I don’t know if I was very clear last post, but I wanted to explain a little more what my motiviations are in writing this.

The publishing world is changing, and as a writer, you may need to change with it. That means you need to be familiar with what your rights are, how to exercise them, and then you can start thinking of ways to profit from them. If you’re presented with a contract, you need to know what kind of rights you may potentially be signing away. In the weeks ahead, I’ll be continuing this series, breaking down basic copyright, so that authors have a better sense of what they’re doing. We’ve got some big plans coming up for FIP, and if an author is educated on what their rights are, then we can work together with that person to find new ways, exciting ways, for FIP to work with them and make our business and their careers successful. I can’t stress this enough. As the managing editor of FlagShip, and of FIP in general, if you’re working with us as an author, I Want You To Know Your Rights And Use Them As A Savvy Operator In The Marketplace, Period. Know what you’re signing, know what you’re agreeing to. And know what we leave on the table when you sign a deal with us.

Last time, we talked a little about what the different rights of a copyright holder are. For US law, they’re defined in 17 USC § 106. In this post, I’ll explain what kinds of things are protected under copyright, and how you get that protection under US copyright law.

And all the standard disclaimers still apply. While I am a lawyer, I’m not your lawyer. This post is presented for general information purposes, and is not intended as legal advice. There is no intention to create an attorney-client relationship. Everyone’s situation is a little different, and you should go to your own attorney if you have any questions.
All right – so the basic copyright “rights” are reproduction (making copies), derivative works (everything from fan fiction to computer games to movies to broadway musicals based on your work), distribution, public performance, public display, and digital audio transmission. Which is great. You want those. What do you have to do as, say, an author of a novel or short story to get that copright protection?


That’s it. US Copyright law back in the day used to say that you had to do all kinds of things, that you had to put a properly formed notice in your work, that you had to register the copyright and renew after a certain period of time, and if you didn’t comply with the technical requirements, your work defaulted to being a part of the public domain. Not any more. With changes made to the copyright law in the late 1970’s, you no longer had to register. Incidentally, this was a key factor in one of the first copyright / intelectual property treaties – the Berne Convention.

17 USC § 102 gives the new rules, and outlines what’s protected and what isn’t. (I’ve got some notes in parentheses.)
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works; (novels, screenplays, short stories, novellas, poetry, etc. Also, non-fiction like textbooks, instructional manuals, biographies, historical records, personal journals, etc.)
(2) musical works, including any accompanying words; (songs – this is the protection on sheet music however it’s recorded be it piano notes or guitar tabs or something else)
(3) dramatic works, including any accompanying music; (plays – including musicals)
(4) pantomimes and choreographic works; (Used to be that choreography had a hard time getting protection, but with the advent of choreographic notation, as long as it’s written down, it gets protection)
(5) pictorial, graphic and sculptural works; (Paintings, sculpture, photographs, murals, frescoes, even graffitti)
(6) motion pictures and other audiovisual works; (movies, tv shows, online webisodes, animation, those kids’ shot-for-shot remake of Raiders of the Lost Ark – although it was a derivative work, etc.)
(7) sound recordings; and (#2 was for the sheet music, #7 is for the recorded version. Albums, singles, mp3s, podcasts, dramatic readings, interviews, etc.)
(8) architectural works.

That’s (a). Notice something missing up there? Yup. Software. Software is  kind of a weird hybrid. The source code is almost certainly protected, but the actual software itself may not fit. I’m not sure where the courts are on this, they may have decided something since I last looked at the issue. (Something to research for a future post, I suppose). Now… what ISN’T protected?

(b) 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.

So. What does THAT mean? Well, although they might like it to be otherwise, Marvel comics can’t prevent me or anyone else writing a story about a guy using powered armor. (I think I have someone talked into writing a serial that takes the concept to fantasy.) And powered armor stories abound – everything from Marvel’s Iron Man (personal size) to David Drake’s Northworld (Fusing powered armor and Norse Mythology) to Mobile Suit: GUNDAM (my personal favorite of the various Gundam series being Gundam: SEED, although it was Gundam Wing that got My Sweet Honey into anime). You can’t copyright mathematical formulae, the principle of a steam engine, or any other pure fact, or concept or idea. One of my favorite examples comes from twitter. (And if you’re a fan of JC Hutchins, you’ll remember this.)

He falls for the booty, he dies by the knife. It’s a great line. It immediately tells a basic framework of a story. But it’s no more than that. The way I would write that is going to be different from the way Hutch writes it, and would be different from the way Seth Harwood would write it, and would be different from the way Akiva Goldsman would write it. The thing you bring to the idea – THAT is what gets copyrighted.

Another case in point. Back in the day (The 80’s!), when these new-fangled telephones started coming out, an enterprising group of folks decided to create a list of all the people in town, and what their phone numbers were. So they went to work, went door to door, and gathered that information together and eventually created a white pages book. THEN some other enterprising people took that book, copied all the information out of it, and made their own white pages. Those guys got sued, and the court decided in 1991 in a case called Feist v. Rural (499 US 340) that the copiers had not violated a copyright. Mere hard work doesn’t get you protection. And mere arranging of names and numbers in alphabetical order doesn’t get you copyright. There has to be original work of authorship – something creative that you bring to it. So, while your white pages doesn’t get copyright protection, your algebra text arguably does. The formulas don’t change – but your explanation, the words you choose to describe it, the different problems you choose and the way you arrange the book bring creativity to the project – enough to get the protection.

In fact, let’s step back and break down the first part of the statute. What’s protected? Original works of authorship. Original = not derivative. Works of authorship = that creativity I explained above.

Now, how do I get protection? Protection happens once your work is fixed in a tangible medium of expression. If it’s written down on paper, paper is a tangible medium of expression. If it’s saved on your hard drive, it’s a tangible medium of expression. If it’s in the cloud – it’s on a hard drive somewhere. That’s okay. What if it’s not on the hard drive – but it’s just sitting in your RAM and you haven’t hit “Save” yet? Courts have said that RAM counts as a tangible medium of expression, and you get copyright protection as you type. Now, to be able to sue, you need to register your copyright with the US Copyright office, and if it’s registered before illegal copying occurs, that may have an impact on how much the illegal copier has to pay in damages, but you don’t have to register to get protection.

Mailing it to yourself is an old wives’ tale. It doesn’t work. It doesn’t prove anything. It just proves that you have an envelope with a postdate on it, and you could have done any number of things to get that work into the envelope. Just Write It, and the protection happens.

And that’s a quick and dirty run down on 17 USC § 102. Bottom line. What’s protected? Original Works of Authorship – which requires some creativity, and needs to be in one of the forms outlined above. Just a collection of facts, no matter how hard you work to put it together, isn’t enough to get protection.

If you have questions, feel free to leave a comment, or to discuss this on our forums.

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