Copyright Laws for Authors (in Words We Can All Understand)

What a cruel and unjust joke that we creative types would have to educate ourselves on legal matters.

Yet, here we are, forced to confront this necessary evil. In order to protect your own work and avoid stepping on the rights of others, you need at least some understanding of copyright law.

This insight could mean the difference between maximizing potential earnings from your literary masterpieces and losing major distribution opportunities. It could empower you to release self-published works, confident that your cover art and book content are all on the right side of the law.

And honestly? A lot of this stuff isn’t too tough to grasp when it’s taught in clear, straightforward terms. For that, you’ve come to the right place.

You’re about to get the rundown on copyright law, including:

• What people mean by “intellectual property”
• What can and can’t be copyrighted
• What “fair use” means
• How to handle copyright infringement
• How to register your work with the U.S. Copyright Office
• What the deal is with public domain
• Why you should bother learning any of this

We’ll leave the confusing legal jargon out of it, mostly because I don’t know that much legal jargon. Sound good?

Good.

First, Let’s Get Clear on a Few Things

I’m not a copyright lawyer. That means it’s easier for me to talk about this stuff in regular-people terms rather than legalese. That’s the plus side.

However, it also means I’m not qualified to give legal advice and am not acquainted with the full depth and nuance of copyright law.

Plus, there can always be changes in these laws. I’m writing this article in April 2024. Who knows what might be different by the time you read it?

Finally, I’m speaking specifically about United States copyright law. Just so we’re all on the same page.

All this to say, the goal of this article is not to give direct advice or act as your official guide for making crucial decisions about a publishing agreement or the legality of creating something that draws on someone else’s work.

The only objective here is to clear the murky waters of copyright law enough for you to navigate and research your specific copyright questions with a better understanding of what you’re looking for.

Now that we’ve got that bit of housekeeping out of the way, let’s start sweeping away the muck.

Intellectual Property Rights for Writers

As a creative professional—or even a creative hobbyist—you can expect to hear the terms “intellectual property” and “copyright” pop up every now and then. Based on the way folks use these terms, you might get the idea that they essentially mean the same thing.

They do and they don’t. Copyright protection is a form of intellectual property protection.

So then…

What is Intellectual Property, Exactly?

Intellectual property—or “IP” as the cool kids call it—refers to original creations of the human mind. 

How’s that for a lofty definition?

Intellectual property includes stuff like inventions, designs, logos, symbols, images, business names, visual art, and literary works. When you own the copyright for a book, that book is considered an IP asset.

You might hear publishers, studios, or individual authors talk about making the most of their IP assets. What they mean is that they own certain exclusive rights to distribute copies of a creative work and/or prepare derivative works based on that intellectual property. 

In other words, if you wrote a bestselling fantasy e-book and never transferred your rights to anyone else, that novel would be your IP asset. 

You could capitalize on the success of your intellectual property by releasing print versions, audiobooks, special editions, and books translated for foreign markets. You could adapt it for the screen or stage and create an entire series involving your fictional world and characters.

No one else can do these things without your permission as long as it’s your IP.

And how do you claim it as your own?

Great question.

Types of Intellectual Property Rights

There are four main types of intellectual property rights:

1. Trademark - This concerns elements businesses use to distinguish themselves, such as logos, symbols, words, sounds, and even fonts.
2. Trade secret - This covers private information that allows a company to maintain its competitive edge, like a secret recipe or special process.
3. Patent - This secures an individual or entity’s rights to an original invention.
4. Copyright - This protects a tangible artistic expression.

We’re not going to concern ourselves with the first three in this article. While they could potentially be relevant at some point in your author career, it’s copyright you’ll have to think about most.

So let’s get to it, shall we?

What Are Copyright Laws?

Under copyright laws, you hold the exclusive rights to use, adapt, and distribute your own creative work as you see fit. No one else is allowed to do those things unless they have your written consent. (More on that in a bit.)

