What top 5 copyright basics can Captain America and his sidekick, The Winter Soldier, teach us? 

Whether you first met at the theater munching popcorn or got acquainted on Disney+ - or even read the comics – we’re all familiar with Captain America and his sidekick, Bucky Barnes, aka the Winter Soldier by now. With a staggering $20bn plus at the box office no one can doubt the popularity of the Marvel Cinematic Universe and the stories and characters that have us crying and clapping and howling at the screen. 
 
Behind the screens, however, are the individual writers and artists that have carefully crafted our most beloved heroes and storylines over decades. Writer and comic creator Ed Brubaker, along with Steve Epting, resurrected the long dead Bucky Barnes to create the Winter Soldier, to great sales and critical success from its first issue.

However, did you know that most comic writers, artists and creators are “work-for-hire”, meaning that they only receive a flat fee and royalty payments for the companies they work for, and do not retain ownership over their creations?

Ed explains that despite being the co-creator of the Winter Soldier, he has mixed feelings of his involvement as ‘work for hire’: “I have a great life as a writer and much of it is because of Cap and the Winter Soldier bringing so many readers to my other work.”

He adds, “for the most part, all Steve and I have got for creating the Winter Soldier and his storyline is a ‘thanks’ here or there, and over the years that’s become harder and harder to live with. I've even seen higher-ups on the publishing side try to take credit for my work a few times, which was pretty galling.”

The Winter Soldier highlights a particularly poignant and relevant pop culture case study, one that points to the intricacies of copyright protection including the complexities of work-for-hire (essentially, if you sign a work-for-hire contract you are passing all the ownership of your copyright to the person who hired you, meaning that you can no longer make any decisions or negotiate deals and income for your work).

For indie authors just starting out, and seasoned authors, writing and publishing your book is an investment of time, money and energy. Don’t sign the wrong contract and lose your copyright and the right to sub-license/sell your creation - or lose sleep over potential infringements - with these top 5 basics of copyright that every writer should know:

1. What exactly is copyright and how does it protect me?

Copyright law protects creators of original material from unauthorized duplication or use. An original work needs to be in a tangible form for it to be protected by copyright laws, an idea cannot be protected. So, let’s say you’ve put your brilliant idea for a book into a fixed form with a first draft (whether on paper or typed on a computer) - congratulations, you automatically own the copyright in that creation! 

As the owner of your original material, this now means that you have the exclusive right to:

• Reproduce the work in books or other forms and devices;
• Sell, distribute, and commercially exploit the work;
• Create derivative works, such as translations, adaptations, sequels, and abridgements; and
• Display or perform the work publicly, either live or in recorded form.
  (Source: Helen Sedwick, business lawyer) 

Under law you can now claim infringement of your copyright if anyone violates these exclusive rights. Exceptions to the rule may include fair-use and work-for-hire. 

2. If copyright is automatic, why should I register my work?

Copyright may indeed be “automatic”, but copyright registration is not. According to the Berne Convention, the legal framework that governs copyright globally, copyright is awarded automatically when a work is created after significant mental activity.

However, the beneficiary of the work is the person who has the strongest and earliest proof of ownership of it. It may help to think about copyright protection as insurance for your content, with worldwide coverage. It’s not mandatory to have, but being able to prove you are the original creator of your work gives you a winning advantage if you ever need to take your case to a court of law.

That’s exactly why registering a copyright is so important. It generates indisputable evidence about who the owner of the copyright is and when this copyright was claimed.

Moral of the story – register your work promptly! Gone are the days when you had to post the manuscripts to yourself, you can register digitally at the U.S. Copyright Office or on even on a platform like copyrightsworld.com.   

3. Why should I use a copyright notice?

Displaying a copyright notice, such as ‘© All Rights Reserved,’ has not been a legal requirement in the US since 1989. It does, however, clearly identify you as the copyright holder, thereby decreasing the likelihood it will be used without authorization and bolstering legal evidence in the case that it is.

If your writing or parts of your writing are being used online without your consent, you can assume that the user knew your work was copyrighted. This is a very good example of how a copyright notice can help as evidence of ownership in case of legal dispute.

4. Are fictitious characters protected by copyright law?

This depends. Is the character considered distinctive, like Harry Potter, Sherlock Holmes or Superman? In the United States, characters that are distinctive, recognizable and identifiable across multiple occasions are protected by common law and can be protected by trademark law.

Examples include a wizard boy with a lightning scar and glasses and an eccentric genius detective with a deerstalker hat. Most people will be able to identify these characters, Harry Potter and Sherlock Holmes, respectively, from the descriptions alone, a good indication that these characters have distinguishing traits and are in trademark territory.  

However, no one has a copyright or trademark on generic ideas of characters, archetypes and stock characters, such as witches, the damsel in distress or prince charming.

It’s worth noting that book titles, names and slogans are not protected by copyright law, although may be protected as trademarks, if proven to be closely associated with your writings. 

5. How can active copyright protection & monitoring help? 

Estimates show that 191 million e-books were sold in the United States in 2020, and over 5 billion blogs and 7 million blog posts are published every day. Clearly, digital publishing in all formats (text and audio) is here to stay.  

Ensuring that you are sufficiently educated on the basics of copyright laws and the rights you have as a creator can be enough to make sure you don’t sign on that dotted line and are not passing your rights over to someone else - as you will be passing over all rights to generate income from your creation too.

Knowing your rights also sets you up to prove original ownership in a court of law. Using a copyright protection and monitoring service can make the protection of your rights much easier and efficient, and these online services are typically streamlined to avoid unnecessary bureaucracy.

***

Writing and creating characters and stories are a labour of love and an investment of emotion. The Winter Soldier example serves as a timely reminder that by keeping in mind these 5 copyright basics, your rights as a creator can be better protected.

Your story matters. Now you can spend more time crafting it, rather than worrying about how to protect it!

Check out what Copyrightsworld can do for you.

Disclaimer: Copyright law requires taking abstract legal concepts and applying them practically to real life situations that often differ. A small fraction of this incredibly complex and intricate subject has been reflected in this post, however, this post does not contain official legal advice. For official legal advice please contact a copyright lawyer.