Indy-pendant Author and the Tomb of Copyright Horrors

Since my last little non-fic article was pretty well received, and because I absolutely love writing stuff like this, I figured I would do another one: a beginners guide to copyright laws and how they apply to authors and publishing. No, I am NOT a copyright lawyer, and if you have any real questions or doubts you should ante up the money and consult one. This is written based upon experience in advertising in a copyright-heavy environment (radio time), lots of business classes (including a few on copyright, trademark, and patent law), and a stint as a volunteer content moderator for an art and fandom website (where I did have to deal with law-types in regard to copyright violations). Note that this post is based on US copyright law, but it's a pretty good rule of thumb for anywhere since at some point you will probably deal with the US market.

I decided to write on this topic this time because I've noticed a lot of posts coming through FB about pirated e-books. It's a shame that sites exist to steal other people's work of any type. However, I've also noticed that some of the people fighting against this type of piracy are in fact “pirates” themselves, either through ignorance or perhaps thinking that their type of theft isn't as “bad” as someone stealing their book. In the sincere hope that it is simply ignorance, here's a dose of edumacation.

What is a copyright, and how does it differ from a trademark?

A copyright designates the legal ownership of an idea expressed in a form that is tangible in some way; books, songs, art, and photographs all fall under copyright laws, for example. This copyright can extend, in certain cases, beyond the initial item that is copyrighted, such as fan works based on a favorite series. A copyright does not have to be formally filed to be legal or enforceable; being able to prove that the work existed in a certain form as of a certain date is sufficient to enforce copyright. If you wrote it, took it, filmed it, whatever, and you were not under contract to give it to someone else, it's yours and no one else can use it unless you say so.

A trademark is different than a copyright in that it must be legally filed, it must list all formats in which the trademark may be used that the owner wishes to be able to enforce protection on, and is limited to recognizable, identifying “items”, such as a name or a logo. It is also much more enforceable and generally carries tougher legal repercussions for theft. You cannot trademark a book; however, you can trademark the title, you can trademark an icon used to designate a series (the mockingjay and arrow logo from The Hunger Games are trademarked), you can trademark your character or world names (the name Harry Potter is trademarked, as is the world name Pern), you can even trademark your own signature (Walt Disney's signature is trademarked). Because of the huge cost and legals that go into trademarks, I am not going to cover them at length here. They are best discussed with a lawyer who specializes in them.

Let's break it down into how each would work into your book, which we will call Lindzee Loo and Her Adventures in Wyvernopolis. The book (meaning the text within it) and the cover art are copyrighted; you get this automatically under US law, no action needed on your part. Though you likely have provable documentation of your ownership of the work before it is published, as soon as it hits Smashwords or Amazon, they're both locked in and the publication dates are definitely usable in a court of law should you ever need to protect yourself. (Note: those sites also track any uploaded revisions, so don't try to change your old work to resemble something famous and try to sue on infringement, because it won't fly.) If you want additional protections under trademark laws, you need to purchase them and they are REALLY expensive. But you could, if you wished, file for trademarks on the name Lindzee Loo and any other characters you wanted to protect, Wyvernopolis, and/or a particular branding image on the cover (maybe it's a wyvern wrapped around a sword going through a platypus... something very identifiable), and of course, “Lindzee Loo and Her Adventures in Wyvernopolis”.

Trademarks and copyrights serve the same basic purpose: they protect your intellectual and identifiable property from being used or traded by others without your express permission, should you choose to take legal action against infringement. That is the big catch; in order to protect your copyright, you have to file legal action against those who infringe upon it. No one else is likely to do it for you unless they have a legal claim, such as your agent or publisher, and they can just pass the buck back to you if they want. Sometimes just asking nicely works as well, but don't count on it.

Who owns a copyright?

Copyrights are owned by the people who created the work; in the case of joint creation, the copyright is automatically shared. Copyrights can be legally transferred, either permanently or for a limited use. For example, I did the actual artwork for my own book covers for Heartkeeper and Heartbound, but Marya Heiman (who is awesome), working under Clean Teen Publishing (also awesome; deal, I'm pimping my peeps), created the final layout including the title, credit, and border, in part using elements that she purchased the rights to use. We share the copyright on the covers, limited by the contract that Marya is under for the other copyrighted parts. They (Clean Teen or Marya) cannot take my artwork and use it on another book or anything else without my permission, and if we ever dissolve our contract, I cannot use Marya's layout on any further publications of the same book. I could, however, make an offer to Clean Teen to purchase their part of the copyright so that I could continue to self-publish using the same cover layout. They do not have to accept my offer, though, and there is nothing I can do about it. I would also have to secure the rights to the elements separately, even though Marya already paid for them, unless her contract for the elements states that it is transferable. The people that Marya bought the rights to the elements from have no claim to either of our work at all as it pertains to those book covers, but we are still restricted by their contract rules. See how it can get convoluted pretty quickly?

