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.