Copyright law protects tangible artistic expression such as literary works, written and recorded music, and visual art. 

As of this writing, U.S. Copyright law is based on the Copyright Act of 1976. If you’re someone who thinks 450 pages of legal chatter sounds like a good evening, you can read the law yourself right here.

If you’re more of a “just give me the highlights” type, stick with me.

Understanding Author Copyright Protection

Technically speaking, you hold the copyright for your work from the moment it’s “fixed in a tangible medium.” That is to say, once you’ve typed the words, they’re legally yours. No one else can swoop in, steal your draft, and publish it without your permission.

Now, despite the immediate nature of copyright ownership, many authors choose to register their work with the U.S. Copyright Office. We’ll explore the reasons for that later.

What’s Covered Under Copyright Law?

Okay, this is the stuff you’ll want to know when and if you start working with publishers. 

According to the Copyright Act, only the copyright holder has the right to do these six things:

1. Reproduce the work
2. Distribute the work
3. Prepare derivative works based on the work, such as sequels, series, and adaptations
4. Publicly perform the work 
5. Publicly display the work 
6. In the case of a sound recording, publicly perform the work by way of digital audio transmission 

See how it all comes back to the true value of your IP? There are so many ways to share your book with the world. More specifically—and at the risk of sounding crass—there are so many ways to make money off of your written work.

That’s why you’ve got to read the fine print when the time comes to sign a publishing agreement. Your signed agreement will turn certain rights over to them, and you want to be thoughtful about which ones you grant them.

Copyright Limitations and Exceptions

While you hold exclusive rights as a copyright owner, there are some situation-specific exceptions that require you to be chill about having your writing copied, distributed, or otherwise used in someone else’s work.

One major limitation on your exclusive rights is the fair use exception. That’s a bit complicated so we’re going to tackle that monster in its own section later on.

Other exceptions include things like: 

• Allowing performances of your work in a classroom setting for educational purposes
• Allowing libraries to make copies of your work in order to preserve it
• Allowing authorized entities to release your work in formats that make them accessible to people with disabilities such as blindness

It’s mostly the kind of stuff you’re unlikely to object to, anyway. That said, there are a lot of possible exceptions—many of which are super specific—and we won’t get into all of them here. So, again, do your research and talk to a lawyer if you plan to go after someone for copyright infringement.

What Can You Copyright?

Copyright law applies to the creative expression of your ideas, not the ideas themselves.

In other words, you can copyright a book, short story, poem, painting, sculpture, photograph… stuff like that. You can even copyright jewelry designs.

As I mentioned before, you hold the exclusive rights to your work from the moment you fix your ideas in a copyrightable expression. Or, in layperson terms, as soon as you start writing the book, you’re the copyright holder.

Unless it’s a “work made for hire” situation. More on that in a sec. 

What Can’t You Copyright?

There is no copyright protection for ideas themselves. 

Let’s say your novel features a protagonist named Chuck or an apple that symbolizes courage or a fake dating scheme set in outer space. Any other author can do the same thing without risk of copyright infringement.

What they can’t do is use, distribute, reproduce, perform, or create derivative works based on your book—your full expression of those ideas. 

You also can’t copyright your book title, names, and short phrases.

When Someone Else is the Copyright Holder

Now that I’ve established multiple times that you are the copyright owner from the moment you begin expressing your ideas in a tangible form, I’d like to muddy the waters a bit. Sorry about that.

There are many situations where you might choose to license specific rights to someone else. For example, if you sign a publishing agreement, you’ll have to turn over some exclusive rights to your publisher. They can’t produce and distribute your book if you don’t. It’s the same deal when you sell an article, essay, poem, or short story to a publication. 

However, you don’t have to transfer full copyright ownership to a publisher or publication. For instance, you can grant a publisher the right to produce and distribute print and audiobook copies of your book in North America while holding onto your digital rights. 

