One issue that comes up a lot for writers is whether we can use some piece of another artist’s work in our own work.  The answer is: it’s complicated.  There are three things at play that you would have to consider: infringement, fair use and whether or not what you’re doing is considered a “derivative work.”  Here’s a quick rundown of these technical terms.

Infringement is when you take someone else’s work or idea and use it as your own.  Fan fiction would often be considered infringement because you’re taking characters that were created by another author.  Sure, you can write it for fun in the privacy of your home, but you won’t be able to sell it.  Note also that just changing a few small details is not enough to make a character or a story your own.  There is an exception to infringement, though, and it’s called “fair use.”

Fair use is what you use when you write an English paper and you need to use quotes in the paper.  You’re not paying the author you’re quoting for the right to use his or her words, but because you’re only using a short snippet and you’re using it for academic purposes, it’s OK.

There is another case where fair use comes into play and that’s with humor.  If you’re imitating an existing story or brand but are doing so as a parody, you may be able to claim “fair use.”  One example is the imitation of McDonald’s brand in the movie Coming to America.  The imitation restaurant is called McDowell’s and it serves the Big Mic and Chicken Nukkets.  In this case, the very similarities between the real and imitation brands is what’s being played for laughs.*

Derivative Works are any works derived from the original work.  In other words, if you own an existing work, you also retail rights to follow-on works in both that medium and other media.

For instance, suppose you own the rights to a novel.  You will also retain rights to sequel novels, plays, films scripts and films, audio books and translations of the original (provided you don’t give these rights away).  This is one place where it can be invaluable to have an agent in your corner.  Your agent will help keep you from giving away all these rights when you sign a contract.

Take-home message: 1) Don’t use pieces of work you don’t have rights to, unless you’re certain that you’re covered by fair use (i.e. like when writing an English paper).  2) Have any doubts as to which rights you should hold onto?  Get an agent.


*In this example, McDowell’s is an example of fair use with regard to a trademark, but fair use operates similarly with copyright as well.

Let’s suppose you have this super-amazing, sparkly idea and you know it’s a winner and you realize you have to copyright it right now.  (After all you don’t want someone to steal your super-amazing, sparkly idea, right?)  You call up a lawyer friend and ask what you need to do to copyright your super-amazing, sparkly idea and lawyer friend says:

Your heart sinks.  It seems so unfair!  Your idea is so super-amazing and sparkly, someone’s bound to steal it and make gazillions.  Why can’t you protect your idea?

Here are two things to remember:

1) You can protect your idea.  It’s called a trade secret, so as long as you don’t spill the secret, it’s protected.  If you want to protect your idea, zip the lip.

2) The idea is not the book.  We’ve talked about what makes ideas unique and one of the most important things to remember is that ideas are not books.  You could have two books with very similar ideas and yet the execution of the concept turns out to be completely different.  This is true in works outside of literature too.

Examples:

Dracula vs. Twilight
These two books couldn’t be more different.  But, if you strip away all the peripheral details, the idea behind these books is strangely similar.

Antz vs. A Bug’s Life
Anyone who’s ever seen both of these movies knows that while the concept is the same, the execution couldn’t be more different.  Even looking at the DVD covers you get a sense that these are two very different movies.

There are 4 main areas in IP (intellectual property) law.  These are: patents, copyrights, trademarks and trade secrets.

Patents:  Protect an invention.
Copyrights:  Protect artistic expression.
Trademarks:  Protect brand names and symbols.
Trade Secrets:  As long as you don’t tell the secret, it stays protected.
(Example: the Coca-Cola formula is a trade secret.)

For authors, the most relevant area of IP law is copyright.  Here are some of the basic things you should know.

Copyright is a property right which insures that someone else will not take your artistic expression and claim it as their own.

Copyright covers various forms of artistic expression.  This includes music (both composition and recordings), dramatic works (plays, dance, opera), visual arts (painting, sculpture, illustration), and film/TV.  Of course, the most relevant category for writers is written expression, which is also covered by copyright.

This is a tricky question because the law changes frequently.  (The running legal joke is that length of copyright follows the “Mickey Mouse rule” in that coverage is extended continually so that lovable cartoon mouse will always be copyrighted.)  A more specific answer can be found in the FAQ section of the U.S. Copyright Office website.

The minute you write that last sentence and put down your pen, your work has gained certain rights under the copyright laws.  This is why you don’t need to tell agents or editors that your work is copyrighted because they already know that.  Caveat: while ownership of the copyright is automatic, you may not be able to collect all the damages if you don’t register it.

You can register with the U.S. Copyright Office.  Registering preserves some rights that you might not otherwise get, such as the right to sue for statutory damages (a fixed amount per work) and attorney’s fees.

Sorry, but that’s not how it works.   First of all, there isn’t really a copyright police (yes the FBI deals with copyright matters, but usually in the case of large scale criminal infringement) and the copyright office doesn’t enforce copyrights.  You’re probably wondering what the point of copyright is if it isn’t enforced.  What copyright means is if someone copies your work, you can take them to court and sue for damages or get an injunction.  (An injunction means that the offending party must stop doing what they are doing.)

Take-home Message:  Copyright is a property right to your work which you own automatically.  By registering it, you give yourself evidence of having created that work.  If someone copies your work, you can sue for damages or get them to stop their infringement.

As many of you already know, I’m married to a wonderful man who–for the purposes of this blog–is called lawyer hubby.  In fact, he’s an IP (intellectual property) litigator, which means he understands all that legal rigmarole that writers often fret about and he has actually represented authors in court.

Of course, I get to reap the benefits of his wisdom, but it hardly seems fair that I should be the only one.  Hence my new blog series for Tuesdays: Legally Speaking.  Starting this afternoon and going for the next few weeks, I’ll be doing a series of posts on the different aspects of copyright and legal stuff that writers should know about.  Lawyer hubby gave me a crash course and I’ve done my best to translate it from legal-speak to normal-people-speak.

That said, here’s iggi with his little Disclaimer poster.  I’m not a lawyer.  These posts should in no way be considered legal advice.  The point of these posts is to give my writer friends (that’s you!) some of the basic information so when you do seek legal advice from a lawyer, you can ask smart questions.