Piracy on the High Cs

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This article was originally written for my Agent Anonymous column for the Science Fiction and Fantasy Writers of America.   I’m reprising it here, because it’s information everyone should know about copyright and other legal issues pertinent to publishing.

Piracy on the High Cs

Okay, serious-face everyone.  Often I start off my articles with a quip or a quote (amusement value may vary), but today I want to talk about a whole bunch of serious issues, particularly what can be copyrighted or trademarked, what’s considered fair use and what’s considered piracy or plagiarism.  You would think some things to be self-evident, but I find that misinformation and rationalization have in some instances replaced reason.

To start: titles aren’t copyrightable.  We have only so many words in the English language.  Quel suprise…many of them get used more than once.    Type “Transformation” or “Divergence” into your Barnes & Noble search engine some time and see how many books pop up.

Ideas are not copyrightable.  Whether you have a werepigeon menacing bail-out-fund-abusing businessmen or a hemophobic vampire, your brand-shiny-new idea is not protected under copyright law.  It’s the expression of the idea…the way that’s it’s conveyed, portrayed, voiced, written, artistically developed, etc. that’s protected.  This is a very important distinction.  As everyone who reads queries and slush piles knows, ideas will pop up again and again.  Maybe the Mayan calendar is ending.  Maybe something like the swine flu has swept the world and inspired stories of killer viruses and world-ending plagues.  Maybe we have no idea what sparked the sudden influx years ago of novels about cloning Jesus from the Shroud of Turin.  The point is that no two people will handle the same idea in quite the same way, which is why classic stories like Romeo & Juliet, Beauty & The Beast, Dr. Jekyll & Mr. Hyde have been done over and over, sometimes in very fresh and unique ways, barely recognizable from their initial inspirations.

That said, because so many people confuse this fact (that ideas are not protected under copyright law), it’s a good idea not to read or authorize fan fiction based on your work, though some writers turn a blind eye as long as there’s no commercial use involved.  You don’t want there to be any confusion should your mind toy with the same ideas some of your fans have developed or risk them trying to stake a claim on your characters or concepts.  Authors may want to put something to this effect in the FAQ pages of their websites and have a canned response ready when someone asks about unauthorized material.

Piracy is using someone’s work with no authorization or remuneration to the holder of the copyright.  For instance, all those file-sharing sites that scan books and make them available for free.  Even worse are those who sell their scanned or otherwise obtained editions illegally.  Let’s be clear…this is not helping the authors, as some pirates have claimed.  It’s not promoting their work or honoring them or doing anything but stealing.  In this case, it’s stealing the royalties that would otherwise be due the publisher and the author.  As many of you know, publishing is a fairly low profit margin industry.  We cannot afford to lose out on sales because someone has the idea that everything should be free.  I know I’m preaching to the choir here—at least I hope so—but I’d like to see some of these pirates try to argue that they shouldn’t have to pay the phone or electric company and see where it gets them.  I wonder how long they’d stay in business or sit in the dark with their “principals” to keep them warm.  Do we value our creature comforts more than creative expression?  Don’t artists deserve to eat?

Okay, wow, I didn’t even realize I’d dragged my soapbox in with me when I sat down to write this article.  Anyway, The Free Dictionary on-line has a very good and extensive article on these issues here: http://legal-dictionary.thefreedictionary.com/Piracy+%28media%29 for anyone interested in more info, less tirade.  The long and short of it is, there are legal ramifications to unauthorized use of someone’s work.

While we’re on the subject, let’s talk about plagiarism, something we’ve seen a bit of in recent years.  Plagiarism is different than piracy.  In the former, someone will use someone else’s work verbatim or with very little changed and pass it off as his or her own.  Remember that expression is copyrighted.  It’s not the same as two people having stories about hemophobic vampires.  It’s one author deliberately using the progression of the storyline or passages from the other’s work to create their own.  In this day and age when you can type a phrase into a search engine and see what comes up and peek inside books on the Internet, this isn’t just criminal, it’s…well, stupid.

Getting back to titles not being copyrightable…what about trademark-able?  A trademark is a word or a phrase that will be used to distinguish a business, product, goods or services from others in the field.  You can’t trademark the title of your book, but you can trademark the name of your series, particularly if there will be derivative works…movies, comics, waterbottles etc.  For example, Spaceballs® the Toilet Paper.  However, I don’t recommend trademarking unless this is truly an issue for you because it’s an expensive, time-consuming and much more involved process than registering a copyright.  You have to prove that your trademark is in use and reprove and reregister it regularly.

