I’ve written about copyright and rights management before (here and here), but in light of a recent self-publishing kerfuffle, I wanted to revisit the issue.
Disclaimer: I’m not a lawyer, nor do I play one on TV. The following information, while accurate to the best of my knowledge, does not constitute legal advice.
The indie publishing community flew into a tizzy earlier this week over Jamie McGuire’s self-published novel Beautiful Disaster. The book had been picked up by a traditional publisher, and the indie version was taken down in anticipation of the new version. Amazon email purchasers of the original book, urging them to ask for a refund of the price differential (the new version is about $4 more expensive) or to return the self-published version. McGuire was baffled and not a little dismayed, since the refunds were coming out of her royalties. A day later–and after dozens of blog posts defending McGuire, blaming McGuire, ranting about the evil of Amazon, and panicking about the implications for crossover indies everywhere–McGuire announced on her official Facebook page that Amazon had recanted. The whole thing, apparently, had been a mistake.
Okay, deep breath. Amazon is not trying to punish indie authors who find crossover success. Books that have been “unpublished” are not removed from the Kindle’s of people who purchased them, and Amazon is not, as far as I know, planning to replace hard-working authors with genetically enhanced cyborg monkeys.
Pictured: Bestselling Author Nicholas Sparks
There was some very interesting speculation over on The Passive Voice about the real reason for Amazon’s actions. Several people in the comments pointed out that the original self-published text of Beautiful Disaster contained unlicensed lyrics from the Rolling Stones song “Satisfaction.” Again, the whole thing was speculation (and a bit of a mess, honestly), but regardless of whether the lyrics were behind the refund/removal chaos, indie authors can learn a valuable lesson.
Certain types of borrowing are protected under fair use. While there is no simple “yes or no” answer to what use is covered, there are some general guidelines:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
In essence, nonprofit or educational use is more likely to be protected than commercial use, and larger amounts of “borrowed” material are less likely to be covered than smaller excerpts. Any use that directly competes with the original work–e.g. takes a bite out of their profits–is more likely to be considered copyright infringement.
Furthermore, works of fiction are usually considered to be commercial, even if they’re self-published or unpublished. Unlike academic essays, book reviews, or analysis, fiction writers can’t just attribute quotations and go merrily on their way. Parody and satire occupy a gray area; depending on the nature of the parody and the attitude of the copyright holder, you may or may not get away with it. You may also be able to freely quote from a copyrighted work if it is integral to the point of your work. For example, a scene that would not make any sense without quoted lyrics might be protected under fair use.
As this helpful article points out, “Ideas, themes and facts are not copyrighted.” However, song lyrics, passages from books (published or not), poetry, and images are copyrighted unless they fall under public domain. Everything else should either be avoided or properly licensed. Permissions can be difficult to obtain, however, and licensing fees prohibitively high. For most indie authors, the best course is to omit copyrighted content altogether.
Public domain works are those whose copyright has lapsed or which have been licensed under Creative Commons.
Works published in the US before 1923 are considered to be in the public domain and may be freely used.
Works published between 1923 and 1964 may be public domain if their copyright was not renewed. This is the reason why the film It’s a Wonderful Life is shown on a constant loop during Christmas; the copyright was allowed to lapse, and it can be broadcast without paying licensing fees.
Works published after 1977 will not enter into the public domain until 70 years after the death of the author.
Some creators may publish their works under a Creative Commons license, which allows people to access, share, and build upon their work, but not to sell it. You couldn’t publish a Creative Commons work and make money from it, but you could quote freely. You can also find royalty-free music and pictures through Creative Commons, which can be useful for creating audiobooks or cover images.
Scenes a Faire, Short Phrases, and Titles
Scenes a faire are commonplace tropes found in certain genres. The disaster film may show the destruction of the White House or the Statue of Liberty, a spy novel may feature encrypted documents or men in dark sunglasses and trench coats. These tropes are not copyrighted, and an author could not sue for infringement on the grounds of “substantial similarity” based solely on their use.
Short phrases such as “Show me the money!” or “Here’s looking at you, kid,” aren’t protected. However, be careful of trademarked slogans such as “Got milk?” or “Where’s the beef?” since they fall under a different kind of protection.
Titles of songs, poems, books, films, etc, can be referenced without worrying about copyright. Titles cannot be copyrighted; however, if the title is also a substantial line of the song (perhaps “It’s the End of the World as We Know It (And I Feel Fine”), you may be in trouble. Iconic titles may not be fair game, either–”Blitzkrieg Bop” is instantly recognizable as a Ramones song, but “Rockaway Beach” isn’t. Rarely, a title might be trademarked; anything having to do with Harry Potter is both copyrighted and trademarked within an inch of its incredibly lucrative life.
Real People and Historical Events
Historical figures and events are fair game. You can write a novel about the Trojan War, Napoleon, or Cleopatra with a clear conscience. Be careful about people still living; while they can’t copyright the events of their lives, they could conceivably sue you for libel. Even thinly veiled charicatures may be dangerous. That’s why most books have a disclaimer along these lines: “All characters appearing in this work are fictitious. Any resemblance to real persons, living or dead, is purely coincidental.”
