Love Beside the Windmill: Know Your Copyright Law!

Writers, this article exists in two parts, like a lavish meal with a rich dessert. The meal is healthy and good for you, but you may find it tedious to finish every bit. Read carefully, though, and you’ll earn dessert.


Part I — The Main Course
Copyright: So Simple It’s Confusing.

CopyrightRedCopyrights are exclusive rights owned by the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or how they are fixed on the page.

Knowledge of copyright is the author’s responsibility; you should not ignore this important aspect of your writing life. This knowledge is more important than your knowledge of grammar, submission guidelines or how to spell.

Here are three things you need to know about copyright.

1. When copyright exists
Copyright is created in a work once it is fixed into a tangible medium of expression. That means when you hit “save” on your computer, or finish hand-writing or typing your poem or novel, or post your blog or your comments anywhere at all, your copyright in your own written word exists.

The U.S. Copyright Office puts it this way:

Copyright law protects a work from the time it is created in a fixed form. From the moment it is set in a print or electronic manuscript, a sound recording, a computer software program, or other such concrete medium, the copyright becomes the property of the author who created it. Only the author or those deriving rights from the author can rightfully claim copyright.

2. The copyright notice
Putting a copyright notice on your work is only an announcement of your ownership; the notice does not change your copyright. Many authorities now say the notice is not necessary. Still, the notice on your blog, for example, reminds people who may not know the law that you own the rights to reproduce your own words and they cannot be copied without your permission.

The copyright notice consists of three elements:

1. the word or symbol for copyright:

Copyright
or the abbreviation Copyr.
or the symbol ( c ).

2. the name of the owner

3. the year of publication.

So a copyright notice may read Copyright 1983 Gloria Writer or (c) Gloria Writer, 1983.

Until 1989, works had to contain a valid copyright notice to receive protection under U.S. copyright law, but no longer.

3. How to register your copyright
If you want– or need– to enforce your copyright in a court, you must have registered the copyright with the U.S. Copyright Office. Registration is your best protection in the event of a dispute over who owns what you wrote. Since you cannot know if someone is going to steal your work, requiring you to sue them for damages or to correct the record, you should register published work.

Register the copyright by:

1. Filling out the required form, obtained from the U.S. Copyright Office http://www.copyright.gov/

2. Sending the form with a fee and 1 or 2 copies of the published work to the Copyright Office (As of June, 2015, the fee for a book by a single author is $35 to $55. See http://copyright.gov/about/fees.html)

Only work registered with the U.S. Copyright Office is registered; there are no alternatives. “Poor man’s copyright”– mailing your work to yourself and keeping the envelope unopened– proves nothing; you might have mailed the envelope unsealed and inserted the work at a later date.

*   *   *

That’s it; now you know the most important things about copyright. But here are some additional details on various topics within the body of information about copyright that might help you understand the procedure.

Getting reliable information
Scams abound. If you have only a vague idea of what copyright law means to you, go immediately to “Writer Beware” at http://www.sfwa.org, the website of the Science Fiction Writers Association. No, you don’t have to write science fiction. This site has the most succinct, easily accessible and clearest information on copyright I’ve found.
https://www.sfwa.org/other-resources/for-authors/writer-beware/copyright/

The page clearly explains what copyright is, when and why you should register your copyright in published work, and the most common myths of copyright. (I have heard at least one of these myths from aspiring writers every time I have given a talk on writing.)

The Writer Beware site notes:

Unpublished manuscripts: you do not need to register this work; theft is highly unlikely.
Published short stories and articles: registration is a good idea, though the magazine’s copyright may cover your writing.
Published book-length manuscripts: registration is essential.

Recently I discovered that even trade publishers may no longer register copyright; small presses often don’t want to spend the money; and self-publication means it’s your job. So, no matter who is publishing your work, ask if the copyright is registered and then look on the copyright office website to see if registration has been completed.

What if you don’t register and discover that your published work has been stolen? You can register within five years of initial publication and you can still sue, though your damages may be limited.

Does all of this seem complicated and boring? Do you lock your house at night? Your car? You can always buy a new TV set or Chevrolet. Respect your work enough to put at least as much effort into protecting the work of your mind and heart.

Your rights
When you enter into a publishing agreement, remember that you are granting the publisher permission to exploit– that is, to publish and distribute for profit– your work. You have granted that publisher a portion of your copyrights for a specific period of time. You do not lose them, but you are allowing someone else to use them for a specific and limited time. During that time, the publisher intends to make money from your work, so the publisher’s interests may not always coincide with yours. Therefore you need to understand your contract and what it does to your rights. You should not publish a book without signing a contract.

