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The Fundamentals of Copyright Law, Publishing Contracts, and Author Representation

This article discusses one of the most important monopoly rights in society today - the right of authors to control, for a limited time, the ability to make and sell copies of certain literary or artistic productions. It also highlights the topics an author should consider when entering a contract for the publication of a work, and finally, the representation of authors by agents and attorneys.

1. Copyright Law - The Basics

The Legal Framework for Copyright Law. Copyright protection arises from the Copyright Clause of the U.S. Constitution, which is Art. I, Sec. 8, Clause 8. The Copyright Clause gives Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The purpose of copyright protection is to encourage people to devote themselves to intellectual and artistic creation, through economic incentive. Under copyright law, authors gain certain exclusive rights over with their works which they can use to their economic advantage.

Congress has passed copyright legislation at various times, including in 1790, 1831, 1870, 1909, 1976, and 1989. In 1989 the U.S. Copyright Act was revised in order to align U.S. law with an international treaty called the Berne Convention. The treaty protects the works of American authors in those foreign nations that have signed the treaty. It also gives U.S. protection to works by authors from other countries that are signatories to the treaty. The Copyright Act is found at 17 U.S.C. § 101 et seq. Regulations regarding copyrights are found in 37 C.F.R. Part 201 et seq.

Subject Matter of Copyright. The subject matter of copyright is "original works of authorship" that are "fixed in any tangible medium of expression." Works of authorship include literary works, musical works, dramatic works, pantomimes and choreographed works, pictorial, graphic or sculptural works, motion pictures and other audio-visual works, sound recordings, and architectural works.

A work does not need to be novel in order to have copyright protection. A work is "original" if it is "independently created," which means not copied. In other words, original means the work owes its origin to the author. Two authors unknown to one another could create identical works, neither of which would be novel, but both of which would be "original" and entitled to copyright protection.

Issues of originality, copying and plagiarism have been in the news recently with regard to history authors Stephen Ambrose and Doris Kearns Goodwin, and romance novel author Janet Dailey. Five Ambrose books and one by Goodwin were claimed to contain passages that are direct quotes from certain external sources, but were not enclosed in quotation marks. While Ambrose and Goodwin stated any failures to insert quotation marks were inadvertent, and while both Ambrose and Goodwin footnoted the external sources, in the case of Goodwin, a confidential settlement was reached with the author of a book on Kathleen Kennedy that was described as substantial, and not "token." Similarly, Dailey was found to have copied from a book by another romance novelist, Nora Roberts. Dailey admitted that copying occurred, which she blamed on a psychological disorder, and she settled her case with Roberts by making a financial payment that Dailey later donated to The Literacy Volunteers and to The Author's Guild.

Copying can be inadvertent and unintentional. This is shown by the famous case involving the George Harrison song, "My Sweet Lord." The court at 722 F.2d 988 held that the song was copied from a previous musical hit, "He's So Fine," even though any copying was subconscious.

A work must also contain an element of creativity in order to support copyright protection. The creativity requirement is different from the originality requirement, and involves intellectual conception by the author. A fairly low level of creativity is necessary, and most works contain the necessary minimal level of creativity. However, in one case, the court held the text in a label for a shampoo bottle was not entitled to copyright protection because it was merely descriptive. That is not to say that literary works must have literary merit or qualitative value in order to enjoy protection, however.

Because copyright protects original works that are "fixed" in tangible form, ideas or concepts are not copyrightable, although business processes may be subject to patent protection. One cannot copyright a food dish, or a basic listing of ingredients, but a recipe that contains original text may be protected by copyright.

Copyright Ownership. Ownership of copyright vests in the author or authors, and arises when the "original work of authorship" is first "fixed in any tangible medium of expression." Thus, ownership vests at the time of creation. Copyright registration does not create the ownership, but rather, is evidence of a claim of ownership and constitutes notice that ownership is claimed. The authors of a joint work are co-owners, and ownership initially vests in all of them. However, collaboration alone is not sufficient to establish co-authorship; each author must make an independently copyrightable contribution to the work, and have fully intended to be a co-author.

"Works for hire" are works made in the context of an employment situation. Generally speaking, the employer is considered the author and copyright owner of a "work for hire."

Some states, including New Mexico, are community property states with regard to marital assets. The general rule in community property states is that all property acquired during the marriage is community property. A California case, which has been criticized, indicates that a copyright in a literary work is community property, and, therefore, is an asset of the marital estate.

Ownership of copyright, or any part of it, may be transferred, such as by contract, assignment, mortgage, and the like. Transfers must be in writing in order to be valid, unless the transfer is a non-exclusive licence. Transfers of ownership may be recorded with the U.S. Copyright Office in Washington, D.C.

Ownership of copyright is different from ownership of the material object in which the work is fixed. This means that the sale of an original painting is a sale of a thing, and not a sale of the copyright, unless the copyright owner and the buyer specifically agree in writing that the copyright is being sold along with the tangible object.

Exclusive Rights Associated with Copyright. The owner of a copyright obtains a "bundle" of rights regarding the work, each of which is separate. The bundle includes the rights of reproduction (i.e., to make copies of the original), adaptation (i.e., to make derivative works), distribution of copies, publication, public performance, and public display. A person who wrongfully uses or authorizes the wrongful use of a valid copyright is considered an infringer.

Fair Use. The primary doctrine concerning limitation on the exclusive rights inherent in copyright is the fair use doctrine. It provides that a person may be able to use limited portions of a work, including quotes, particularly for purposes of commentary, criticism, news reporting and scholarly reports. Among the factors relevant to whether a use of a copyrighted work qualifies as a "fair use" are the purpose and character of the use (i.e., non-commercial, non-profit and educational uses are more likely to be viewed as "fair" than are uses for commercial gain), the nature of the copyrighted work (i.e., the more creativity in the work, the less likely the use will be seen as "fair"), the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for or value of the copyrighted work. In a recent fair use case, the head of actor Leslie Nielsen was superimposed on Annie Liebowitz's photograph of a naked and pregnant Demi Moore, in an advertisement for a Naked Gun movie. This was determined to be a fair use parody, and not an infringement of the copyright in the Liebowitz photograph.

