With the influx of new self-publishing services such as Amazon KDP and Createspace, self-publishing has become an appealing option for up and coming writers. The world of literary publishing is filled with copyright concerns typically placed in the hands of the writer’s publishing house, equipped with its own legal counsel. A writer who self-publishes is usually left with the responsibility of developing an awareness of potential copyright issues and how to avoid them.
Copyright protection affords a copyright owner the exclusive right to reproduce, display, distribute copies and create derivative works of an original work of authorship. These rights automatically subsist at the moment the work is fixed in a tangible medium. For more information on copyrightable works click here.
WHAT YOU SHOULD KNOW
Facts and Ideas
Certain types of works are not afforded copyright protection. Section 102(b) of the U.S. Copyright Act states that: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
Given that copyright protection is not available for ideas, a writer will not be afforded protection for the general story line of their book. However, protection may be available for how the story line is expressed. For example, the fact that the Harry Potter novels are copyrighted does not prevent a writer from creating a book about a boy wizard who attends a school for wizards since that idea alone is not copyrightable subject matter. Thus, two writers can portray a story line in different ways without infringing on each other’s copyright. A writer must however, be wary of using the same or similar characters, language and imaginary locations as those found in a pre-existing work. The amount of copying which results in copyright infringement is a gray area and is determined on a case by case basis.
Facts, like ideas, are also not afforded copyright protection. While the creative selection and arrangement of facts is copyrightable, facts on their own are not.
A writer may wish to use images to enhance their work. However, images pulled from the internet may not be free for use without permission. Simply crediting the author and/or source may not be sufficient to avoid infringement claims.
Some images are available for use under creative commons licenses, see Creative Commons: About the Licenses. These licenses give the public the right to use, share and build on an author’s work with the requirement that the author is given credit for the original work. There are a number of creative commons licenses available, each of which provide different rights. Some creative commons licenses limit usage to non-commercial purposes, therefore it is important to carefully read the terms of a license prior to using an image.
A safe way to find graphics and images is through stock image agencies such as Getty Images and iStock Photo. These agencies provide access to stock photos, graphics and illustrations for a fee, or in some instances for free with certain restrictions. Another option is through Wikimedia Commons, a content repository providing content which does not require permission for use. Regardless of where an image is sourced, it is important to determine whether a license is required for use, and if so, what permissions are granted and limits are imposed on the specific license.
Work for Hire
Rather than sourcing images over the internet a writer may wish to commission an artist or photographer to produce images specifically for their book. In this instance, consideration should be given to whether the artist or the writer will own the rights to the commissioned images. Under U.S. copyright law the creator of a work is automatically the copyright owner unless the work qualifies as a “work for hire.” For a work created by an independent contractor to be considered a “work for hire” there must be a signed writing specifically stating that the work is a “work for hire” and it must fall into one of nine categories under the Copyright Act.
Images commissioned for use to enhance a writer’s work fall under the supplementary works category. Supplementary works include illustrations, pictures, or graphs commissioned for use as a contribution to the work for the purpose of introducing, concluding, illustrating, explaining, revising or commenting upon the work. Thus, a writer may obtain ownership in commissioned artwork by executing a written agreement specifically stating that the artwork is a “work for hire.”
An author who wishes to use quotes or excerpts from outside sources in their book may need permission from the speaker or owner of the copyright in the content. However, there are instances in which permission is not required. An author is free to use content where the use of the content is protected under the fair use doctrine or is in the public domain. See below for further discussion on these topics.
Works in the Public Domain
A work that is in the public domain is a work which is either not afforded any copyright protection or where the copyright term has expired, and therefore a user is free to use the work without the fear of potential copyright infringement issues. Some works in the public domain include book titles, ideas, raw data (such as facts and ingredients), and individual words.
Numerous sites providing access to works in the public domain can be found through basic internet searches. However, as with any result from an internet search, it is important to check the source of this information and confirm either through the Copyright Office or with the copyright owner themselves that the work is in fact in the public domain.
The Fair Use Doctrine
The fair use doctrine permits limited use of copyrighted content without the permission of the copyright owner, and may be used as a legal defense to copyright infringement. Under the fair use doctrine use of copyrighted content is permitted where such use is for criticism, comment, news reporting, scholarship or research.
Courts look to four factors when determining whether use of a copyrighted work is protected by fair use:  the purpose and character of the use,  the nature of the copyrighted work,  the amount and substantiality of the portion used, and  the effect the use has on the market for the original. No one factor alone is dispositive of whether a particular use is fair use. Fair use is not a straightforward concept and its analysis is conducted on a case by case basis by weighing each factor and considering the specific facts in question.
A general knowledge of copyright law is important when considering self-publishing. If you have questions or require guidance of this topic, contact us to speak with an attorney.
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