Limited use copyright is a little different, and is something that professional cover designers are very familiar with. The most common example that you see in independent publishing or small publishing houses is the purchase of stock photos to use for book covers. The cover designer purchases the right to use the image on a commercial product, namely the cover of the book and/or advertising materials. However, their usage of the image is limited to that one product; unless their purchase contract says otherwise, they can't use it on a bunch of books without paying the rights again. When you buy a “stock cover” from a cover designer – one that they can sell over and over under different titles – that used stock images, then they are (hopefully, for their sake) selling the design elements under a multiple usage contract from the original stock provider.

Types of copyrights

There are dozens of types of copyrights that can be invoked for any particular work, but the type of copyright, if it is not the generally understood concept, must be specifically stated to be assumed or acted upon. For most of you, the general term “copyright” is the most applicable. Your book is copyrighted; that's good enough. The rest would apply to artwork you might want to use, or if you ever want to release the copyright on the book so that anyone can distribute it. Here's just a few of the ones you might commonly hear:

Creative Commons: Creative commons is a type of copyright that specifically means that the work has been released from legal liability so that the public can use it for non-commercial use unless otherwise stated. They can pick it up, distribute it (as long as it is for free), use it on their website, and use it in artistic pieces within limits. As an example of what would be considered to be “within limits”, we'll say I took a photograph of a sunset and released it to creative commons. Someone making a movie could not use that image as part of the opening credits, the movie poster, or anything else that was a focal point of the movie. But they could print off the image, put it in a frame, and have a character walk past it once in an office. In order to use it as a focal point – bringing it back to books, we'll say as part of a book cover, it would have to be...

Commercial Usage Allowed: Some copyrights, including some creative commons, are designated as commercial usage allowed, meaning that they can be used in a context meant to generate revenue for someone else. Doing a web search for “free fonts commercial use” is going to get you a lot of different font choices you can use for your book cover at no cost or signed contract (the “contract” in this case being replaced by a general release page on the website you got the font from). Yes, fonts ARE copyrighted, did you know that? Just because it is loaded on your machine does not mean it is free to use, especially those you found online. Many are free to use for non-commercial use (like for a presentation or a report) but just as many require a contract and a fee to use them for anything that you plan to sell, even if that fee is .99 cents and you simply clicked “I accept” rather than actually read the contract, shame on you. When you hire a cover designer, they are checking that the font and the images used on your book cover allow commercial usage. In the case of images, they are also checking for something else:

Derivations or Deviations Allowed: A copyright license that allows derivations means that you can make changes to the copyrighted item to fit your particular needs. If you purchase a stock photo of a wolf in a forest and cut out the wolf and put it on a different background, you are making a derivation; alternately, if you leave the photo as is and add something else such as a bird, that is also considered to be a derivation. This is important: if the copyright license does not specifically state that derivations are allowed and you do this, you can potentially be sued for breach of copyright.

What “Fair Use” Really Means

This is the most overused, and incorrectly used, term in defending the use of copyrighted materials. Here is what Fair Use means: it means that you can use an insignificant portion of a work, that does not contain the focal part of the work itself, in the context of a review, not for profit use, or an educational setting. It does not mean that you can take something you like, use part of it in or on your book, and sell it.

We clear on that? Good.

Copyright law comes down to this: unless you specifically own it, you cannot use it or do anything with it unless you can PROVE that you have the legal right to do so in the form of a stated release or contract, unless your usage falls under Fair Use as stated above, that you have to be able to produce upon request. And in general, getting permission to use copyrighted material costs money. Sometimes LOTS of money.

Now we will break all this down by addressing the Top 5 myths and misconceptions of copyright, especially as is seen commonly in indy publishing.

Myth 1: Because I found it on the internet, it must be free to use.

Website builders, for example, are notorious thieves. They see an image they like and they take it to use on their own site. And this doesn't only happen with the kids making their fun little personal pages, big companies have been busted doing this as well. Though people take an image they see and use it all the time, it doesn't make it right, or legal. Remember, copyright protection only goes as far as the person who owns the copyright is willing to pursue it. So if you find a pretty picture of a sunset on someone's Flickr page and decide to put it on your website, chances are very good that absolutely nothing is going to happen. But if you put that picture on your book cover and the owner recognizes it, especially if you are making money off of book sales, they can sue you for all of your book profits. And personal damages. And depending on how good their lawyer is, maybe emotional damage to their bichon frise. In other words, don't take the chance.