There is one exception to the principle that you own what you write. As the U.S. Copyright office puts it:

There is, however, an exception to this principle: “works made for hire.” If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual.

The concept of “work for hire” can be complicated, but know two things: you do not own what you write for hire, and you cannot profit from it. When I knew less than I know now, I once signed a work for hire agreement. I find it frustrating to know that no matter how many copies of that book are sold, I will never make a dime from it beyond what I was paid in the contract– nor can I use any of its contents in any other context.

Copyright notice
A person’s creation should always be absolutely attributed to that person, for whatever profit, financial or otherwise, accrues. But the idea that a work belongs exclusively to its creator is being steadily eroded. Some folks think it’s perfectly all right to take a poem written by someone else and rewrite it, presenting the resulting piece as their own. Others think that if it’s on the Internet, the work is not protected. Including the copyright notice helps warn these folks.

However, do not put this notice on your work when submitting it for publication. Agents and editors who see this notice on unpublished work will think you are either ignorant of the law or don’t trust them– not the impression you want to give.

Registering copyright
You might lose your copyright not because someone is unscrupulous, but for other reasons. Ignorance can be destructive.

A publisher agrees to print your book of poems. You are ecstatic. You do not sign a contract; after all, we should trust one another and he’s putting his time and effort into creating your book. If the publisher offers a contract, you may be so excited you don’t read it, or you skip over anything that’s not clear.

Small presses sometimes operate with little income, or use the money they make at a paying job to help support their habit of publishing the work of new writers. They try to sell the work but rarely does a book published by a small press make back its expenses, let alone a profit. They may not know how to copyright your work, or they may be too busy, or think it’s too expensive.

Moreover, the Internet now sports all kinds of agencies who offer to copyright your work, or register copyright, for a fee, always considerably inflated from what you need to pay.

The warning published by Writer Beware about these folks is blunt:

In the USA, there are a number of online services that will register copyright for you with the US Copyright Office, for a fee. You can even purchase software that provides you with addresses and copyright forms.
Don’t waste your money. It isn’t difficult to register copyright yourself, and it will cost you a good deal less than the services (currently, registration costs between $35 and $65, depending on whether you register online or on paper). For freelancers and others wanting to register more than one piece or work, the US Copyright Office offers a multiple-registration option.

The benefits of copyright registration

Chicago Manual of StyleThe main reference work for every serious publisher in the country is, or should be, The Chicago Manual of Style. It’s now available online, and the publisher even offers a free trial period at http://www.chicagomanualofstyle.org.

The most recent edition (16th) of The Chicago Manual of Style includes this passage:

4.49 Benefits of registration
Registration is not necessary to obtain a copyright (which exists in the work from the moment it is fixed in tangible form; see 4.3) or to ensure its validity. However, the prudent course is to register copyright because of the added protection registration affords. In cases of infringement, registration is a prerequisite to bringing suit unless the work was written by a non-US author and first published abroad. Registering at the time of publication avoids a scramble to register later if infringement is discovered. Moreover, if registration has been made within three months of publication, or before an infringement begins, the copyright owner, instead of going through the difficulties of proving actual damages, can sue for “statutory damages” (in effect, an award of damages based on equity rather than on proof of loss) and, most significantly, is eligible to be reimbursed for attorney’s fees. Publishers fearing prepublication piracy of books in development should also consider the “preregistration” procedure at the website of the United States Copyright Office.

That’s the importance of copyright registration: if it’s not done, and your work is stolen, you will have to spend considerably more money to defend your legal copyright, and you’ll have to pay attorney fees yourself.

Traditionally, registering an author’s copyright was part of the publisher’s job as protection for both the author and the publisher against copyright infringement, where someone copies another writer’s work and sells it.

However, I have recently learned that many publishers no longer consider registration of copyright part of their duties. I learned this by discovering that several of my copyrights had not been registered.

You may ask “Who’d want to steal my poetry?” The answers are various. I’ve heard of instances where a candidate for an advanced degree in Creative Writing presented an entire work written by someone else as original, received the appropriate degree, and was hired to teach on the basis of it. Even when the scam was revealed, the offending professor kept the job, and the author received no compensation.

