Embarking on the journey of self-publishing is both exciting and challenging. One vital aspect often overlooked is understanding the kinds of copyright. This article aims to shed light on the various types of copyright laws, offering insights to help self-published authors make informed decisions to safeguard their creative works. So let us uncover the intricacies of intellectual property and explore how you can use them to protect your literary assets.
In this article, you'll find:
Disclaimer: The information from this article is intended as a general guide to understanding different types of copyright. However, it should not be regarded as legal advice. If you're uncertain about any aspect of copyright law, we strongly recommend consulting with a qualified copyright lawyer.
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What Is Copyright Law?
Copyright law is a legal framework that protects original works of authorship, such as books, from unauthorized use. Copyright, in general, is a legal right granting the creator of an original work exclusive rights to their intellectual property (IP). Rights can include but are not limited to distribution and modification.
A book is copyrightable the moment it's created in a tangible form. There are various types of copyright law, each pertaining to different aspects of creative ownership. Copyright owners have exclusive rights over their work until a designated period after which the work may enter the public domain, allowing free use by the public. This concept essentially maintains a balance between protecting the rights of creators and serving the public interest.
The moment your work is created and fixed in a tangible medium, including digital formats like an ebook, it is protected under copyright law. This means that your ebook cannot be copied, distributed, or otherwise exploited without your explicit permission as the copyright owner/ copyright holder. This protection extends to all the original text, images, and other content that make up your ebook. Therefore, whether you're publishing in print or digitally, your original work is protected by copyright law.
What can be copyrighted?
It is crucial to note that while the work itself can be copyrighted, the idea behind it cannot. For instance, you cannot register the copyright of the idea of an orphan boy discovering he's a wizard. However, the text of J.K. Rowling's Harry Potter and the Philosopher's Stone, as published by Bloomsbury, is copyrighted due to its unique expression of that idea.
Moreover, the Harry Potter movies, being separate creations, hold their own copyrights owned by Warner Bros. Adaptations for film or tv shows represent a different type of copyright, as they involve the transformation of an original work into a new medium, thereby creating a distinct piece of intellectual property with its own set of protections.
The range of works that can be copyrighted is vast and includes various forms of creative and artistic expression. These encompass poems, novels (also short online literary works), films, videos, music compositions, choreography, sculptures, paintings, and even computer software.
It's important to remember that copyright laws and their application can differ between regions. For instance, in both the United States and the European Union, the creator's rights to their work are protected for their lifetime plus a period of 70 years after their death. However, the specifics can vary.
In the EU, there's a “moral rights” principle which means the creator has the right to be recognized as the author of a work, even if they are no longer the copyright owner. Moral rights pertain to the author's ability to assert ownership over their creation and to contest any activities that may negatively impact or distort the integrity of the work. This principle doesn't exist in US law.
The US has a “fair use” doctrine that allows limited use of copyrighted material without requiring permission from the copyright holders. In contrast, the EU operates under a system of "exceptions and limitations" to the exclusive rights of the copyright owner, which are generally more restrictive than the American concept of “fair use.”
What is Public Domain?
The term public domain refers to creative works, including fiction and nonfiction, that are not protected by copyright and can be freely used by anyone. The transition of a work into the public domain typically happens because its copyright protection has expired or it was never eligible for copyright protection in the first place
The copyright office has clear guidelines on what type of work is a work that can be protected under copyright law. The key purpose of copyright protection is to provide the creators of these works with exclusive rights over their use and distribution.
However, once a work enters the public domain, these exclusive rights cease to exist and become available for public consumption without restrictions. That is, anyone can use the work in any way they see fit without seeking permission or paying royalties. This includes the right to reproduce, distribute, and create derivative works based on the public domain work.
What is copyright infringement?
Copyright infringement occurs when someone uses a work protected by copyright law without permission, infringing certain rights granted to the copyright owner, such as the right to reproduce or perform the copyrighted work or to make derivative works. It pertains to any type of copyright, be it for literary works, musical compositions, or adaptations for film and TV shows.