By the way, if you use a copyrighted image on your cover without permission and Amazon or Smashwords or the like catches you, you can get banned off the site. Permanently. Bye-bye, indy author.

MYTH 2: Trademarks that are part of the common culture are okay to use without permission.

Tread carefully. The short answer is no; if you want to mention McDonalds in your book, you need permission. The truth of it is many trademark holders won't mind if you use their trademark in a positive light, but you should ALWAYS check. Call their marketing department for their trademark usage rules in published works. They will either just tell you yes or no, or they will ask for the example reference, in which case you send them the page that they are mentioned on, and then they will either give or deny permission. You may need to pay to use the name, so be prepared to change your mind.

Random fun fact: Steven Spielberg wanted the boys in E.T.: The Extra-Terrestrial to order Godfather's Pizza during the Dungeons and Dragons scene, and even filmed Elliot carrying Godfather's pizza boxes. The word came from Godfather's late as to whether they could use the name: the answer was no. So they had to get permission from another company and reshoot the scene; some releases of E.T. even still have the audio of Elliot referring to Godfather's (did they sue? I honestly do not know). Good for the company that gave them permission to use their name, though; Pizza Hut made a fortune by being able to market E.T. glasses and such as part of the deal to use their name.

Anywhoo, this also goes for performers, movie titles, band names, etc.. You might think you are giving them free advertising; they might not want it. Think of it this way: you want to include a passage in your love scene where the lovers are listening to Barry Manilow. Aw, how sweet. Did we mention your lovers are members of the Ku Klux Klan? Barry isn't so happy any more. Or maybe, unbeknownst to you, that band you mentioned in your paranormal novel has a member who is afraid of ghosts and is offended that he is now associated with a ghost book. Or even more simply, that band might get upset because they think you are using their name to make your book more popular to make you more money when they got nothing. Because you never know, it is always best to check. Bands and personages of public interest often trademark their names, so find out who manages them and call them and ask. It's their job to answer questions like that. If you don't get an answer, just don't use it.

Myth 3: Quoting Song Lyrics Counts As Fair Use

Nope. Fair Use, once again, applies to reviews, education, and non-commercial usage. If you use it and make money off of what it is used in, you can get in trouble if you don't get permission first (remember Barry and the Ku Klux Klan lovers). Right off of Tor's website, in reference to Christine by Stephen King:

“A prolific quoter of songs, King made sure that each of 'Christine’s' 51 chapters starts with a rock n’roll lyric. The music permissions were so expensive that he had to pay for them himself (to the tune of $15,000) and their copyright info takes up three entire small-print pages.”

King was a pretty big name by Christine. If the copyright holders of the songs weren't going to give him permission for free just because he was known, you can bet your bylines they're going to be ticked if you don't even ask first.

Myth 4: If It Is Not On My Book, I Can Use It To Advertise.

OMG NO. No, no, no, no no no nononononono. You cannot take a copyrighted image of a guy – and if you did not take the picture, it's not yours, remember - and say he's your “dream cast” for this character in this book, sold here (link to Amazon). You cannot take your favorite songs, make a “dream soundtrack” to this book, sold here (link to Amazon) (or worse, give the songs away as advertising your book). And you cannot use copyrighted music as the background track in your book trailer made up of clips you found on Youtube but have no idea who actually owns them, overlay your book blurb, and put your name and purchase info in the credits (link to Amazon) (or link to anywhere they can buy your book) (or mention anywhere associated with making you money).

Advertising works the same way as making your book: if you don't own it, you need permission to use it, and this goes tenfold if you are using it to make yourself a buck. Why do you think only big name companies have the hottest music or great classics as music beds (a “bed” is the technical term for background music) in their commercials? Because they needed to purchase the rights to use it and it is expensive. Like, close to a million dollars expensive, for one song clip by one big-name artist.

If you use that hit song for your book advertisement in any capacity without getting permission, remember: you can be sued for your profits. You can be sued for personal damages if the owner of the copyright decides they don't like how it was used. AND you can be sued for lost advertising revenue because you didn't pay for it. AND if the performer is part of a union, guess who else is coming after you? Ever heard of a little group called the RIAA?

So your indy novel that maybe made you a hundred dollars in Amazon sales just cost you a few mil because you used someone's song to advertise it. Believe me, claiming “I didn't know” will not hold water in a courtroom. Still wanna risk it? Maybe that “dream soundtrack” isn't sounding like such a good dream any more.