Part II — Dessert
Copyright Infringement: My Story

When I first began publishing my work, even the smaller publishers like Fulcrum, High Plains Press and Barn Owl understood registration of copyright to be part of their responsibility. In fact, when my copyright was infringed upon, one of the smallest of those presses– Barn Owl Books– found me a good copyright lawyer and joined me in bringing suit. And we won, but we might not have if the copyright hadn’t been registered. Here’s my story.

As a writer, I have kept journals since I was nine years old. In the 1980s, I began to read a lot of stories in environmental magazines suggesting that one family ranches would be driven out of existence by “agri-business,” huge multinational corporations. I decided to record the work we did on the ranch, so that if one-family ranches vanished, a record would exist so we could recreate them at some future time. At worst, my record would be historical. I began collecting material from my journal to write a book on how ranching is done. By the time I’d read through about 20 years of journals, I was enjoying the journal form, and remembering how many types of journals have been published, so I put together some sample months from my journals, and, began sending those samples, one by one, to publishers .

Months later, after my book had been rejected 26 times, I noticed a listing for Barn Owl Books in Berkeley, CA. I wasn’t hopeful that a publisher in Berkeley would be interested in my book, but the “barn owl” suggested an interest in the rural, so I submitted the samples for the 27th time. The publisher turned out to be a woman who ran a publishing company by herself and had published only one other book at that time. But she loved my journal, and she and I worked on editing it for three years before it was finally published in 1987.

Linda signs WINDBREAK 1987--9-11 - Copy

Autographing my first copies of Windbreak at the publication celebration in California, 1987.


Windbreak: A Woman Rancher on the Northern Plains is a daily journal covering one year on the ranch and was favorably reviewed by the New York Times Book Review. But the most enjoyable thing about it has been the responses it has generated from people all over the country. Old ranchers have written to me, telling me to hang on, because it’s a wonderful life; a young woman wrote to tell me of a cheaper kind of long underwear; a goat farmer sent me some homemade cheese; a North Dakota woman wrote to tell me she has kept a similar journal for 50 years. A book reviewer in California said she didn’t even LIKE cows, but after she read my book, she heard about a blizzard out here and found herself saying to her husband, “I wonder if Linda’s cows are all right.” Suddenly I have friends all over the country. Yesterday, 28 years after the book was first published, a man with a Southern accent called to tell me he had just read the book, and how wonderful it was; “I had no idea how hard it is to be a rancher,” he said, and promised to loan the book to a lot of other folks who would enjoy it.

The year after the book was published, I was named as Writer of the Year by the South Dakota Council of Teachers of English, and inducted into the South Dakota Hall of Fame in honor of my writing. All of this was the good news.

Among the many letters I received about my book, however, was an anonymously sent copy of a letter a reader had sent to Parris Afton Bonds, the author of a romance novel titled That McKenna Woman. The letter said, in part, “I very much resent paying $2.75 for a book that I assume is original material, only to find that so many parts– the best parts in fact– are in no way original.” The letter explained that the “best parts” she referred to were taken from my book Windbreak. I later concluded that the letter alerting me may have come from a disgruntled friend of the author who knew about the theft and chose this way of informing me.

I bought a copy of Bonds’s book, and soon found more than 70 passages which echoed my own words. My anger increased as I saw that my published account of my life with my beloved husband had been used to give credibility to a trashy romance novel about a Hollywood actress, convicted on a drug-dealing charge, who is sentenced to six months labor on a cattle ranch. My husband, George, tried to appeal to my sense of humor by complaining that the sex scenes were unrealistic, since we were always too busy to make love beside the windmill!

I later learned that the author had given a writing workshop in Wyoming. Likely she bought my book there, since I had given workshops for the same group.

IMG_3189That fall, despite the death of my husband after a long illness, I went ahead with the lawsuit. With the help of my publisher, I brought charges of copyright infringement against the writer and Silhouette/Harlequin, one of the biggest publishers of romances. The romance writer had been paid $10,000 each for three romance novels; in the course of the lawsuit, I obtained copies of the two which had been published, and a manuscript copy of the third, which never appeared in print. All three contained quotations from my book. She made far more money for her books than I did from mine.

I won the lawsuit, but the expenses cost more than the money I was awarded by the court, and also considerably less than the romance writer made from my work. Still, the publisher recalled the first novel in the series, shredded the second before it left the warehouse, and cancelled publication of the third in the series. The author continued to advertise the books on her website for some years after the judgment, though the titles have finally been removed.

