Wednesday, May 11, 2011

Copyright Issues

An update from yesterday: The story about the knight marrying the hag has been identified. It was from The Wife of Bath's Tale in Chaucer's The Canterbury Tales. But it was also a popular story of Chaucer's time, with Sir Gawain from Arthurian legend usually being the knight. I seem to have merged the two in my recollection. The bit about it being a story within a story to illustrate what women really want comes from Chaucer, but the part where the knight marries the hag to save someone else is Gawain, as the Wife of Bath's knight wasn't nearly that noble. Meanwhile, I've thought of one more thing that kind of irks me about the traditional Beauty and the Beast story. The "beauty" is chosen as the best candidate for breaking the curse because she's a really good person, someone who can see past appearances and isn't greedy or selfish -- and so she's rewarded by being forced to leave her home and live in an isolated castle with a beast. It reminds me of all those times people have tried to set me up with men because they needed a confidence boost and I'm so nice. Granted, the girl in the story did eventually get rewarded with a rich, handsome husband, but doesn't a really great girl deserve a great guy without first being kept prisoner by a beast? It might be fun to have a beauty and the beast story where both of them have some lessons to learn, where she may be beautiful, but she's a total bitch. I have tried to write it, but I didn't do it right. Someday, though ...

For this week's writing post, I'm going to tackle a topic from the business side, the issue of copyright. First, a disclaimer: I am not an attorney, and this is not meant to be legal advice. I'm just doing a very general overview based on my knowledge of the industry and the media law course I took in journalism school. If you want to know more, you can find books on the topic in a library, and if you need advice on a specific issue, you should consult an attorney specializing in literary or intellectual property law.

Copyright is established from the point of creation, and you own the copyright on anything you write (with some exceptions, which I'll get to later). You don't have to put the copyright symbol on it or register it with the Library of Congress, though there are additional legal protections if it is registered. Because you own the copyright on your work, that means it can't be copied or published without your permission. If you write a letter to someone, you still own the copyright and it would be a copyright violation for the recipient to publish or copy it without your permission. When you "sell" a book, what you're actually doing is licensing the work to a publisher, giving that publisher permission to duplicate and distribute your work in exchange for payment. That agreement lasts for a certain period of time, depending on the contract, usually as long as the publisher continues to publish and sell the book in certain quantities. The agreement is usually exclusive for a particular geographical area or form of publication, so the author can't license the same book to multiple publishers in the same country, unless it's something like audio or graphic novel rights to the book. When rights revert to the author, the author can sell the book again. Articles and short stories are usually first serial publication rights, so after it's been published (the contract may specify a time period) the author can sell reprint rights. A short story published in a magazine can later be sold to an anthology, for instance.

"Out of print" is not the same thing as "out of copyright." Even if a book is out of print, not available for sale anywhere other than a used bookstore, the book may still be under copyright and may not be republished without the author's permission (likewise, there are many books that are out of copyright but still in print). The length of the copyright period depends on when the work was produced because the laws keep changing, but it's generally a safe assumption that if the author is alive, the book is still under copyright. However, the author being dead does not mean the book is in public domain. The books available for free at archives like Project Gutenberg are in public domain and not protected by copyright. If the author is living, you should probably be paying to download it, and if you aren't, you and the person who put it online are violating copyright because the act of uploading it is an unauthorized publication and the act of downloading it is making an unauthorized copy.

It's often said that you can't copyright an idea, only the execution of the idea. The line between idea and execution can be a little hazy. The actual words are definitely included, but elements of execution that go beyond the specific words are also considered under copyright, like the characters and the situation. So, I could write a book about a boy who learns he's a wizard and goes off to school to learn wizardry, as long as I use my own characters and my own "universe." But I can't retype or scan the Harry Potter books and post them to the Internet. Unauthorized publication of something that the author and authorized publisher should be receiving money for is piracy. And I can't write my own stories about Harry Potter's further adventures or about his kids attending Hogwarts. Fan fiction is technically a copyright violation because it uses characters and situations created by the author of the original work, but most authors and publishers turn a blind eye as long as it's not done for profit. You could possibly get away with writing Harry's further adventures and posting it to an archive, but you'll be in big trouble if you try to sell the e-book of your story about Harry on Amazon.

The exception to copyright ownership falls into the category of "work for hire." In this case, someone other than the author owns the copyright, and this is part of the agreement between the author, publisher and copyright holder. You see this in "shared world" projects, where multiple authors write in the same world about the same characters and situations. Then the publisher usually owns the copyright. You also see this with media tie-in books, where authors are writing stories about characters from TV shows. Then the corporate entity that owns the series owns the copyright. "Work for hire" also usually covers work done as an employee. Unless you have a specific agreement with your employer stating otherwise, it's generally assumed that work you produce for your employer is owned by the employer, not by you. You can't sell it to someone else, and your boss or co-workers can forward or duplicate your memos, e-mails, etc., for business purposes without violating copyright.

The other exception to copyright is called the "fair use" doctrine. You can quote small amounts of a work under copyright without permission if it's for purposes of education, scholarship, criticism or review. It can't be a substantial amount, which is why things get tricky when authors want to use lines from song lyrics or poems in a novel. A song is short enough that one line might be considered too much of the total work, and a novel doesn't really fall into the criticism, education or scholarship category. Even lawyers don't have a clear view of that situation, and that's why authors generally either avoid the issue entirely by mentioning the song without quoting the lyrics or by seeking (and often paying for) permission to use lyrics. "Fair use" comes into play when a critic quotes short passages from a novel in a review or when information from a book or article is cited in an article or another book.

However, a key to "fair use" is that use of other people's work must be attributed -- and that's required whether or not the work being quoted is under copyright. When you're quoting someone else, you have to give the author credit. This is like in research papers where you have to cite your sources for the information you're using. Copying something someone else has written without giving credit is considered plagiarism. I've recently become painfully aware of this as I've discovered that someone has been taking some of my writing posts and putting them on his blog as though they're his own work. That is plagiarism. When I'm basing a post on something from a book, I'm careful to cite my source, and then I don't use that author's exact words, I try to come up with my own examples, and I'm presenting my own take on those concepts. I'm happy for people to share my posts, but I expect to get credit for them, since I do them to help promote my books. Since this person steals from me so regularly, I'm assuming he either reads my blog or subscribes to the writing posts, so this is public notice that I know what you're doing, I'm watching you, and if I don't see a public apology and an attribution of your source for those posts, I will be taking action.

For a hypothetical of how some of this might work, Jane Austen's Pride and Prejudice is under public domain. That means if I wanted to publish it myself, maybe with a forward based on my essay about it that I wrote for a book, I could do so as long as I put Jane Austen's name on the cover as the author. It would be plagiarism if I tried to publish it as though I wrote it, even if it's not under copyright. Because this work is in the public domain, I can use the characters and situations to create my own books, but I'd need to credit that Jane Austen created the characters. Notice that one of the authors listed for Pride and Prejudice and Zombies was Jane Austen. There are also mysteries where the P&P characters are the amateur sleuths and sequels about the other Bennet sisters. My essay on the book quoted passages, but citing where they came from. If I wrote a book with a character who was a Jane Austen fan, I might have her quoting lines from the novels, but in the context of the book I would need to show that she was quoting Austen and not try to pass that off as my original dialogue. It would be plagiarism to use descriptive passages from Austen in my narrative without acknowledging that those passages came from Austen.

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