Using Other People’s Work, Copyright Law for Writers

Use of someone else’s work, such as song lyrics, a quotation, or a character, in your story is subject to copyright law. Copyright protects the expression of an idea from unpermitted copying, modification, publication, or performance (“infringement”). Copyright only protects the expression of the idea, not the idea itself. J.K. Rowling has copyright protection on everything “Harry Potter” but may have a difficult argument claiming that a story about a boy going to a wizarding school is a copyright violation, which is also the plot of “The Magicians.”

While people and companies own copyrights, only people can create copyrightable works. If an animal, AI, or a machine creates a work, the work does not have copyright protection. In addition, for a work to receive copyright protection the work must contain “a modicum of creativity.” This means simple compilations of data, like a list of names and addresses, generally do not receive copyright protection.

Following is some general information on copyright law. This information is based on U.S. law although, thanks to international conventions, copyright law can be similar in many countries. Since every case is specific and laws do change, please do not take the following as legal advice.

When Does Copyright Protection Happen?

In the U.S., since 1986, copyright protection happens as soon as the idea is expressed. Every doodle and sentence instantly has copyright protection. If someone were to copy, modify, publish, or perform your work without permission (a license), you may have an infringement claim. If your work is not registered with the U.S. Copyright Office (https://www.copyright.gov/registration/) you could only stop the person from infringing (“injunctive relief”). You may be able to collect actual damages, those damages that happened directly because of the infringement.

If you registered your work with the Copyright Office, you could get injunctive relief and statutory damages. Statutory damages are set by law. You do not have to provide your actual damages. Statutory damages can range from $750 – $30,000 per work. If the infringement was willful, copyright damages could be increased to $150,000 per work. If the infringement was innocent, the statutory damages could be reduced to $200. Courts determine statutory damages based on the number of works infringed, not the number of times someone infringed a work.

What About the © Symbol and “All Rights Reserved”?

Using ©, “Copyright” or “Copr.” followed by the copyright owner name and the year is used to help defeat a claim of innocent infringement. It is not required for copyright protection.

“All Rights Reserved” was used much as the copyright symbol is used now but is not required. Its use is a holdover from when the U.S. and some other countries were not part of a global copyright treaty. While use of “All Rights Reserved” persists, it does not give the copyright owner any additional copyright protections.

Who Owns the Copyright if I Write Something for my Employer, contribute to an Anthology, or Ghost Write?

An employer and, if you are under a written contract, an anthology publisher, or person commissioning the ghost writing owns the copyright in the work as “work for hire.” The copyright statute defines work for hire on an exclusive list. Other types of works that are works for hire are: part of a motion picture or other audiovisual work, translations, supplementary work (like an illustration, foreword, or map), instructional texts, tests, and test answers.

If you contribute your work to an anthology or any of the other types of statutory works for hire without an agreement you, generally, would still own the copyright but the other party would have the right to publish the work as part of the anthology/book under an implied license.

How Long Does Copyright Protection Last and What is “the Public Domain”?

For works created after 1978, copyright protection lasts for the life of the author plus 70 years. If it is a joint work, protection is for 70 years is from the date of death of the longest surviving author. For works made for hire, anonymous works, or pseudonymous works (pen names), copyright lasts for 95 years from publication or 120 years from the date of creation whichever is shorter. For works created prior to 1978 see: https://www.newmediarights.org/guide/legal/copyright/public_domain/how_find_out_what_public_domain.

Once the copyright expires, the works enter “the public domain” which means the work no longer has any copyright protection. The Library of Congress has an archive of public domain works: https://www.loc.gov/free-to-use/.

When Can I Use Copyrighted Work without a License?

Using a copyrighted work usually requires getting a license from the copyright owner. You may be able to use all or part of a copyrighted work without a license if the use falls under the legal definition of “fair use.” Fair use is a defense against copyright infringement, so you’ll be claiming fair use after someone claims you infringed their copyrighted work. Courts look at four factors in determining fair use:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Having characters talk about a song may be an example of fair use.
• The nature of the copyrighted work. Factual or published works are more open to fair use than fiction and unpublished works.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Using a short phrase or song title is more likely to be fair use than quoting all the lyrics.
• The effect of the use upon the potential market for or value of the copyrighted work.

The fair use factors are evaluated on a case-by-case basis, so there is no simple formula to predetermine fair use.

Conclusion

Hopefully, you’ve found this overview of U.S. copyright law helpful. If you ever have questions about copyrights, please consult an attorney. Many states have free legal services for qualifying artists.