How to Defend Your Work From Copyright Infringement

Part I of this feature covered copyright concerns when it comes to using others’ work. Today, we’ve got copyrights tips to help you protect work of your own. We know we covered this part yesterday, but it’s worth repeating: Know what is copyrightable. Simply put: A copyright grants commercial rights to the owner of an “original work of authorship” that appears in a “fixed form.” This includes everything from pieces of writing and songs to plays, images, and movies — even to architecture and software. The purpose of the copyright is to grant the owner the sole right to profit financially from all uses of the work. Now, on to the essentials of guarding your copyright.*

Ideas aren’t copyrightable
Let’s say you have a great idea for an article that you share with a friend — maybe you even put it into an email to him. Then, he uses the idea to sell the very same story to a national publication, netting himself a fancy byline and a juicy fee for his trouble — not to mention making it impossible for you to sell the same idea to another publication. Copyright violation? Nope. Your original idea doesn’t constitute a “work of authorship” in a “fixed” form. Even writing it down in that email doesn’t prohibit anyone else from using the idea. The three sentences in your email are copyrightable, since they’re “original” and “fixed.” But that doesn’t give you the rights to the work your friend created, based on your idea. That’s his “original” work in his “fixed” form. Unfortunately, there’s nothing you can do to recoup damages from him, other than cross him off your list of friends and warn other writer colleagues about his nasty habits.

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Know what rights you are selling
Freelance writing contracts used to be pretty simple. You could grant First North American Serial Rights, which gave a publication first shot at running your story in its print edition. After that, you retained all subsequent rights. Or you did Work Made For Hire, in which case the publication owned your work wholesale, and you could do nothing further with it. The advent of digital media has led to myriad new ways to distribute content, most notably through Web sites and digital collections like those found on CDs. At first, some publications acted as if their purchase of your story for their print edition gave them the right to also make it available online and in other places, such as a digital archive. Eventually, the courts affirmed that that was not the case, most notably in the landmark 2001 Supreme Court decision in Tasini et al v. The New York Times et al, a case initiated by the National Writers Union. The decision established that writers own the rights to electronic versions of their work. Publications responded by rewriting their contracts. Many now request rights to any possible use they can imagine down the line, such as perpetual inclusion on their Web sites, inclusion in an anthology, or inclusion in a movie. “Whenever possible, writers should insist on keeping everything they can,” says Jessica Litman, professor of copyright and Internet law at The University of Michigan Law School. Depending on how much leverage you have, consider pushing back and granting the minimum number of rights.

Register your work
The requirements around registration are another source of confusion for writers. On the one hand, you don’t need to register your work to own the copyright to it: According to the law, you own the copyright at the moment of creation. On the other hand, registering your work is a prerequisite to bringing legal action against an infringer. The timing of your registration is equally important. How soon you register your work will impact how much you can recoup. Register within three months of publication or before an infringement (whichever is later), and you’re entitled to statutory damages and lawyers’ fees, in addition to any money the infringer earned through the use of your work. Register after three months or after the infringement (also whichever is later), and, even if you find an infringer, you can recoup their financial gain, but nothing else.

It might sound like a hassle to register each article you produce, but you can save time and money by bundling a group of articles and submitting them in a single batch, all for the $45 fee the Copyright Office charges per filing. Make a practice of doing this at least once every three months. “For $180 [a year], it’s a lot of protection,” says Anthony Elia, a New York publishing attorney and co-author of Author Law A to Z. “It makes the difference between being able to proceed in court and the case not being economically viable in many cases.”

Instructions on how to register your copyright can be found on the U.S. Copyright Office Web site. Erik Sherman, a freelance writer and former chair of the Contracts Committee of the American Society of Journalists and Authors, also has a handy cheat sheet on copyright registration on his WriterBiz blog.

Find online infringers and deal with them
If you want to ensure others aren’t using your stories without your permission, perform a periodic Internet search for your byline. You’ll be surprised where your pieces might turn up. Several years ago, freelance writer Mary Beth Klatt discovered that a restaurant Web site was featuring an article she had written for the Chicago Tribune about a chain of local taverns. She sent them an invoice, and after she showed them proof of her copyright registration, the Web site paid. But it wasn’t easy, and the outlet balked at first. “You have to be aggressive, and you have to be willing to go the distance,” Klatt says.

Billing infringers isn’t your only option, though. If you aren’t getting very far with the owners of the Web site itself, you can also contact the Web site’s ISP and make a “DMCA takedown” request. The procedure is named for the 1998 Digital Millenium Copyright Act, which amended federal copyright law and struck a compromise with ISPs, who were concerned about being held liable for the activities of the entities using their services. The law says ISPs won’t be held liable for copyright infringements made by Web sites they host as long as they remove the material upon being notified of an infringement. So if a Web site is ignoring you, the ISP will likely respond swiftly. You can view an example of a takedown notice, and the Copyright Office maintains (sometimes referred to as DMCA agents) to whom you can send a takedown notice.

You can also choose to be friendly about the infringement. If a blogger has reprinted your article for the purpose of furthering discussion around it, for example, consider simply asking them to link to your article instead of reprinting the whole thing. “It’s worth distinguishing between someone who’s adding commentary around the piece, and people who are taking the content and throwing ads around it, hoping to make money around the work,” says Wendy Seltzer, a fellow at the Harvard-based Berkman Center for Internet & Society.

Consider using a Creative Commons License
Traditional copyright licenses were fairly restrictive. Either you gave someone a license to profit commercially from your work, or you gave them nothing. Tech innovators saw the limitations in these rules. There was no easy way to give someone partial rights. Enter the Creative Commons. Founded in 2001, this nonprofit organization created in a new set of licenses that allows the owners of creative works to provide limited permissions that allow others to use their work without making special requests. For example, a “Noncommercial” license automatically gives others the right to re-use your work as much as they like as long as they aren’t making any money off it. A “No Derivative Works” license gives people the right to use your work as long as they don’t modify it. You can mix and match to accord others exactly the rights you’re willing to give up. For more, see the Creative Commons Web site.

To learn more about copyright issues addressed here, check out What Works Are Protected? and What Is Not Protected by Copyright? on the U.S. Government Copyright Office’s Web site. (And don’t worry, it’s written in plain English.)

*Since we’re talking law, we must make clear: This article does not constitute legal advice, but provides tips to get you started. Take the time to educate yourself in depth. If you have concerns stemming from anything you’re working on, consult a lawyer.

E.B. Boyd is a freelance writer based in San Francisco.