Note that copyright infringement can have serious legal and financial consequences. If a court finds a person guilty of copyright infringement, they may be ordered to pay statutory damages.
Statutory damages are compensation that a court can award in copyright infringement cases. The amount can vary significantly, but they provide an option for unpublished works or in cases where actual damages are hard to calculate.
In addition to statutory damages, the court can demand the infringer to pay the copyright owner's legal fees, including attorney's fees. This can be substantial, as copyright litigation can be complex and prolonged. The accused may be responsible for court costs, such as the filing fee for the lawsuit. This acts as a further deterrent against copyright infringement.
Published vs. Unpublished works
Under the U.S. Copyright Law, a work is considered published when copies of it are first released to the public. On the other hand, unpublished works are those that have not been distributed in any form.
Before 1978, copyright protection was typically only applicable to published works. However, this has changed, and currently, both published and unpublished works can benefit from copyright protection.
The status of a work, whether published or unpublished, can influence certain aspects. For instance:
- Works published in the United States must be deposited in the Library of Congress.
- Unpublished works can be protected by copyright regardless of the nationality or domicile of the author.
- Some restrictions on a copyright owner's rights are only applicable to published works.
In Europe, there are several state points of view when it comes to unpublished works. British copyright law safeguards unpublished works under the Copyright, Designs and Patents Act 1988. Moreover, the Berne Convention stipulates that unpublished works should also receive protection. Even though unpublished works generally receive similar treatment to published ones, there are noticeable disparities in the extent of protection provided to both.
The fact that a work is unpublished is critically important when determining aspects such as eligibility for copyright protection, the scope of copyright protection, exemptions from copyright infringement, and the remedies available for copyright infringement.
What Are the Types of Copyright?
Copyright law, as a subset of intellectual property law, provides creators with control over their original works, offering a variety of copyright types to meet the specific needs of different kinds of creative output. Understanding these types of copyright is essential for authors, artists, and creators in all fields.
How many types of copyright are there?
The most common types of copyrightable works include literary works, musical compositions, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. Each of these categories has its nuances and specifics in terms of what can be protected and how.
1. Literary works
These include novels, poems, articles, and even computer software. The copyright protects the expression of ideas, not the ideas themselves. It means that while you cannot copyright the idea for a romance novel, you can copyright your unique telling of a romance story.
One of the specialized areas in copyright law is the types of copyright in computer-related works. These can include software codes, apps, and digital content. Software codes can be protected as literary works, provided they are original and exhibit the minimal amount of creativity required. Digital content like blogs, websites, digital art, and online courses can also be copyrighted.
2. Musical compositions
This encompasses the music itself (the combination of melody, harmony, and rhythm) and any accompanying words or lyrics. Copyright protection prevents unauthorized performances, recordings, or adaptations of the work.
3. Dramatic works
This includes movies, plays, and tv show scripts. Copyright here guards against unauthorized performances or adaptations of the script.
4. Pantomimes and choreographic works
The original dance moves or actions are protected here. Copyright prevents others from performing or recording the work without permission.
5. Pictorial, graphic, and sculptural works
These include photographs, paintings, graphic designs, and sculptures. Copyright here means that others cannot reproduce, distribute or display the work without consent.
6. Motion pictures and other audiovisual works
This protects the visual and audible elements of films, TV shows, video games, and other audiovisual presentations. This prohibits others from displaying, distributing, or performing the work without permission.
7. Sound recordings
This involves protecting the recording itself, separate from the copyright of the underlying musical or lyrical content. Unauthorized reproduction or distribution of the recording is prohibited.
8. Architectural works
This involves the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The copyright prevents others from constructing buildings based on the design or creating, selling, or importing articles embodying the design.
