4.01.2006

Half crazy after all these years

Dear Miss Snark,

I have a really stupid question to kick off the April Fool's weekend so it might be best to pass it on to Killer Yap when he is finished with his morning munchies, but before he puts on his pink tam - Shiver - and heads out for his morning constitutional.

If a ms is copyrighted after it has been written as a memoir and then is rewritten as fiction, retaining only about 50% of the original story, with a different POV and a new title, is it still protected by the original copyright?

I understand the part about copyright attaching as soon as pen is put to paper. I'm wondering from a legal point of view what the cut-off is with regards to how much of the material may be changed before a ms is considered an entirely new entity that would require a new copyright?

Thanks in advance for the anticipated beatdown.

Hugs to KY,


Miss Snark is NOT giving legal advice here, let's all be clear about that.

You're correct that copyright attaches as soon as the word is put to paper. Thus, all your work is yours, no matter how what state of completion or transformation from memoir to fiction applies. Your draft pages are yours, as is your finished product. Copyright is a state of being, like life. You are alive, or you are not. Your work has copyright or it doesn't. "Half copyright" like "Half dead" is a metaphor no matter what you look like first thing in the morning.

Applying for a copyright from the copyright office is part of the publication process. If you've published a memoir, and rewrite it as fiction, copyright exists at all stages of the rewrite. If you publish the fiction, you'll apply for a copyright on that because it's a new book. If none of this is ever published, you still HAVE copyright on all your work.

Now, on to simpler things like cold fusion.

3 comments:

Cheryl Mills said...

James Frey? Is that you? I didn't know you read Miss Snark!

James (not Bond) said...

Yes, it's me. But I honestly didn't think you'd catch me that quickly. Look how long it took Nan and Oprah.

C.E. Petit said...

I think there's a little confusion on the difference between "copyright" and "registering the copyight." The concern that seems to be lurking under the author's question is "what's the effective date of my copyright protection for the second work, and if it's backdated to the first date does that shorten my copyright period?" These were legitimate concerns under the 1909 Act, but the 1976 Act has eliminated them. (Unfortunately, a lot of writing books out there still draw part or all of their discussion of copyright from the 1909 Act.)

Under the 1975 Act, copyright exists from the moment the work is "fixed." That means any fixed form, usually a word processor in this day—but it might include being scratched into a tabletop at a local bar. (Don't laugh too hard… the tabletop was admitted as evidence.) Under the 1909 Act, though, copyright existed only upon registration. That's the continuing source of confusion. Under the 1976 Act, failure to register just means you can't get into court (at least not until you do register); under the 1909 Act, failure to register means failure of copyright.

And registering a manuscript is (or at least should be) an extremely rare event. But that's for another time.