One clause in the settlement agreement was particularly galling. The publisher offered me more money if I agreed never to speak about the lawsuit. But I’m a writer and teacher; I thought it was important to be able to educate other people about the ugly realities of creative theft. I was, however, enjoined by the court from using the term “plagiarism.” I can only say that the author committed “copyright infringement.”

At the conclusion of the lawsuit, we issued a press release including some of the relevant passages and showing just how my copyrights had been infringed:

Windbreak, p. 26: A true Hunter’s Moon tonight—red-gold near the horizon, then shrinking to a silver disc as it rose.

That McKenna Woman, P. 40: “It was a true hunter’s moon tonight—red-gold near the horizon, then shrinking to a silver dollar as it rose.”

*  *  *

Windbreak, p. 126: “The women talk about who had babies and who died. The men talk about wetter or drier years and worse winters.”

That McKenna Woman, p. 107: “The women talked about who had had babies and who had died. The men discussed wetter or drier years, and worse winters.”

*  *  *

Windbreak, p. 72-3: “Why do we do this? No one ranches for the money, and it’s not that we’re all masochists. It’s as though we have a covenant with nature, that we’re bound to see it through, to figure out a way, every year, in every emergency, to survive. It’s less like a battle than a marriage. The problems perhaps serve to enhance our feeling of accomplishment when we succeed, and the more complex or dangerous the situation, the greater the exhilaration when we live through it.”

That McKenna Woman, p. 66: “Why do we do it? he asked himself. Certainly no one ranches for the money. It wasn’t as though he enjoyed suffering and hardship. It was as though he was honor bound to see this through every season, every crisis. When he succeeded, he felt as if he had accomplished something. And the more difficult or dangerous the circumstance, the greater the exhilaration when it was all over and he had come out triumphant.”

*  *  *

So: writers, be persistent in working to get your work published. But when you have interest from a publisher, rein in your enthusiasm until you are sure you understand what the contract offers.

Once your book is in print, get the proper form from the U.S. Copyright Office, fill it out, pay the fee and send the required copies to register your copyright. In doing so, you are not only defending your own rights to your work throughout your lifetime, but protecting a valuable asset for your heirs.

Linda M. Hasselstrom
Windbreak House Writing Retreats
Hermosa, South Dakota

© 2015, Linda M. Hasselstrom

# # #

For more information:

U.S. Copyright Office
http://www.copyright.gov/
The website of the U.S. Copyright Office offers all the information you need to register copyright, phone numbers to call for help, and a contact form; I have not used it, so I don’t know how quickly you could expect a response. The site has a list of frequently asked questions, and offers informative publications and tutorials to download. The website may seem overwhelming at first but stick with it and you’ll be able to narrow your focus to the one form you need to fill out for your particular copyright.
See http://copyright.gov/about/fees.html for information about current fees.

Beware of Copyright Office Imitations
Note that http://www.copyrightregistry-online-form.com and other similar websites are not the US Government’s site, though these website may show up at the top of an online search and may look very official with eagle emblems or other governmental words and logos. They are private companies that claim they can simplify the copyright registration process for an additional fee. The SFWA.org website puts them in the “unnecessary” category. Look for “.gov” in a website name to know whether you’re on the US government site or a private company’s site.

Science Fiction Writers Association
https://www.sfwa.org/
https://www.sfwa.org/other-resources/for-authors/writer-beware/
https://www.sfwa.org/other-resources/for-authors/writer-beware/copyright/
Another great writing resource is the website of the Science Fiction Writers Association. No, you don’t have to write science fiction to use this website, though a membership fee or donation will help keep the website up and running. While you’re there reading about copyright, explore some of the other information offered: “Alerts for Writers” names unscrupulous agencies that prey on writers, as does the “Thumbs Down Agencies List and Publishers List”. The SFWA website discusses literary agencies, editors, contests, self-publishing– virtually any topic that might be of concern to a writer who wishes to publish– and the language is clear. (Here’s the assessment of a press that held fraudulent contests: “Its Terms and Conditions, however, stink.”) I recommend keeping a shortcut to this site on your desktop for a check on anything puzzling.

The Chicago Manual of Style
http://www.chicagomanualofstyle.org/home.html
The main reference work for every serious publisher– buy the book or buy an online subscription. A free trial is available online and you can borrow a copy of the book from your local library.

Here are some other sources of copyright information that seem legitimate:

http://www.plagiarismtoday.com

http://www.copylaw.com (see copyright myths)

http://www.templetons.com (see copyright myths)

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