While the type of protection varies, the core principle remains: unauthorized use of copyrighted work is prohibited. It's also important to note that copyright protection does not last indefinitely and varies based on factors like when the work was created and the author’s lifespan, as well as on a signed contract.
8. Collection of works
Group registration is another aspect of copyright law that allows a collection of works to be registered as a unit. This can be beneficial in situations where multiple similar or related works are produced in a short period, for instance, a series of blog posts, a collection of photographs from a specific event, or a set of episodes from a podcast.
The US Copyright Office has introduced a novel online group registration solution for unpublished works, referred to as GRUW. This option allows up to ten unpublished works to be registered simultaneously using the same application.
Compared to the previous method for registering an "unpublished collection," GRUW provides several advantages. It facilitates the office's ability to scrutinize each work for copyrightable authorship more effectively, establish a more comprehensive record of the claim, and enhance the overall efficacy of the registration process.
Trademark vs. Copyright
Trademarks and copyright are an integral part of intellectual property protection but serve different purposes. Copyright is designed to protect original creative works; it safeguards the rights of creators over their work, preventing unauthorized reproduction or adaptation.
On the other hand, trademarks protect brands and identifiers, such as logos, company names, and slogans. They prevent confusion in the marketplace by distinguishing the goods or services of one business from another.
While copyright restricts the creation of a similar artwork or the re-use of an artwork in a certain way, trademark restricts the creation of similar copies or a similar brand that would mislead customers. Fictional characters can also be trademarked if they have acquired a secondary meaning that binds them to a certain company. For example, Mickey Mouse is trademarked.
In practice, trademark protection of fictional characters protects customers from cheap, low-quality copies: Primark could not have created their Harry Potter collection without permission and license from Warner Bros. If you are curious about the intricacies surrounding trademark disputes and copyright infringement accusations in the specific case of Harry Potter, here is an insight.
1. Protection scope
Copyright protects original works of authorship; in contrast, trademarks protect logos, brand names, and slogans used in commerce to identify the source of goods or services.
Copyright protection typically lasts the author’s lifetime plus an additional 70 years in the US. In contrast, trademarks can last indefinitely as long as they are used in commerce and defended against infringement.
Copyrights are granted automatically once a work is created and fixed in a tangible form. At the same time, trademarks need to be registered to get protection, although some protection is provided for unregistered marks.
Copyright prevents others from copying, distributing, or modifying the work without permission, while a trademark prevents others from using a confusingly similar mark in the same field of business.
The symbol © is used for copyrighted works, whereas ™ is used for unregistered trademarks and ® for registered ones.
Copyright of Fictional Characters
Copyright of fictional characters is an extremely interesting question, and it always comes to play whenever somebody is writing fanfiction or cross-fiction. Are fictional characters deas that cannot be copyrighted, or are they part of the text to the level of inalienability?
In the United States, fictional characters are protected by common law and are subject to two tests in every case to help decide whether they are protected or not:
1. Well-delineated test
According to the well-delineated test, a character has to be properly delineated and defined to deserve copyright. It has to be well-developed in terms of physical and conceptual attributes and be original. And most importantly, the character has to be recognizable and identifiable as the same character across multiple occasions. Based on this test, Tarzan and Superman are protected by copyright laws, as they are unique and especially distinctive.
Determining if a literary character qualifies as a work of art requires assessing the depth of character description. The more detailed the portrayal, the more objectively perceivable the character.
For fictional characters, originality necessitates being the result of the creator's unbound creative decision. Therefore, creators should strive for detailed descriptions of their characters to ensure they aren't perceived as "stock" or archetype characters that lack original traits. Stereotypical characters, archetypical and stock elements cannot be copyrighted.
2. Story being told test
A character is not subject to copyright protection if it's only a “vehicle” for carrying the story forward and not constituting the story itself. For example, if you have a detective who does not have the distinctive characteristics of Sherlock Holmes but is simply there to solve the mystery, this detective is likely not to be the subject of copyright law.