Okay, so hands off someone’s trademark, material and actual expression of ideas…where does that leave room for fair use?    Fair use isn’t as simple as “two lines are okay, but four are right out.”  There are several factors that go into determining fair use.  For example, what’s being quoted?  Is the material used for the purpose of critique, scholarship, review or education?  How substantial is the portion presented compared to the bulk of the work?  Is the use likely to devalue or compete commercially with the work quoted?  In other words, if you’re using a very small portion of text for a scholarly purpose and your own work is not for commercial sale, you’re in the clear, as long as you include attribution.  If not, you may want to consult a copyright lawyer or do some more research on your own.  Even better, clear permission to make absolutely certain your use is above-board.  Legal departments at publishers insist on signed permissions these days to keep clear of any problems down the line.

Work may also be used for the purposes of spoofs or parodies.  For example, Spaceballs was a clear parody of Star Wars, as Galaxy Quest was of Star Trek.  These works are humorous, but can also be seen as commentary on the original pieces.

Basically, if I have one message here, it’s to be sure that credit is given where it’s due (and financial remuneration as well) and when in doubt, remember three important letters: CYA….Cover Your Arse.

Resources:

The Copyright Office

The Trademark Office

The Free Dictionary on Piracy

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23 comments to Piracy on the High Cs

  • Speaking of copyright, it never hurts to point out that technically – by law – a copyright exists from the moment of a work’s creation. There isn’t an actual legal need to register the copyright – but registration does grant certain benefits. It is my understanding that most every traditional publisher registers copyrights of completed works on the author’s behalf. Is that correct?

    One thing I’m curious about, though, is that if copyright technically exists from the moment of creation… what do you see as the purpose of registering that copyright?

    Also, there’s the old idea that comes around every once in a while of a “poor man’s copyright”, i.e. sending a phyiscal copy of one’s book to one’s self through the mail. I understand this is a complete legal fallacy – probably in part because sending a copy to yourself does nothing to establish actual authorship of the work in the envelope, and also because of the aforemention legal technicality that a copyright alrready exists from the moment of creation.

    Something else I’ve been wondering about even more recently… more and more writers are turning to the cloud as they write, because it gives them freedom and flexibility. But when some companies have broad-reaching license agreements, how does will this affect copyright in the future? For instance, from Google’s terms of service:

    11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

    (I became aware of the latter after reading a pretty harrowing account of a Google account shutdown here; other cloud-based services may vary in how broad their terms reach; I checked Zoho, for instance, and it is a lot narrower.)

    How do you think that changes the conversation about copyright?

  • The Copyright Office lays out the benefits of registration on page 7 of their Copyright Basics circular http://www.copyright.gov/circs/circ1.pdf. In short, though, the three greatest benefits are 1) proof, 2) while copyright exists at the moment of creation, registration is necessary in order to bring about a suit and thus legally protect the copyright and 3) (per p. 4 of the circular) “if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages.”

    As far as the language you point out with Google (which exists also with Twitpic and other companies as well), I’d be very interested to see what a lawyer says on the matter.

  • Thank you for this, Lucienne.

    I’ll add one thing that she told me over the phone when we were speaking about this very issue. And if I don’t get it right, please correct me, Lucienne!

    >>it’s an expensive, time-consuming and much more involved process than registering a copyright. You have to prove that your trademark is in use and reprove and reregister it regularly.>>

    What this means (aside from the money spent in acquiring and re-registering the trademark) is that if someone else tries to use your trademarked material, you *must* defend it, even in court. To not defend it is allow the trademark to disappear. This is why MickyDs and other *huge* companies take mom and pop businesses to court. They must, to keep the trademark active. Tres expensive!

  • […] you’re looking for a pithy blog from me today, I’m over at Magical Words, blogging about “Piracy on the High Cs” (regarding copyright, trademarks, infringement, […]

  • Faith, yup, you have that absolutely right. Here’s a link to the circular on Trademark basics: http://www.uspto.gov/trademarks/basics/BasicFacts_with_correct_links.pdf. The expenses and all are a lot more involved, and you not only have to prove use, but continued use and that you’re defending your brand by taking on any similar usages.

    The circular says that “A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention.” (Just in case anyone wondered about the differences.)

  • This is very helpful, Lucienne. Thanks. Authors sometimes think they can quote from song lyrics as they used to quote from literature in college English papers. You can’t unless you are prepared to pay (or the song is out of copyright). A few years ago I wrote a book that used a handful of lines from XTC songs (forgive me if you’ve heard me cite this before). I got permission from the band and everything. Then Virgin Music, who owned the copyright, got involved and billed me 50K. Seriously. I had to rip all the lyrics out of the book (and put them on my website for free!). Moral of the story, citing someone else’s work in your for-profit book is probably going to cost you a mint, more if you try to sneak it by without paying and get caught after publication. Don’t do it.

