better and more humble than I will ever be. Feel free to lock it down and never put it out there again. For the rest of folks, putting things out there is a great confidence boost on some days and a real lesson on thickening your skin in others. You will need both in this brutal industry.
Now, if they word for word stole your book and you have evidence? I would say call a Real Lawyer™. (Fun fact, the ™ stands for a trademark that is not yet registered with the US Patent Office while the ® stands for a trademark that has been registered).
Happy writing! And sharing!
Aimee Davis 