elf-publishing can be challenging enough; “self-lawyering” can be downright terrifying! A publisher can help you with registration requirements. They can also provide advice on whether you can mention a well-known real or fictional character in your work. But what can you do if you’re on your own, and copyright law is Do-It-Yourself (DIY)?
Get advice from a lawyer who also writes.
From online rights to fair use, this article will give you a quick overview of all the legal stuff you need to know and a wealth of links and references for further reading.
You might still want to consult a lawyer after reading this article (I suggest you do), but at least you’ll know what questions to ask. More importantly, you’ll be writing and self-publishing your work fully aware of your rights as well as your obligations to others.
“Copyright vests in your work upon creation; no registration is necessary.”
#1. Cutting Through Red Tape
Automatic copyright, value of registration, international copyright protection, digital rights
Perhaps you’ve heard it before: You don’t need to do anything for your work to be protected by copyright. Copyright vests in your work upon creation; no registration is necessary.
It’s absolutely true that from the moment you put your words on paper, your work is protected by copyright. Should you still register it?
It depends on where you are and where you think any lawsuit may arise. In the United States, registration is a powerful tool in case you end up in a lawsuit. If you are sued by someone who claims you’ve infringed their work, your registration (if done before or within 5 years of publication) is considered prima facie, evidence of the validity of your copyright, and therefore, constitutes an important piece of your defense.
If you are suing someone who you think is infringing your copyright, registration is required before you can file a lawsuit for your claim. It is also required for you to collect attorney’s fees and statutory damages.
Other reasons for copyright registration would be: it provides a public record of your copyright and allows you to record your work with the U.S. Customs to prevent importation of infringing work.
By the way, have you ever heard of the tip of mailing your manuscript to yourself, then keeping the envelope sealed as possible evidence of your work’s originality? Be advised that the U.S. Copyright Office cautions that this so-called “poor man’s copyright” is “not a substitute for registration.” Your postmarked copy of your work would not confer the advantages of registration mentioned above, although it may still be evidence of originality.
That said, not all countries have copyright registration offices. Australia, Germany, the United Kingdom, and Israel, to name a few, do not. If your work will primarily be distributed in these countries, you may not wish to register your copyright in the United States.
Whether you register your work or not, rest assured that copyright protection over your creation extends to most of the globe. One hundred sixty-five nations are parties to the Berne Convention on Copyright. Requirements for bringing a lawsuit for infringement, on the other hand, may vary from country to country. Limitations to copyright, e.g., fair use or fair dealing (discussed below), may also vary from one nation to the next. But wherever you may be, rest assured that once you create it, your work is covered by copyright in these countries.
While copyright protects your work pretty much around the world, the Internet is a slightly different arena. Your e-book is protected by Digital Rights Management (DRM) to prevent it from illegal copying onto other devices, for example. DRM has been controversial, and at least one publisher has decided to abandon DRM. Having DRM enables you to control access of readers to your work. This means you may protect your revenue stream better; but at the same time, you may lose a greater market of potential readers and sacrifice more widespread appreciation of your book.
You can consider open access as an alternative to DRM, which is explained later in this article.
“The test in court is whether the character is ‘distinctively delineated’ rather than merely a ‘character type.’”
#2. Making Your Mark
Copyright and trademarks for characters and fictional worlds
Characters and worlds can be protected by copyright, but protection is not automatic. In general, characters and worlds themselves (their traits, their appearance, etc.) are ideas rather than works. Copyright protects works as expressions of ideas; the protection does not cover the ideas themselves.
The text (and images) you use to make your character or world come alive on page would be protected by copyright. But the character or world itself, its personality and nuances, may not be protected.
However, if you can describe your character or world so well and ensure that it is clearly distinctive and original, it may be transmogrified from an idea into a copyrightable work. The test in court is whether the character is “distinctively delineated” rather than merely a “character type.” (See legal articles cited below under “Further Reading” for details.)
It may also be possible to protect a character or world by trademark rather than copyright. Trademark relates specifically to commerce and branding, so it’s a serious option if you intend to use or are using your fictional characters or worlds for commercial or marketing purposes. Your character or world should constitute a brand, which consumers identify with a source (you, as author). For example, think of Harry Potter, and you immediately think not just of the character, but also the book series, the movies, toys and figurines, and J.K. Rowling. Everyone identifies Harry Potter with the author and her books. Given this strong association, Harry Potter is easily registered and recognized as a trademark.
Unlike copyright, trademark is not automatic. You need to register it and prove that your character or world is “sufficiently well-known” and that it is associated with you as its author. The upside to trademarks is that they can confer indefinite protection (if managed properly), while copyright is only valid for the lifetime of the author plus fifty or seventy years (depending on the year of creation) after the author’s death.
“In using real people in your story, you should be aware of issues of privacy and defamation rather than copyright.”
#3. Fact or Fiction
When it's fine to mention real people and real brands in your story without permission, and when it's not
Everyone knows that historical figures often appear in fiction. Just think of all the books about King Henry VIII and his wives! But what about people who are still alive or celebrities and politicians who may have a lot to lose if they were represented in a bad light in a fictional story?
The use of real persons in fiction is generally fine. In fact, it has been taken to extremes in the genre “real person fiction” or RPF, where writers use celebrities as their main characters. These works have been protected against slander and libel charges by the authors’ disclaimers that the stories are fictional, although they refer to real people.
Obviously, real-life people are not protected by copyright. In some cases, their names may be protected by trademark (think Heinz for ketchup). In using real people in your story, you should be aware of issues of privacy and defamation rather than copyright.
