Helen Sedwick on Seven Common (and Avoidable) Copyright Mistakes


Photo in jacket.original

Thanks to copyright expert attorney Helen Sedwick for this key information about copyright for authors.

 While speaking at a recent conference I asked the audience if anyone used song lyrics in their manuscripts. A third of the writers raised their hands. After all, well-placed lyrics create setting. A crooning Frank Sinatra places readers in a war-time romance, while a droning Jim Morrison transports them to a smoky love-in. When I explained that using lyrics may be infringement, an audible groan filled the room. One writer leaned forward and put his head between his hands. Using lyrics is one of the most common mistakes writers make. Our brains are so packed with familiar tunes, we forget someone owns them. The sad truth is even if you know every word of a Beatles’ song, you do not have the right to use a single line in your novel. If you are blogging or publishing (either traditionally or as an indie author), a little knowledge about copyright will save time, embarrassment and money. Here are some of the most common mistakes and how to avoid them.

Copyright Mistake One: “I can use a few lines of a song without permission.” Rarely true. If your use is fair use, then you may quote lyrics to the extent necessary for your purposes. For example, if you were writing about the treatment of women in songs written by Bob Dylan as compared to Eminen, you could use quite a few lines to make your point. Commentary and critiques are fair use. In contrast, using the same lyrics as “background” in a scene is not fair use. Legally speaking, there is no ‘so-small-no one-will-care” exception. Although the same rules apply to poetry and other works, writers should be particularly careful about lyrics. Most are owned by large music companies that aggressively search the internet for unauthorized users. Their lawyers demand hefty payments. There is a way around this problem; use song titles and names of the performers instead of lyrics. Neither titles nor names are protected by copyright. Although using a song title may not be as poetic as lyrics, it is far better than losing the reference entirely. Just don’t go so far that it appears your work is endorsed or connected with those performers. That would invite a lawyer letter. Or get permission to use the lyrics. It’s often affordable. Information on how to get permission is below.

Copyright Mistake Two: “If I give the original writer credit, it’s not infringement.” Not true. While it is ethical and fair to give credit to the original creator, attribution alone is not enough. To avoid infringement, you need actual permission from the copyright owner.

Copyright Mistake Three: “If there is no copyright notice on a work, then I can use it without permission.” Not true. If the work was created on or after March 1, 1989, then the work may be copyright protected even it is missing a copyright notice. For older works, it depends whether the work is in the public domain. Determining what’s in the public domain can be tricky. As of today, copyrights on works first published in the United States before January 1, 1923 have expired. For other works, you’ll have to do research.

Copyright Mistake Four: “Since copyright law protects my work automatically, I do not need to register it with the U.S. Copyright office.” Technically true, but registration is recommended. Your work is protected by copyright as soon as it is “fixed” into a tangible medium, such as a pad of paper or a computer hard drive. Registration is not required. But for $35, it’s worth it. You may register a copyright anytime within its lifetime (currently, life of the author plus 70 years). In fact, you must register your copyright before you can sue someone for infringement. There are extra benefits if you register within three months after the date of first publication. You have the right to recover statutory damages, meaning you do not have to prove lost sales. Statutory damages are between $750 to $30,000 per work (and up to $150,000 per work if the infringement was willful). Plus, you may recover attorney’s fees and costs, making it easier to hire a lawyer on a contingency fee basis. Even if you miss that three-month window, register your copyright.

Copyright Mistake Five: “I can’t use the names of real people or products in my work.” Not true. Writers may use the names of real people and products if the use is incidental to the story. For instance, it would be risky to write a book if your main character is Bradley Cooper. But if your main character has a crush on Bradley Cooper and talks about him incessantly, that’s acceptable, at least under U.S. law. Similarly, your characters could be drinking Cokes, thumbing their IPhones and wearing Birkenstock sandals. But I would avoid putting a trademarked name in your title without consulting an intellectual property attorney.

Copyright Mistake Six: “I don’t need to worry about people suing me for infringement if I’m traditionally published. My publisher will let me know if I need to fix anything, and will take care of any legal costs.” Don’t count on it. Publishing companies always expect writers to obtain all necessary permissions. Some may occasionally pay for a legal vetting of a manuscript, and most major houses will include authors on the publisher’s insurance policy, but ultimately the financial and legal burden of copyright infringement will fall on your shoulders.   If you read a publishing contract, you’ll see sections titled “Representations and Warranties” and “Indemnification.” The gist of these provisions is you guarantee your work is non-infringing. If you’re wrong, then you agree to pay the publishing company’s liabilities and its legal bills. Most intellectual property attorneys charge more than $500 per hour, enough to bankrupt most writers.

Copyright Mistake Seven: “It’s impossible to get permission, so I’ll take my chances.” Bad idea. Many writers take this risk, especially if they expect to sell only a few books. I call that planning for failure. If you want to plan for success, then research who owns the copyrights and obtain permission. On my website, I list dozens of resources for researching ownership. I am also writing two ebook singles:

  • How to get Permission to use Eye-Catching Images Without Paying a Fortune or a Lawyer, and
  • How to get Permission to use Memorable Lyrics Without Paying a Fortune or a Lawyer.

Sign up for my newsletter, and I’ll send the materials to you for free. For more information on protecting your rights and your wallet please check out my book Self-Publisher’s Legal Handbook or my blog at http://helensedwick.com/blog/

Website http://helensedwick.com/

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Facebook fan page: https://www.facebook.com/helensedwickauthor LH-FrontCover-8-19-14-rgb   Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.

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