If you want your work to be used and shared more freely, you have the option to establish a public copyright license. If you’ve ever heard of a Creative Commons license, that’s a popular form of a public copyright license.

Basically, this licensing option allows you to grant more people the right to use your work in a variety of contexts for free. You can set perimeters, like whether you’ll allow commercial use of your work or if the user is required to alter it in some way.

It’s important for writers to understand Creative Commons licenses. Even if you don’t apply the concept to your own work, you might want to use copyrighted visual elements in your cover design or marketing images. You need to know how to determine if those elements are legally available to you and what restrictions might be included in a Creative Commons license.

Finally, it’s possible to be the creator of a written work and never be the copyright holder. That’s the case in a “work made for hire” situation. In that scenario, someone has hired you to create something on their behalf under a written contract stating that they hold the copyright to the work you produce for them. 

Why You Need to Know About This Stuff

Understanding copyright law isn’t just about knowing when your rights have been violated. It’s also about getting the most value out of a single written work. Or, as the fancy business types say, it’s about maximizing the profit potential of your IP.

When you negotiate a publishing agreement, notice which exclusive rights they’re asking for. Do they want the right to:

• Distribute your work globally?
• Publish it in all formats, including formats that have yet to be invented?
• Make deals to have your work adapted for film or television?
• Publish, adapt, and distribute any new works you create based on the material they now own the copyright for?

That list is an oversimplification of the myriad opportunities publishers could claim for themselves. The phrasing in your contract will be much more complicated and dense, which is why it’s crucial that you go over it with a lawyer or agent.

A professional can also help you make sense of what copyright ownership looks like in the long term. Is there any point at which certain exclusive rights revert back to you? 

To be clear, signing over specific rights to a publisher or publication isn’t a bad thing. You just want to make sure you’re not throwing away profit opportunities by giving the rights to an entity that either won’t use them or will take an excessively large cut.

How the Digital Age Has Changed the Conversation

As an author, you should also be aware that in the discussion about copyright ownership, you hold more power than ever. The digital age has granted authors unprecedented autonomy.

Thanks to print-on-demand publishing, you can self-publish without having to invest in and store a few thousand copies of your book. There are countless ways to minimize or even eliminate design, formatting, and overall production costs.

Digital marketing tools are easy to use, affordable, and sometimes even free. You can build a fan base through social media and email marketing without depending on a major publishing house to get the word out about your book.

Sure, traditional publishers can still secure distribution opportunities that authors would struggle to secure for themselves and have marketing budgets that none of us would ever have on our own. But the point is that you’ve got options.

Ask Hugh Howey, who signed a print distribution deal after his runaway success with Wool. He pushed to retain digital publishing rights, knowing he could make way more in royalties by doing it himself.

Or Brandon Sanderson, who’s hung onto his right to special editions—a move that has allowed him to raise millions through Kickstarter campaigns.  

Understanding Fair Use

Okay, so that’s your great big overview of what copyright law protects, what it doesn’t, and what it means for you as you build your author career.

Now we’re ready to get into some next-level knowledge, starting with the fair use exception.

I mentioned this earlier when we discussed the limitations and exceptions to copyright protection. The examples I gave above were pretty specific, whereas the fair use exception covers a wide range of potentially legal uses of copyrighted material.

As an author, it’s a good idea to have some sense of what fair use is. Not only will this knowledge help you protect your own copyright with more insight but it will also help you determine when you’re free to use someone else’s work in your own writing.

Simply put, the U.S. Copyright Act allows excerpts of your work to be used in contexts like criticism, commentary (including parody), teaching, research, and news reporting.

Sounds straightforward, right?

Don’t worry. It’s not.

The Four Factors of Fair Use

The federal courts look at four factors when determining whether the fair use statute applies to a specific situation. Those factors are:

The purpose and character of the use - Fair use is more likely to apply in scenarios when the work is used for nonprofit educational purposes. The courts also prefer to see that it’s applied in a “transformative” way, meaning that the work that borrows from the original is its own distinctive creation, not merely a reproduction.