Fan fiction is usually okay as long as it isn’t published for commercial gain, but if the author objects, it can still be considered copyright infringement. Some authors are more welcoming of fan fiction than others; Anne Rice, for example, is notoriously against the use of her characters in fan faction.
Sometimes fan fiction becomes incredibly popular, prompting the author to publish it for profit. In that case, substantial changes will usually need to be made. E.L. James’s Fifty Shades of Grey started life as Twilight fan-fic online; in order to publish it, she had to change the names of the characters and rewrite certain scenarios so as to distinguish it from Stephenie Meyer’s work. Similarly, Cassandra Clare’s Mortal Instruments series draws heavily on her early Harry Potter fan fiction. Since the characters and plot of the published novels are unrecognizable–no one would immediately think that Jace Wayland is Draco Malfoy in a wig and leather pants–Clare is in the clear as far as copyright infringement.
If you write Jane Austen or Arthur Conan Doyle fan fiction, however, you can publish away. Your steampunk Alice in Wonderland or Sherlock Holmes: Space Detective manuscripts aren’t considered infringment because those works are already in the public domain. Bible stories, fairytales, and myths are also in the public domain, and can be freely adapted or retold.
Protecting Your Copyright
So now that you’ve deleted all the song lyrics and sparkling vampires from your manuscript, how can you protect your original work? A lot of authors seem to think that they need to send their work to the US Copyright Office (and pay a fee) in order to be protected. That’s not actually true; once you write it down in a fixed medium (e.g. a Word document), it is automatically protected. If you’re truly concerned about future litigation, you can still register, but you don’t have to.
Keep in mind that ideas cannot be copyrighted. Even though you had an awesome idea for a book about a steampunk Alice in Wonderland, someone else may have had the same idea. After all, Newton and Leibnitz invented calculus at roughly the same time without having any idea what the other was up to. That’s also why movie studios can get away with producing competing Snow White films in the same year. Unless you can prove substantial similarity (i.e. the same characters, names, and scenarios), you just can’t successfully sue someone for stealing your idea.
It’s a little naive to think that a long copyright notice stuffed with legalese will prevent anyone from pirating your book. Your diligence (or paranoia) won’t stop someone determined to enjoy your work without paying for it, but excessively restrictive DRM (digital rights management) may frustrate your paying customers. I use a short copyright notice at the beginning of my books that simply reads “Copyright [year], Erin Elizabeth Long. All rights reserved.” At the end of my books, I have a longer notice:
Thank you for reading Grey Magic. Although this book has been published without restrictive DRM (Digital Rights Management) for your benefit, it is licensed for your personal enjoyment only. Thank you for respecting the hard work of this author.
All content is copyright 2012, Erin Elizabeth Long.
ISBNs Vs. Copyright
The thirteen-digit ISBN (International Standard Book Number) identifies the unique edition of a published book. Issued by Bowker, a private company, it is not the same thing as a copyright license. If you publish a print-on-demand book, it will need a different ISBN from the eBook edition.
Most self-publishing platforms will issue you an ISBN for free as part of your agreement to publish with them. The publishers buy them in bulk (Bowker charges $125 for one ISBN…or $1000 for 1000; obviously this favors larger publishers rather than individuals). Be advised though that when you use a free ISBN from one of these platforms, they will be listed as the “publisher of record.” You (or your micropress publishing company) will be considered the “imprint on record.” That means the ISBN prefix will refer to the publishing platform, and that your book will be listed as published by that platform in resources like Books in Print.
The only real implication for you is if you want to distribute that particular edition outside of the publishing platform’s channels. For example, I create separate editions for Smashwords, Amazon’s KDP, and Barnes & Noble’s PubIt with unique ISBNs from each platform. The only difference is a line in the copyright notice that reads “Smashwords Edition” or “Amazon KDP Edition,” etc. For a book published on Smashwords, they’re listed as the publisher of record for that particular edition, while my micropress, Corvidae Books, is listed as the publisher of record. I’m still the author, and Smashwords doesn’t own the content of the book, but I could get in trouble if I tried to sell the Smashwords edition on a site like Drive-Thru Fiction or Kobo.
* * *
I hope that you’ve found this information useful. As indie authors, we’re also entrepreneurs. We need to inform ourselves about every aspect of publishing, from writing to editing, marketing to legal concerns. I’m by no means an expert, and the sites below were very helpful in my research for this post.
Resources for Further Reading:
US Copyright Office
Huffington Post Interview with IP Lawyer Bernard Starr
Stanford’s Overview of Copyright and Fair Use
Jane Friedman on Permissions
Robin Ruel on the Dos and Don’ts of Using Song Titles
Chilling Effects’ FAQ on Fan Fiction
Wikipedia on Legal Issues with Fan Fiction
“Fair Use for Speculative Fiction Writers” by John Savage