  • Thanks, Lucienne. I ran into the fair use issue when I was an undergraduate working in the preservation department of my university library. Under certain academic loopholes, damaged books could be photocopied in part or in whole and the copy reshelved in place of the old one. We got a new Dean who was, understandably, quite concerned about the legality of this practice and my boss spent a week going over copyright fine print with him to demonstrate that we were well within legal guidelines. It was quite eye-opening for a little undergraduate to realize how complex copyright law can be.

    And I’m still snickering over the werepigeon.

  • This has been on my mind a bit lately, too. In my WIP, I have a couple of quotes from Asimov and Clark within the text of the novel. They’re inscriptions above doors in a library, kind of a thematic thing.

    I’m not sure if it’s okay for me to do that, nor do I know–if it’s not–what kind of steps to take to make it legit.

  • B.J., here’s what the Copyright Office has to say about fair use: http://www.copyright.gov/fls/fl102.html. When in doubt, it’s best to get permission. In the case of an estate, various authors groups, like the Science Fiction and Fantasy Writers of America, keep a list of contacts. If you’re working with a publishing house, they’re likely to flag anything on which you need permission and insist on having you get everything signed in triplicate to be sure that all your bases are covered for the protection of all involved.

  • With respect to piracy, IMHO one should only put energy into it if you actually expect to gain money from worrying about it.
    You can have lawyers go after people distributing your work for free, but if you win, a fair portion of that money will go to your lawyers. Any extra after that you’d need to judge against the time you’ve spent talking to lawyers, going to court, and so on.

    Yes, you hear about massive lawsuits being won by the RIAA, with college kids being fined millions of dollars…as if they could come up with that kinda money. Were you to bring suit against some college kid, who ultimately could pay 10k before filing for bankruptcy, or would need to drop out of college as they can no longer afford tuition, and would need to spend the rest of their lives working minimum wage as they’d not be able to dig themselves out of that hole…with most of that money if not all going to your lawyers, well…

    For those who are selling ones work, and they’ll likely be selling it electronically, well, ya need to think about the price you’re selling your work at. If someone can save $7 by buying from a pirate, they may just do that. If someone can save $1, well, they may do the right thing.

    That, however, is something publishers should think about…

    Personally, I don’t think it’s a huge problem. At least for mid-list authors, who tend to have small but incredibly loyal fanbase who will gladly give $. If you’re JK Rowling and are making plenty of money, well, some less that reputable fans may decide that you have enough money and may be more likely to pirate.

    It’s still important to copyright, however, as that at least raises the bar on pirates. Even if that only means putting a ‘copyright @ 2011 mynamehere’ on your work.

  • Razziecat

    Roxanne, I feel that the point of combating piracy is not only to protect one’s source of income, it is also to discourage the pirates from stealing an author’s work; if it costs the pirate (student or otherwise) money, time & effort to defend themselves, that is the price (literal & figurative) they pay under the law…and it isn’t within someone else’s rights to decide how much money is “okay” for Rowling (or anybody else) to earn. Not that this is something I currently have to worry about; I just have very strong feelings about this issue.

    Lucienne, this is an excellent article! Thank you for putting this info into easy-to-digest form.

  • mudepoz

    I know a little about trademarks. A bit about copyrights. It gives the Tall Dude and I something to talk about other than odd science facts. One of the most tedious jobs he has to do as an intellectual property atty. is protection trademarks. If a TM becomes a commonly used word that doesn’t necessarily refer to the original product, it’s lost. Aspirin was trademarked by Bayer. Coke is rabid about it not being used to order Pepsi. He spends a lot of time tracking down unapproved uses of Harley materials. Kleenex is becoming generic.

    When I required my students to write papers at one of them there non-graded colleges :) I ran into a bit of plagiarism. I guess they didn’t think I read Wikipedia. Now it’s eBay vendors. There was also a friend of mine who writes Erotica. His book ended up on a free download site and he lost quite a bit of revenue. He finally gave up, deciding to use it as advertising and gritting his teeth. I think I discussed it with Faith some time ago. All these gadgets are wonderful, but it’s easier to copy, steal, and spindle (huh?) writer and artistic works. This is a great topic!

  • While I am against piracy, I also don’t sweat over it too much. For one thing, I firmly believe that 90+% of people who pirate material are not lost sales because they were never going to purchase the material in the first place. Of the remaining few percent, a large portion has no idea who the author is and is being exposed for the first time. Then the remaining percentage is a few lost sales. Can this hurt? Of course. There are reports in the blogosphere of writers who were pirated to the point of it hurting sales and they were unable to get another book published because of weak sales numbers. But, so far, those stories are the outliers. And most of us are not big enough names for the lost sales percentage to amount to much. None of this is to defend piracy, but merely to relax those who worry about it at the early stages of their careers.