The nature of the copyrighted work - For example, nonfiction can more easily meet the standards of fair use, especially if the borrowed content is primarily facts rather than an individual creative expression. 

Personal, unpublished writings like diaries or letters are less likely to be considered fair use, as it would take away the copyright owner’s right to first publication.

The amount or substantiality of the portion used - This can be measured both quantitatively and qualitatively. 

So, if the excerpt used accounts for a large percentage or all of the original work, it’s unlikely to fall under the heading of fair use. Same deal if it’s a very small portion but could be considered the “heart of the work.”

The effect of the use on the market for or potential value of the work - This can get a little complicated. For example, something might not be considered fair use if the work that borrows from the original threatens to replace the original in the market or reduce its value…

…unless it’s a work of criticism. Then it’s usually chill, even though criticism could hurt sales. 

Once again, this is all very complicated. If you’re ever in a situation where you need to determine fair use, do your own research and consult a lawyer.

Copyright Infringement 

Now let’s say you’re pretty sure you’ve got a copyright infringement situation on your hands. Someone else is using or distributing your work, you’re pretty sure it’s not a fair use situation, and you want to put a stop to it.

What do you do? And what will happen after you do it?

Let’s discuss.

What to Do

In this situation, you usually want to start with the simplest, gentlest response and only escalate as needed.

The first step is to reach out to the infringer directly. Let them know what the issue is and ask them to stop doing what they’re doing. Not everyone understands copyright law and may not realize when they’re in violation of it. A little heads-up might be all they need to back off.

If that doesn’t work—and if the infringement is online—you can issue a Digital Millennium Copyright Act (DMCA) take-down notice to the website owner or internet service provider. They’ll most likely remove the infringing content.

If that’s the only result you care about, you can stop there. However, if there are other instances of infringement to address or you’re seeking damages, you can move on to the next step, which is finding a lawyer.

An attorney might start with sending a cease and desist letter. Within that letter, they could also request damages, royalties, and/or reimbursement for legal expenses.

If that doesn’t go anywhere, you can get the U.S. Copyright Office or federal courts involved.

The simpler option is to file a CASE Act Claim with the U.S. Copyright Office. This course of action moves more swiftly than a court case, though you can’t claim damages higher than $30,000 and the infringer can opt out of this process if they want.

The final option is to file a lawsuit in federal court. (State courts have no jurisdiction in copyright matters.) This can be a long and costly process, especially for an individual copyright owner versus, say, a major publishing house. 

Whatever path you take, remember that it’s extremely important that you can prove copyright ownership. Gather your evidence, including the original manuscript, early drafts, and especially proof of copyright registration.

Famous Copyright Infringement Cases

The copyright cases that get the most press tend to be stories from the music business. Probably because the people involved are super famous and most folks can get their minds around the idea that “Shape of You” sounds too much like “No Scrubs.”

But there have been plenty of interesting literary copyright cases, too—many of which have set precedents for modern interpretations of federal copyright law.

In the 1930 case Nichols v. Universal Pictures Corp., a playwright sued Universal Pictures over a film that had the same basic premise as her play. 

While the court determined that copyright cannot be based on the literal text alone—a few simple tweaks would make anything fair game, in that case—they ultimately ruled in favor of Universal. The similarities didn’t go far beyond the central conflict and themes which, as we know, are not copyrightable on their own.

In 2020, Dr. Seuss Enterprises v. ComicMix clarified the question of fair use. ComicMix released a Star Trek themed version of Dr. Seuss’s Oh, the Places You’ll Go! titled Oh, the Places You’ll Boldly Go! 

As the new book was a direct imitation of the original (not transformative!) and in no way commented on the original (purpose of use!), the court ruled that it did not qualify for the fair use exception.