However: the truth of the matter is that if you simply provide a list of the titles of songs on Facebook and say its your dream soundtrack and link to your book without actually providing the music, the chances of anyone slapping you with an advertising infringement is next to nil; you're walking a fine line, but like I said, copyrights go as far as people are willing to act to protect them and for things like that they are very unlikely to act against you. If you post a popular picture that you found of some actor or actress and say they're your dream cast, same thing. If you take that picture and overlay text advertising your book, or link people to the songs in your dream soundtrack in the advertisement for your book, then you have a much better chance of getting in trouble. You get the idea.

MYTH 5: If I Change It Enough It Is Okay To Use Without Permission.

I heard this all the time on the art website with photomanipulations; the artist would say that if they changed the copyrighted image, the copyright no longer applied. False. Remember above where I talked about “Derivations Allowed”? Laws protect copyright holders from having their images altered and a new copyright claimed on them; that is why when you purchase a stock image, you have to make sure derivations are allowed. Altering images without permission, especially to use to make money, is a violation of the owner's copyright.

How to Do It Legally (and Pretty Cheaply) and Still Look Professional

1. The best way to look professional and stay legal is hire a professional who knows the legals. It saves you a LOT of potential headaches. Professional book designers (should) know what their legal obligations are to making a book cover that isn't going to get you both sued, and hiring them is usually cheaper than getting a lawyer.
2. Contract, contract, CONTRACT. Cover your butt and cover it well. Get or find the legal release to use any copyrighted material, print it off, and put it in a folder in a safe so that if anyone at any time asks for proof of right to use something, you have it.
3. Number 2 also goes for hiring professionals. Their contract should accept responsibility for legal repercussions of copyright infringement on materials that they sell you the rights to or that your name will be associated with; in other words, they need to guarantee in writing that they can legally sell you what they are selling, or legally use what they are using to sell you as an author. If their contract does not have this clause and they will not adjust it to include this clause, do NOT accept it. Find someone else.
4. If you cannot find the permission online to use something you like online, don't use it. It's as simple as that. Look for something else.
5. Know what is available to you. For example: there are thousands of music beds out there that are creative commons, commercial use allowed, already nicely set up to thirty seconds, one minute long, or looping that you can use in your book adverts. There's hundreds of thousands more that are under ten bucks. Just do a web search for “commercial music beds”. You can even commission a musician to write music for you, just like you would hire a cover designer or commission an artist for your book cover. There is something out there for every budget and music style needed. And doing it this way is a lot better than ticking off someone like Lady Gaga.
6. Even as an indy who is not under contract to a publisher, you are a professional in a professional field as soon as your first book is released. Your best chances of being taken seriously and picked up by a publisher are out the window if they find out that you were convicted of a copyright violation charge; it's right up there with plagiarism. Even if you are never picked up, be the real deal and treat the law about copyright seriously. You will be much more respected if you do so, not only by your readers but by others in the field, because they know that other people's work – and most importantly their work - is safe with you.
7. Get legal help from a lawyer when you have serious questions. Copyright law is in many cases vague, confusing, poorly written and very difficult to understand without training. In many instances the law is not set by the way the law itself is written, but by the way courts have ruled in previous copyright cases. If you can't quote specific court case rulings on specific copyright usage or know someone who can to answer your questions, ask a lawyer. If you can't afford a lawyer, do your research and do it well. And if you don't find your answers, don't take any chances; a $200 dollar lawyer consult is a lot cheaper than a $20,000 fine, don't forget, and two days away from writing your book to verify beyond a doubt that everything about it is legal is much less a “waste of time” than spending two weeks in a courtroom is. Many copyright violations are made by people who simply wished that what they wanted to do was legit, so they fooled themselves into thinking it was. Don't be that person.

This very well may be a Part 1 of 2, because there is a lot of stuff that I did not cover, such as parody law and that sort of thing. If you have any specific questions, please ask and I will do my best to help you! If I cannot find you a very specific example that answers your question from a reliable and verifiable source (as in, not Yahoo answers or any of that crap), I'll just say so, won't give you false info, and will say what I said from the beginning: lawyers are always your best option with legalities. But this is a good primer on the general stuff that will keep you from losing your hard-earned rewards.

So remember folks … if you didn't make it, if you didn't write it, if you didn't record it, if you didn't take the picture, if you didn't film it – in other words, if it is not yours – and you use as a part of or to sell your book, you're stealing. You're no better than those pirate sites that took your work and try to take money from you. If you expect everyone to respect your rights as an author, respect everyone else's rights back.