A challenge arises when characters evolve throughout an extended narrative, where they must remain objectively identifiable. James Bond is subject to copyright, although many actors have played him: his characteristics are very well defined. It is not only a character that can be copyrighted but certain elements of a character’s identity, if they define the character. For example, the Batmobile is specific enough to be copyrighted, as it is not a simple vehicle for transportation
Under European Union law, the merging of intellectual property rights is explicitly recognized, meaning a fictional character could be safeguarded by both copyright and trademark law.
To be deemed a work, a creation must be original, distinctly identifiable, and perceptible in a manner that allows it to be seen or heard. If a creation doesn't meet these criteria, its status as a work must be evaluated on an individual basis.
Applying this definition to fictional characters becomes intriguing. Drawing parallels with humans, a character consists of three key aspects: physical appearance, personality, and name, all of which must be original for copyright eligibility.
Central characters usually have a higher chance of protection because the story revolves around them. However, being central doesn't ensure protection, as the originality criterion is paramount.
Derivative Works: Legal Issues with Fanfiction
Everybody knows that Fifty Shades of Grey started as Twilight fan fiction, but it is much less known that Neil Gaiman won one of his Hugo for writing one!
What is fan fiction? It is usually a story placed in an imaginary world of an existing art piece: film, series, or book. Followers and fans of the story like to imagine their favorite characters in different scenes and follow their story after it ends or before it starts. Fan fiction results from a great emotional attachment to the original works and is usually created and shared within a community of similar-minded people.
There is nothing wrong with this: many authors especially encourage fan fiction or embrace the stories coming from fans and might even join the canon. But can fan fiction be distributed publicly, and can fan fiction writers make money out of it?
In certain cases, copyrighted elements can be used to create a new work. Fan fiction is generally regarded as derivative work, a piece based on original work but which has originality of its own and is not merely a copy of the work on which it is based. If derivative works are created lawfully, they are also subject to copyright in their own right.
Under U.S. copyright law, a copyright holder has the exclusive right to create derivative works based on the copyrighted work. Without permission from the copyright holder, creating a derivative work, such as fan fiction, could potentially infringe upon the copyright.
However, not all fan fiction is considered an infringement. Some fan fiction may be protected under the doctrine of fair use, which allows for the limited use of copyrighted material without permission from the copyright holder under certain circumstances, like commentary, criticism, or parody. Determining whether a work falls under fair use is complex. It depends on several factors, including the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the market for the original work.
Regardless, whether fan fiction is a copyright infringement is contentious and often depends on how the copyright holder chooses to enforce their rights. Some copyright holders tolerate or even encourage fan fiction, while others are more protective of their rights.
Outside the US, renowned British author Terry Pratchett, known for his Discworld series, maintained a hands-off approach towards fan fiction until his passing in 2015. He intentionally avoided reading fanfics, suggesting that it all works well as long as people exercise good judgment. He wasn’t tolerant of fanfics, stipulating that they should not encroach upon his space, so he wouldn't "trip over it."
Neil Gaiman, an author celebrated for works like Stardust, Coraline, and American Gods, has expressed a relaxed stance towards fan fiction. His main conditions are that the fanfic authors acknowledge the characters as someone else's intellectual property and that they do not profit from their fan fiction.
The legal status of fan fiction in the UK might have improved with the introduction of a new exception to copyright law. This exception permits caricature, parody, or pastiche, potentially providing a legal avenue for fan fiction.
Understanding the various types of copyright is essential for self-published authors that need to know that copyright isn't just about safeguarding what's yours; it's about understanding the fine balance between your rights and those of other creators.
Whether it's recognizing what constitutes public domain, determining copyright infringement, or navigating the complexities of derivative works, your knowledge of copyright types is a powerful tool in your author's arsenal. As the guardians of our intellectual creations, we must stay informed and protected and contribute meaningfully to the creative landscape. And keep publishing!