If you write, you can't afford not to understand the basics of copyright - even if you're unpublished. And those basics might differ from what you've heard. Copyright is your legal claim to ownership of, and profit from, your work. It's what makes your work valuable in the marketplace - aside from its obvious literary merit, of course. If it weren't for copyright, anyone could sell or reproduce your writing, or incorporate elements of it into his own work, with or without your permission, with or without paying you.

United States copyright law protects writers from the unauthorized:

• Reproduction of your work
• Production of derivative works (i.e., writing a new story based on your fictional characters)
• Distribution of copies of your work to the public by sale or other means
• Public performances and/or display of your work

Fair Use

There are some limits to this protection, most notably, "fair use." Fair use doctrine, which, by the way, includes unpublished works, is a matter of continuous legal debate, but, essentially, it includes such allowable purposes as criticism, comment, news reporting, teaching (including making copies for distribution to students), scholarship and research.

While we're on the subject, the notion that there is a set number of lines from a poem, song or other literary work that can be used without permission of the author is a fallacy. Unless your contemplated use fits clearly into one of the categories listed above, don't risk it.

Obtaining a Copyright

Under U.S. law and the Berne Convention (international copyright law), your work is copyrighted from the moment it's created in a fixed form - whether on paper (handwritten or typewritten) or in an electronic file. It's really that simple! All fiction copyrights vest with the writer, with the exception of ghost-written material. As a "work for hire," ghost-written fiction is owned entirely by the person or entity that commissioned it. In addition, titles, short phrases or slogans, and story concepts and ideas aren't protected by copyright.

Benefits of Registering a Copyright

Your ownership of an unregistered copyright is every bit as legal and binding as your ownership of a registered one. However, registration establishes a public record and affords the author certain legal protections and remedies that might not otherwise be available.

Registering your copyright before your work is published, or within five years of publication, creates a legal presumption that the work belongs to you. A presumption cannot be overcome in court without compelling evidence. Further, having registered your copyright before any instance of infringement entitles you to statutory damages and attorney's fees in the event you prevail in court. If the copyright wasn't registered prior its infringement, then any award would be limited to actual damages - i.e., the amount of money the infringer made on it, with no added penalty for wrongdoing and no reimbursement for your attorney fees. In any event, you must register your copyright before you can file an infringement lawsuit.

How and When to Register

Copyright registration is easy and inexpensive and may be done at any time during the life of the copyright (normally, the author's lifetime plus 70 years). If an unpublished work is registered, it isn't necessary to register a later, published edition, although it is permissible.

If you're only going to send your manuscript to reputable publishers and agents, and even if you share it with a small critique group, you're probably safe not registering your copyright. However, if you choose to showcase your work on your web site or post excerpts to an open forum, then I strongly recommend registering beforehand.

To register a copyright, package the following three elements:

• A completed application "Form TX" (available as a fillable PDF at www.copyright.gov)
• A nonrefundable filing fee of $30, in the form of a check or money order
• A non-returnable deposit of one copy of the unpublished work being registered (for published works, two copies of the best edition are required)

And mail them to:

Library of Congress Copyright Office 101 Independence Avenue, S.E. Washington, D.C. 20559-6000

When your work is published by a conventional press, the publisher generally will handle copyright registration for you, if you haven't already registered. Authors who choose to go the self-publishing route, however, can save a little money by registering their own copyrights and foregoing that aspect of the vanity press's service.

Short story writers and poets can copyright a collection of unpublished stories or poems as one unit and for one fee, as long as the following conditions are met:

• The elements of the collection are assembled in an orderly form, under a single title (i.e., "Kelly Hess's Poetry 2004" or "Kelly Hess's Ghost Stories")
• The person claiming copyright is the same in all the elements

Copyright Notice

At one time, a copyright notice was required to protect a copyright, but this is no longer the case. However, whether you register your copyright or not, it's a good idea to display notice on copies of unpublished work that effectively leave your control - for instance, if you decide to offer an excerpt on your web site, or post work to an online newsgroup.

It probably isn't necessary to use a copyright notice when submitting work to reputable publishers and literary agents; they understand that it's cheaper to pay you for your work than it is to fight a lawsuit and/or risk their reputations. More than likely, the only thing you'll accomplish by placing a copyright notice on your submission to an editor or agent is to mark yourself out as an amateur.

If you choose to include a copyright notice on your work, the proper form of notice includes all of the following three elements:

• The symbol © (Not the word "copyright" or the abbreviated "copr."; while those forms will protect you under U.S. law, they might not protect you internationally.)
• The year (For published works, this would be the year of first publication; however, there is no definitive information as to what year should be used for unpublished works, so I always use the current year.)
• Your name

Example:

To avoid any confusion as to an unpublished work, you may want to add a notation to that effect:

The notice should appear in such a way as to give reasonable notice that copyright is claimed - such as next to the title. As long as this requirement is met, a court will give no weight to an infringer's defense of "innocent infringement" - that is, that she was unaware the work was protected.

Length of Copyright

For works created on or after January 1, 1978, copyright expires 70 years after the author's death and is not renewable. For works created jointly by multiple authors, the date of the last surviving author's death is used. Interestingly, the exception to the 70-year rule is in the case of works registered anonymously or pseudonymously: If the writer's real name does not appear in the Copyright Office records, then the copyright expires either 95 years from publication, or 120 years from creation, whichever is shorter.

International Considerations

There is no such thing as an international copyright. Protection of a literary work in any given country depends on that country's laws. However, many countries are parties to one or more international copyright conventions (such as the Berne Convention, mentioned earlier). In those countries, you can protect your work by complying with the conditions of the applicable convention. The Copyright Office offers a brochure that lists most countries and notes what conventions each is party to.

What Are All These Numbers?

It should be noted that a copyright registration number, a Library of Congress control number, and an ISBN (International Standard Book Number) are three separate items. For information on ISBNs, go to www.isbn.org, or, to learn more about Library of Congress control numbers, see http://pcn.loc.gov/pcn.

"Poor Man's Copyright"

One time-honored piece of advice to writers is that if you simply mail yourself a copy of your manuscript, then keep the unopened envelope in a safe place, the postmark will prove that you created the work prior to the date you mailed it.

I don't recommend this method. While it's true that a postmark is fairly strong evidence of the date something was mailed, I wouldn't want to be in court against an infringer with nothing but a sealed envelope and a postmark to make my case. If the infringer's attorney is the least bit intelligent, she'll point out that all I had to do was mail myself an unsealed envelope and then slip whatever I wanted into it at a later date.

In fact, if you used a computer to write your story, the markers on your hard drive showing when the file was created are probably better evidence than any postmark, because they're much harder to falsify. But don't rely on your computer as your star witness, either. We all know hard drives have been known to fry at the most inopportune times.

Copyright registration only costs $30 plus postage, and, given the fact that you can even lump several short works into one unit for purposes of the application and fee, that's an incredibly cheap way to secure binding legal protection. Isn't your hard work worth as much as 10 cups of Starbucks coffee?

Source

U.S. Copyright Office: http://www.copyright.gov

Further Reading

"Overview of the U.S. Copyright Registration Process," by attorney Larry Guffey: http://www.guffeylaw.com/copy-r.htm

"Warnings and Cautions for Writers - Copyright," by the Science Fiction & Fantasy Writers of America (lots more helpful links at the end): http://www.sfwa.org/beware/copyright.html

A relevant Question of the Month at lawandfiction.com: http://www.lawandfiction.com/law/column.4.html

"Your Copyright Provides the Legal Foundation for Making a Living as a Freelance Writer," by the National Writers Union http://www.nwu.org/docs/copyrite.htm