Term of Copyright. The duration of a copyright can be a complicated matter which depends upon when the work was created, and which Act of Congress regarding copyright was in effect at the time. Generally speaking, with respect to works created after January 1, 1978, copyright arises when the work is created, and lasts during the lifetime of the author plus 50 years. However, following the Sonny Bono Copyright Extension Act of 1998, the copyright for such works lasts during the lifetime of the author plus 70 years. In addition, different rules may apply in certain contexts, namely, works for hire, anonymous works, and works under pseudonyms. For works published after January 1, 1978 and in which the author is identified by a fictitious name, the term of copyright is 95 years from the date of first publication of the work, or 120 years from the date of creation, whichever expires first.

Copyright Notice. U.S. law traditionally required that the public be given notice of the claim of a copyright in a work. Congress has recently tried to eliminate arbitrary forfeitures of copyright that can result from not placing notice on large numbers of copies, however. Therefore, generally speaking, post-1989 works do not need a copyright notice in order to have copyright protection. Placing a copyright notice on a work is still a good idea, however, and consists of the familiar "circle c" symbol or the word "copyright," plus the first year of publication, and the name of the copyright owner.

Copyright Registrations. Copyright registration is accomplished by submitting an application to register, a deposit copy, and the required fee to the U.S. Copyright Office in Washington, D.C. A great deal of useful information regarding copyright registration is available at the U.S. Copyright Office's website, at The "frequently asked questions" section is both useful and sometimes amusing, as it asks, for example, "How do I protect my sighting of Elvis?"

Although, under the 1976 Copyright Act a work created after January 1, 1978 is protected by copyright immediately upon creation (i.e., fixed for the first time in a copy), registration is a prerequisite for a suit for copyright infringement. In addition, registration is a prerequisite for obtaining certain remedies in an infringement suit. For example, one can only recover "statutory damages" in the event the infringement has begun after the registration is issued; therefore, "statutory damages" are not available for infringements that begin before registration is issued.

A copyright registration is evidence "on its face" of copyright validity. Therefore, a person alleged to have infringed a registered work has the burden to prove the copyright is invalid, instead of the owner having the burden to prove the copyright is valid.

Infringement Actions. The elements of proof necessary to establish a claim of copyright infringement are ownership of a valid copyright, and copying by the defendant. Copying may be proved with direct evidence, such as testimony that the defendant was observed to be copying from the plaintiff's work. Because this is so uncommon, the courts have held that copying can also be proved circumstantially with evidence that the defendant had access to the copyrighted work, and that the defendant's work is substantially similar to the plaintiff's work.

Defenses in an infringement action can include copyright invalidity, fair use, delay in suing, abandonment of the copyright, and so forth.

Damages can be set as the plaintiff's actual damages (such as lost profits), plus the defendant's profits attributable to the infringement and not taken into account in computing plaintiff's actual damages. Or, at the plaintiff's election, damages can be "statutory damages" in an amount equal to between $500 to $20,000 in one work for non-willful infringement, and up to $100,000 for willful infringement. The plaintiff can also obtain an injunction against continued infringement, impoundment or destruction of infringing copies, court costs, and attorney fees. In addition, criminal penalties exist for willful infringement of copyright for financial gain.

2. Publishing Contracts

An author typically enters into a publishing contract in order to assign to the publisher the author's exclusive right to make copies of his or her original work of authorship. When an author is considering this kind of contract, he or she should try to retain as many rights inherent in copyright as possible. For example, authors will want to try to hold onto rights to make dramatizations of the work (i.e., "multimedia rights"), and the rights to translate the work into foreign languages and to publish the work in foreign countries.

Another right authors should be concerned with is the editing right. Numerous authors have signed publishing contracts with publishing houses, only to see their works transformed by the publishing house into something they would not have written. The right to control the cover art for a book is a right the author will rarely be able to retain, however.

Authors should also negotiate for as large an advance as possible, not only from the standpoint of immediate financial gain, but also because a larger advance creates an incentive for the publishing company to print an ample number of books and to promote the work. Sometimes, publishing contracts require publishers to spend money on publicity in an amount that is equal to the advance.

The main elements of a publishing contract are sections regarding the parties to agreement, the background of the parties and the agreement, preambles or recitals, definitions (including territory covered), the grant and scope of the license given (including whether it is exclusive or not, the purposes, i.e., to print, reprint, publish, copy and sell, to translate into other languages, and to dramatize), restrictions and limitations on the rights (i.e., specific medium, territory, whether a sub-license is allowed or not, and if so, if the author's consent is required), consideration or royalty, representation and warranties, discussion of infringement actions, and dispute resolution.

3. Author Representation

It is usually worthwhile for an author to enter a representation contract with a literary agent. Agent-only representation is the norm for most authors, but some authors are represented by both literary agents and attorneys, and some opt for lawyer-only representation. An author should generally consult with an attorney in the event a dispute arises with a publisher.

Literary agents should "pay for themselves" by locating the best publishing house possible for the work, negotiating for as great an advance as possible, permitting the author to retain rights, such as foreign and multimedia rights, and creating an incentive for the publisher to promote the work.

Authors should be wary of literary agents who attempt to "sign up" an author for something more than an "at-will" arrangement, although "single book" and "terminable on 30 days notice" arrangements are generally acceptable from an author standpoint as well. Occasionally, an unconscionable literary agency contract can be rescinded.

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