NOTE: I am an attorney, but nothing in this article should be read as specific legal advice. While the information in this article is accurate to the best of the author’s knowledge and belief at the time of publication, laws and regulations change frequently and individual circumstances vary. Please consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.
There are many articles and books on how to file copyright registrations. However, most of them seem to go into a lot of unnecessary depth and/or off on extended explanatory or historical tangents. Which is understandable: Copyright law is pretty complicated, and it’s also very interesting to the sort of person who writes such books and articles. I am the king of unnecessary depth and going off on tangents, and I am casting no aspersions.
But, I thought it might be nice to have a really simple, streamlined checklist for copyrighting an e-book comprising original authorship. So here it is. If you follow these steps, you should be able to easily file a copyright registration for a single work of written fiction or nonfiction written solely by you.
Do not use this list for ANYTHING other than a single work of written fiction or nonfiction written solely by you! (Scripts, by the way, are not works of written fiction or nonfiction for purposes of the copyright law – they are “dramatic works.” If you’re registering a script, this list is not appropriate.) Also, if the work has previously been published in print or in some other work, you should not use this list.
All caveats herein notwithstanding, the Copyright Office’s website is reasonably easy to use, and a person of reasonable intelligence can most likely figure out how to register most kinds of works with the instructions on the site and possibly a little Googling. I am not trying to dissuade such persons. I am only saying that the second you diverge from the parameters I set forth, you can no longer just follow the steps below as I lay them out.
Okay, here we go!
So, first, to get it over with: I wrote a book. It’s called My Mother Had Me Tested! and it’s a collection of funny mad science/geek-related short stories. Please have a look. If you think you might enjoy it, please read the free sample. If you still think you might enjoy it, please buy it. Here’s the link: http://amzn.com/B00WFV3YZU
Now that the plug is done – and I would never suggest that you should buy my book to make the rest of this post easier to follow, no way, not for a minute – I’m going to go over some of the potential legal issues involved with the publication of my book, My Mother Had Me Tested!. (Okay, I’ll stop now. From here on out it’s just MMHMT, and no more links. Promise. 🙂 )
Also, please keep in mind that nothing in this post is intended to be legal advice. I am reviewing my own work and pointing out generally interesting issues regarding it. My goal is not to provide specific answers to legal questions, but show examples of how one might approach these issues, and help you to be more aware of the potential for liability which your own creative endeavors might create. Always consult an attorney licensed in your jurisdiction and familiar with the relevant law *ahem* before making legal decisions.
On with the review!
ISSUE ONE: COVER ELEMENTS
This one’s easy. I licensed the cover illustration from an online stock photo company called CanStockPhoto. They have a required copyright disclaimer: I included it. The font I used I found online and, after review, I decided that my usage of it for this purpose was acceptable. (Digital font files, by the way, can be copyrighted. Generally speaking, type itself cannot.) There’s no visible person, actual or not, so I don’t have to worry about a likeness release. (More about use of likeness below.) If there were, I’d need one or need to make sure the person I licensed the photo from had one. Stock Photo sites usually make this clear – if it’s marked “editorial,” you probably shouldn’t use it for commercial purposes. If it’s not, it’s probably released, but you should still check. If you commission a cover photo or illustration, make sure your artist provides a likeness release as well as a copyright license if necessary.
Finally, I made the cover myself, so I didn’t have to worry about the copyright on the assembled elements. If I’d had an artist do it for me, I’d have needed a copyright license, but I didn’t, so I didn’t. Next question!
One of the most common questions related to intellectual property is, “If I don’t charge for (some infringing use like copying characters or whatever) it’s okay, right?”
No, it is not okay.
Here’s an easy way to think about whether giving things away is going to help you when you’re using somebody else’s intellectual property:
Mostly, whether or not you made any money is relevant to calculating damages* and if you’re calculating damages it means YOU’VE ALREADY LOST THE CASE. So just ask yourself: “Do I want to be on the losing side of a case filed by a multbillion-dollar company?” Then proceed accordingly.
*It can be relevant to a Fair Use defense, but again, that’s a defense. If you’re using a defense, it means you have already conceded that your use was, absent the defense, infringing. That’s not a good place to be when, again, your opponent may be a multibillion-dollar company which spends more every year on coffee for lawyers than you’ll make in your whole life.
This question comes up all the time, and most (non-lawyer) people seem to use the terms almost interchangeably. Or, at the very least, they use “copyright infringement” when they mean “trademark infringement.” (The reverse is much rarer.)
Copyrights and trademarks, generally, have nothing to do with each other. It’s possible to infringe a trademark in a copyrighted artwork, and it’s possible to infringe a copyrighted artwork in the creation of a trademark, but either a use (of either) is infringing, or it isn’t. What exactly the use is is not relevant to whether a copyright or a trademark is being infringed. It might be relevant to Fair Use defenses or damages, but not to the question most people are worried about, which is “Can I do this without infringing someone else’s rights in the first place?”
Trademarks are used to identify the source of a good or service. If you buy something with a Mickey Mouse logo on it, what’s really protected is the consumer’s knowledge that that product either comes from Disney, or from a licensee of Disney.
Copyrights are used to protect artistic creation. You can’t draw your own picture of Mickey Mouse and do whatever you want with it, because Mickey Mouse as an artistic creation is copyrighted.
I used Der Maus as an example because he’s a really good one of how the two things can be intertwined. Eventually, theoretically, the copyright on Mickey Mouse will expire, and people will be able to use him as an element in artistic creations. (This is called “entering the public domain.”) However, as long as Disney uses him to identify the source of goods and services, the trademark will endure. (Trademarks don’t expire: they lapse when the seller of the good or service stops using them for a protracted period of time.)
Another really good example is Bram Stoker’s famous creation “Dracula.” Dracula, the novel, is out of copyright. Anybody who wants to can write stories about Dracula. (They can’t infringe on the copyrights of the later movies, though.) However, suppose that the estate had filed a trademark application for “Dracula” brand opera capes. As long as the estate sells (or licenses the mark for sales of) opera capes, nobody else can make Dracula opera capes.
“Aha!” I hear you cry. “What if I get the trademark ‘Dracula’ for publishing books? Then nobody else can publish Dracula books!” Clever! But no. The Trademark Office will not allow the registration of marks which are functional or merely descriptive. I’m allowed to write about Dracula. I need to be able to identify the character of the book. So such a trademark is both functional and descriptive, and would not be allowed.
Sound complicated? It is. That’s why intellectual property lawyers exist. 🙂 But I hope that this brief explanation will help you understand the basic difference between the two and why the fact that there is no trademark doesn’t mean there is no copyright or vice versa.