  • As someone who loses revenue to the intellectual theft which is piracy I am appalled by the ‘it’s no big deal’ argument. I sincerely hope that if you download one of my books illegally that it contains a virus which causes your computer to explode, losing years of work. And if we meet in a bar, expect me to punch you in the mouth.

  • Shawna

    I laughed out loud at that last bit there, AJ, although I can certainly appreciate the sentiment. Stuart’s opinions on piracy more or less mirror mine, but it’s interesting that I never thought of books as something someone would pirate. Movies, music, software, sure. But books? Why would you ever? I suppose books have always been a little too sacred to me to fall under the category of something someone might steal.

    On the subject of fanfiction, what Lucienne said is only good sense, but it makes me so sad. I love fanfiction. I think it’s an amazing display of creativity and love for the source material, and that fans can do some absolutely brilliant (and sometimes horrible) stuff. It’s a little depressing to know that in the interest of covering their backsides, authors should discourage (or a least not actively encourage) fanfiction. Totally understandable and reasonable, but sad that it’s necessary.

    Also, I’m a little concerned about that Google stuff. I write almost exclusively in Gdocs because I’ll forget to back my stuff up otherwise. Not that I think a megacorp like Google would have reason to swipe a writer’s work, but unsettling regardless.

  • Copyright talk on the internet is like one of those things: politics, religion, and money. All big buttons to push.
    When writing epic fantasy I had no worries about improper use of other’s works, because all literary works that crop up in that story are entirely made up. But in my contemporary fantasy the main characters keep wanting to make pop culture references which raises the issue mentioned above by B.J. It would seem corny to avoid all references and a little obvious to mask them all behind rephrasing. But I guess you have to some times.

    Do op-shop second hand book sales and book trading cause the same harm as piracy?
    I mean if a person buys a book second hand, the author gains no income from that sale. How is that different from taking a copy? (assuming the copy was not stolen from the author in the first place) They are murky waters. Most of my books are hand-me-downs from my mother who happens to share the same taste in novels. So Robin Hobb, one of my favourite authors, has never seen any of my money. Have I stolen from her? I’m not trying to be facetious here, I’m honestly trying to illustrate the less than black and white nature of things. Though counterfeit work being sold is plain and simple theft or fraud, however you want to look at it.
    PS: How much do libraries pay to loan books?

  • Shawna – Google is all about stealing writers’ works. Several of the writers’ guilds, including SFWA, are battling them in court over violation of copyright. Google’s push to provide every book ever written online (with copyright owners expected to ‘opt out’ rather than opt in) is a huge legal fight right now. Don’t think for an instant that just because Google is big, they won’t steal from you.
    (stepping off soap box now)

  • Shawna

    Whoa. That’s not cool. Not cool at all. Thanks for letting me know! I had absolutely no idea something like that was going on.

    I don’t suppose anyone knows of a similar service that’s less… worrisome?

  • mudepoz

    I remember a FF controversy that fits well with this page. I was looking for decent links, this one doesn’t seem bad. http://fanlore.org/wiki/Marion_Zimmer_Bradley_Fanfiction_Controversy

  • I’ve asked this question of a number of published authors, but I’d love to hear your take on it. Is it OK/smart to use trademarked brands and/or names of businesses in a novel or short story?

    The answer I’ve received most often is, “You’ll probably be fine, but they could sue you.” That seems almost contradictory and very frustrating. The story feels more real and the audience can connect better if Pete picks up a Coke, or Bob invites Sue to the Starbucks for a cup of coffee. Can they really sue for a mere mention of their name in a publication? Should I have Ann eat a box of chocolate sandwich cookies instead of Oreo’s?

  • mudepoz

    Colette, I’m not an IP attorney, just a custodian…I did ask the TD your question.

    [It’s fine; you’re not using the trademark to sell a similar type of good or service.]

    That will be 500 dollars, made out to the Tall Dude :)

  • I imagine if I had the 500 dollars, I wouldn’t be asking the question. I’d know already, have the advance, and be happily published.:) Thanks for the help. I owe you one, Tall Dude.

  • Colette, though it should be fine, sometimes companies take exception anyway. There was a pretty famous case recently of a company being used as part of a setting suing over it, so it’s best to be careful. As you say, it’s pretty impossible to write a contemporary novel without any brand usage whatsoever, but if anything appears in a negative light (or, say, as the backdrop to a murder), it might be best to get permission or change names and enough else to make something unidentifiable.