Today’s article is on some serious subject: different types of copyright. We have already published a guide at Bookmachine regarding ebook copyrighting dos and don’ts in an easy-to-digest form. It is at Bookmachine that I write about copyright pages, DRM, ISBN and pen names: please do check it out! This article, however, is a much more in-depth take on copyright law and types of copyright. Stay with me if you dare.
Disclaimer: This post does not contain official legal advice. We’re trying our best to supply you with correct information, but when in doubt, check it out – with a real copyright lawyer.
Introduction: What is Copyright?
There are different types of copyright depending on the type of artwork in question and local laws. 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 not limited to distribution and modification.
What can be copyrighted?
Any original work; but not the idea itself. You can’t copyright the idea of an orphan boy suddenly discovering that he is a wizard. You can, however, and I’m sure Bloomsbury did copyright the text of Harry Potter and the Philosopher’s Stone. (And Harry Potter, the movie, is separately copyrighted and owned by WB.) Basically any type of creative or artistic work can be copyrighted, but the exact rules differ by countries. Poems and other literary works, films and videos, musical compositions, choreography, sculptures, paintings and computer software can all be subject to copyright, just to name a few.
Types of Copyright and Infringement
What are the different types of copyright: what does copyright protect and does not protect? Well, it depends on the type of work protected: copyrights surrounding music include synchronisation licence and mechanical licence, for example. An owner of a copyrighted work has exclusive rights to make and distribute copies of the original work, create derivative works, and prevent others from creating substantially similar works. If somebody tries to sell or in any way modify copyrighted work, this person can be held responsible for copyright infringement.
Copyright usually expires after 50 years of the author’s death, but the exact laws change by country. Once a work’s copyright has expired, it becomes public domain. This means that everyone can use them as they please. Read more about distributing public domain books.
How to protect yourself from infringement?
There is no need to register for copyright once you have finished your book: every artwork is subject to automatic copyright and is protected from the moment of creation. However, shall it come to the need of ever having to prove your own copyright, it is best to register at the local copyright office. US authors can register at the US Copyright Office, and so can everyone register at their local copyright institutions.
How to report an infringement?
If you see your work being illegally distributed or resold under a false name, best practice to first contact the store in question with a DMCA (Digital Millennium Copyright Act). It might help to provide a legal link where customers can purchase your ebook. If you can’t find their DMCA form, just contact them by email. Most stores don’t want to risk legal action and remove the book in question if they find your claim to be sufficient.
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 ‘ideas’, that cannot be copyrighted or are they part of the text to the level of inalienability? The regulations regarding fictional characters—just like regulations regarding the whole work—differ by jurisdiction. 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 in order to deserve copyright. It has to have well-developed in terms of physical and conteptual attributes and be original. And, most importantly, the character has to be recognisable 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.
2. Story being told test
A character is not subject of copyright protection if it 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 subject of copyright law.
Visual and literary characters
The copyrighting of a fictional character does not depend on the form the character is pictured in: both literary, graphic and other visual characters can be subject to copyright – but only if the character is described distinctively enough, like Sherlock Holmes. Interestingly, James Bond is subject to copyright, although many actors have played him: his characteristics are very well defined.
Components of character’s identity
It is not only a character that can be copyrighted but certain elements of a character’s identity, if they are defining the character. For example, the Batmobile is specific enough to be copyrighted, as it is not a simple vehicle for transportation.
Stereotypical characters, archetypical and stock elements cannot be copyrighted.
Derivative Works – Legal Issues with Fanfiction
Everybody seems to know that the Fifty Shades of Grey started off as a Twilight fanfiction, but it is much less known that the great Neil Gaiman himself won one of his Hugo’s for writing one! What is fanfiction? It is usually a story placed in an imaginary world of an already existing piece of art: film, series or book. Followers and fans of the story like to imagine their favourite characters in different scenes, follow their story after it ended or before it started. Fanfiction is a result of 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 fanfiction or embrace the stories coming from fans and might even join the canon. My favourite example is The Empty Hearse episode of Sherlock that was widely criticised (or acclaimed) for being too ‘fanfictiony’. For another great examples of fanfiction ending up on the big screen listen to this podcast.
But can fanfiction be distributed publicly and can fanfiction writers make money out of it? That is a more interesting question. There are certain cases where copyrighted elements can be used to create a new work. Fanfictions are in general regarded as derivative works: a derivative work is something that is based on an original work but has originality on 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 on their own right.
Using a copyrighted work to create the genuine parody of it is absolutely allowed – however, it is not exactly clear what counts as genuine parody and what not.
2. Fair use
Fair use is a very often used and misused defence by people who infringe copyright – even though fair use rules are not present in every country. In the US, fair use means that some uses of a copyrighted work are allowed, especially for educational and non-profit purposes. Fanfictions, at least in the Unites States, are considered to be fair use unless they are distributed in a for-profit manner. Long quotations of an original work are not considered to be fair use.
Trademark vs. Copyright
Trademark laws exist so that a customer can identify a product as belonging to a certain company or brand. A trademark can be a logo, a design, or shape: anything that is enough to distinguish a brand from another. While copyright restricts the creation of a similar artwork or the re-use of an artwork 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, but not the idea of a talking and dancing mouse with big, black ears.
In practice, trademark protection of fictional characters protects customers from cheap, low quality copies: Primark could not have created their Harry Potter collection without the permission and licence from Warner Bros. (Actually, the copyright disputes surrounding Harry Potter would worth an article on their own right.) Whether fictional characters in the public domain can be trademarked or not is an interesting and unclear question: read more at the Writer’s Fun Zone and on Forbes.
As the exact copyright laws are governed by country, if you are trying to use a copyrighted work in your own work, always check with a lawyer. If you are interested in copyright law to ensure that you yourself are protected, contact your local copyright office for advice and registration.