If you share private information about the real person in your story, such as her home address or his social security number, then you would be disclosing private information.
Defamation would generally not be a concern if it is clear that your use of the real person is fictional and that you are not ascribing real (and negative) acts to that person.
What about mentioning real life brands and businesses (e.g., restaurants, hotels) in your fiction? Again, all readers know this is common practice, yet many writers still ask if this is ok. In general, merely mentioning a trademark in your fiction does not qualify as infringement. It would fall under “fair use” of trademarks, specifically nominative use. So feel free to write that your character drives an Aston Martin and uses an iPhone. Your use of these trademarks does not mean that you are attempting to capitalize on the goodwill associated with these brands to sell your work or that you’re trying to mislead consumers as to the source of the work. (No one will think Aston Martin or Apple wrote the story!) If anything, your use of these trademarks may even work to the benefit of their owners as free advertising.
Allowable use of real-life people and brands is clearer if you are writing nonfiction, such as in journalistic reports and articles or in book reviews. In these articles, it is often clear that the mention of real people or brands is nominative and only for the purpose of stating a fact or making a criticism.
“What constitutes fair use is determined by a court of law.”
#4. Borrowing or Stealing (Fair Use or Infringement)
When it's fine to use other people’s fictional characters and worlds in your books without permission, and when it's not
I’ve mentioned nominative use as an allowable use of trademarks in fiction. If your story merely names trademarked characters and worlds to denote those characters and worlds themselves, then your use is nominative. Trademark infringement would arise if you used those characters and worlds to confuse the reader as to the source of the work.
What about for non-trademarked characters and worlds, and you’re not sure if they are protected by copyright? You can use them only to the extent that your use falls within fair use (and hence not considered copyright infringement). What constitutes fair use is determined by a court of law—and not by either the copyright owner or the copyright office. It is, therefore, hard to pin down whether a specific use is fair use in the absence of a court judgement. However, some guiding principles include:
- The purpose and nature of the use, whether the use is non-profit or educational
- The nature of the work being used
- The amount of the portion being used
- The effect of the use on the marketability of the original
The use of epigraphs and quotation of poetry and songs in your story may be fair use if you use only one to two lines of the copyrighted work.
Fair dealing in the United Kingdom and Australia differ somewhat from fair use, in that the specific purpose may be taken into consideration aside from the economic impact of the use.
Many uses of copyright material in works of fiction do not fall squarely within acts of fair use or dealing. For nonfiction (text for the purpose of reporting, reviewing, or criticizing), fair use and fair dealing may be easier to demonstrate. But even in these cases, make sure you don’t reproduce a greater portion of the copyrighted work than absolutely necessary, and always cite and attribute your sources.
In general, whether writing fiction or nonfiction, I advise that you seek permission from the copyright owner to quote his or her work whenever possible. If not, limit your quotes to texts that are already in the public domain (like Shakespeare!).
Fan fiction falls in a gray area of copyright and trademark and lies beyond the scope of this article. Fair use of copyrighted characters and images is yet another question and unfortunately, will also not be covered here. I’ve answered a few questions about the use of copyrighted characters and images on my free copyright advice site.
“If you’re more interested in broadening readership than in retaining control over your work, you may want to provide your work through Open Access.”
#5. Share and Share Alike
Granting open access to your work through Creative Commons
In this age of having a lot of freely available materials on the Internet, it sometimes seems that keeping something very tightly under copyright control may not be the best thing for your work. You may want your e-book read by the widest audience possible, regardless of what e-book reader or device they may be using. You may even wish friends to share and swap e-books for their book clubs.
If you’re more interested in broadening readership than in retaining control over your work, you may want to provide your work through Open Access. Consider sharing your work through a Creative Commons (CC) license. There are several types of CC licenses, ranging from the most open license, where you place your work in the public domain, to the least open license, where you prevent anyone from doing anything other than sharing the work under the same rights.
The public domain license, CC0, means that you are waiving all your rights to your work. You are allowing others to copy, distribute, sell, and modify your work without requiring them to ask your permission or to attribute authorship to you. Other types include: a license that requires users to attribute the work to you, but allows any other act; a license that does not allow others to use your work commercially; and a license that prohibits others from modifying your work or creating works that are derived from your original work. The Creative Commons website allows you to choose the right type of license for you, then creates a widget or icon that you can place on your work to stamp it with its distinctive CC license.
Your work can then be listed among other Open Access and Creative Commons licensed creations, making it easy to find and even easier to use and share.
Two things to remember about the five things you now know about copyright.
Pretty easy to remember the top five things you should know about copyright when you’re doing it yourself, right? Well, for those really tricky questions or when you’re in doubt, you should still consult a lawyer. You’re also welcome to ask me a question and get free advice on my website as well. But always remember these two fundamental principles:
- Your work is automatically protected, so you should not hesitate in enforcing your rights.
- Always respect the rights of other copyright owners.
For more helpful information, visit the following links:
Further reading on protection of fictional characters:
Celia Aurora Torres-Villanueva has a Ph.D. in molecular genetics and microbiology and a law degree. Blessed with a generous husband and three lovely, talented kids, Celia works in a renowned Australian scientific research organization, where she advises scientists on intellectual property rights. In her spare time, she likes to provide free copyright advice to writers, musicians, artists, photographers, and other creators on www.copyrightadviser.com. Follow her on Twitter @copyrightadvisr. Oh, and she likes to write as well.
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