Even as I write this (April 2024), the literary world is buzzing, waiting to see the outcomes of several cases authors have brought against OpenAI for using their work to train artificial intelligence.

Copyright law is a growing, shifting thing. 

Copyright Registration Process

The process for registering a work with the U.S. Copyright Office is pretty straightforward.

Pop on over to their website and fill out an application. You can submit your form electronically or by mail. Same deal with the registration fee, which, at the time of this writing, will land somewhere in the $45-$125 range, depending on your situation.

Then you’ll need to send them a copy of the work to be copyrighted. There are guidelines for whether you should send an electronic or hard copy, so pay close attention to the option that’s appropriate for you.

If you have any questions along the way, you can find tutorials here and frequently asked questions here.

Why Register for a Copyright if You Don’t Have To?

I don’t know if I’ve told you this before, but you become the copyright owner the minute you fix your creative ideas in a tangible medium. In other words, copyright protection is automatic, no paperwork necessary.

So why bother registering with the Copyright Office?

Because it’s going to make life a lot easier for you in the event of an infringement.

If you want to sue an infringer in federal court, you must have copyright registration. You also need registration to pursue statutory damages and attorney fees. Plus, registering with the Copyright Office creates a public record of ownership so the court will ask for no further evidence on that front. You’ll also be able to get an injunction much faster.

Lotta perks. Hopefully, you won’t need them. But if you do, you’ll be glad they’re there. 

Public Domain 

Now that you’re all set to formally claim and protect your copyright, let’s talk about how long that copyright protection lasts. 

As of 1978, it lasts for the life of the author plus 70 years. If there’s more than one author, it lasts for the life of the last surviving author plus 70 years.

If it’s a “work made for hire” situation, copyright protection lasts 95 years from the year of publication or 120 years from the year of creation, whichever is shorter.

Now, these weren’t always the standards. For works published between 1923 and 1977, protection expires 95 years from the year of publication. And any work published prior to 1978 required a copyright renewal in the 28th year, otherwise the protection expired.

Once copyright protection ends, the work is considered to be in the public domain. A written work can also become part of the public domain through a deliberate donation from the copyright owner. 

So what does this mean for anyone wishing to use that work?

Well, it means they can use it. You can release your own editions of public domain works, turn them into audiobooks, write theatrical adaptations, and craft sequels. You can expand the world, play with the characters, and release a version of that work that involves zombies.

Crazy, right? You just have to make sure that the work you’re using really is in the public domain.

How to Determine if Something is in the Public Domain

Math. You have to do math.

But even that’s a little dicey. If you hadn’t noticed, copyright law is a messy, sprawling beast, and it’s good to double check that a work you believe to be in the public domain really is fair game.

There is no comprehensive database of all public domain works, but there are a couple that house a good number of them. You can search for a work in the HathiTrust database or Project Gutenberg.

When in doubt, consult a copyright attorney. You know the drill.

Feeling Empowered Yet?

Federal copyright law is usually not the most enthralling topic for us creative types. But I’ll admit I had more fun writing this article than I expected to.

There’s something empowering about understanding the protections that exist for our writing, not just because it means we’re better equipped to guard our assets but because it clarifies the true value of our work.

Writers often joke about how we can spend three years on one book. Copyright law reminds us that it’s never just a book. It’s a book and an e-book and an audiobook and a potential series and a film adaptation and an entire globe full of translations and new markets.

It’s a ton of opportunities to get closer to your author goals, whether your dream is to make a living with your words or reach more readers with your stories.

Want to feel even more empowered in your journey? Stick with Dabble. We’ve got loads of free articles on the business and craft of writing in DabbleU. Sign up for our newsletter and get tips and prompts delivered right to your inbox once a week. 

Hang out in our online writer community, Story Craft Café, and hear what your favorite authors have to say about craft and career on the Dabble YouTube channel.

None of us makes it in this crazy business alone and we’d love to take on this adventure with you.