12.05.2006

More on copyright

Dear Royal Queen of Snarkyness,

I have a question about copyright.

If one of my short stories appears in a literary journal and that literary journal receives a collective copyright (for the specific edition of the journal), is my story protected individually? Once a story or poem appears in a literary journal, do I need then to apply for a copyright?

Also, I've noticed a number of internet businesses that are selling downloads of individual poems/articles, etc. Are they allowed to do so without the permission of the author? Or, once the poem/story/article appears in a journal, is it up for grabs?

The cost of applying for a copyright on an individual poem/story is 45$ per item- this would add up quickly. What's the best way to protect ones work once it is published. I'm concerned about keeping the rights to my work just in case my short story/poetry collection ever comes out.



You're laboring under some incorrect assumptions. Here's what happens with short stories.

YOU, the author, are the copyright holder. You retain your copyright even when you "sell" the story to the anthology because you really aren't selling the story, you are licensing it to the anthology for publication. The anthology does not apply for a copyright for the collection because they don't own your story; they are essentially renting it.

However, they charge money for the anthology (what you see as charging money online) and that is their income, not yours. Hopefully you get a piece of it (royalty), or you were paid a licensing fee ("advance" or "paid for your story" is how you hear that described). Yes, that's ok. It's like a book publisher printing copies of the book they have acquired from you.

Still confused? Ask away!

11 comments:

Anonymous said...

It was my understanding that the publisher could still copyright the 'collection' as a whole, while not actually copyrighting the individual works within it. Is that wrong?

amiguriken said...

You can get a copyright in a collective work such as an anthology. It doesn't cover the individual works as individual works (the author still retains the copyright in his/her own work unless he/she signs those rights over to the anthology publisher) but covers the editors' original work: the selection of the individual works, the order in which they appear, etc.

And you don't need to pay to copyright things--you have a copyright the moment you've written something. I have a common-law copyright on this! You pay to register your copyright. Registration gives you more rights in court as well as a presumption that you have a legitimate copyright. In the case of the anthology, I think the larger work would help protect the individual poem--it would be evidence of the poem's copyright if nothing else.

If you're really concerned that your poems are going to be stolen out from under you and you're going to need to bring suit against the thieves in federal court, by all means, pay the money and register each individual poem.

Don said...

Amiguriken is correct: There is a copyright on collections of works, which covers the particular assemblage of individually-copyrighted works. I forget the exact legal verbage that accompanies this (I believe it's copyright as compilation or somesuch. If I were less lazy, I'd walk across the room to loook at one of the old magazines I edited to see what we used back then).

It used to be (long ago) that some magazine publishers bought the copyright from the author, but that hasn't been the case for many many decades.

I'd add that if you're concerned that your poems are going to be stolen out from under you that you have grossly overestimated the market for poetry.

nice anonymous said...

The stories are still your own, as others have explained. I don't know if this is a legal or simply a professional courtesy -- but when your book of short stories (or poems) finally appears, there ought to be a page or at least a few lines of acknowledgment, which will stay something like: "Stories in this collection previously appeared in other publications: XXX appeared in Ploughshares, under the title XXX; XXX and XXX appeared in the New Yorker; and an earlier version of XXX appeared in the Atlantic." Sometimes the journals will suggest that you use specific language to acknowledge the earlier instance of publication.

C.E. Petit said...

This is a difficult question... whatever it really was.

No, the compilation copyright does not grab the author's copyright. Absent an explicit transfer, the copyright remains the author's (I'm treating WFH as such a transfer for this purpose, although technically it's a different beast).

Neither, however, does the publication's certificate of registration act as a certificate of registration for the individual works to which the publication doesn't have the copyright. I've blawgged on this a couple of times before:
an initial note
the longer follow-up
That means that the author does need to register the copyright in the individual piece(s) before filing suit.

That does not mean $45 per story/poem, though. The Copyright Office allows group registrations of shorter works. One can create a "Kinko's Special" anthology of one's own works and register it as a group for a single $45 fee. There are some pitfalls to this for prolific authors, since one must ordinarily register a work within 90 days of publication to have absolute right to certain remedies, that might require filing a group registration four times a year rather than once a year. That's for another time, though... at my normal rates. ;-)

BitchySmurf said...

It's called a compilation copyright.

Unless you the above poster signed something which turned the copyright over to them, which I wouldn't think any reputable literary magazine would ask for.

Anonymous said...

Actually, the rights they got from you depend on the rights they got from you. It varies from pub to pub and only by reading the fine print of your agreement can you determine this. If the agreement was as simple as them saying "we'd like to publish your story in X", you still have all other rights. But some places have a long blurb that says they "require all rights", which means if you give them the piece you no longer have a copyright, they do. They can now reprint it anywhere, keep it on the web, sell it to Hollywood for a film, or whatever, and all you collect is glory.

Anonymous said...

I think the latest of the anonymouses above is wrong. Selling all rights is not the same as selling copyright, but it is a stupid thing to do.

Caitlin said...

I am an Australian living in the UK and in both those jurisdictions there is no such thing as "registering" a copyright. You register patents, trademarks etc but not copyrights as copyright is inherent in something from the time you write it and you have full rights under the law.

I have recently learned that it is a bit different in the States and that you still have these common-law rights but that you can also "register" a copyright. The disadvantage is obvious - it's time consuming and costs money. The advantage, from what others have said above, is that you have an automatic presumption of being the copyright owner and this has greater standing in court.

I would be interested to know when this is recommended (eg. maybe for novels but not short stories) and if there are any legal precedents of the copyright registration having been a definitive factor in a copyright case, as opposed to simply asserting your common-law rights. Is it genuinely useful for writers or is it a bureaucratic red herring?

What others have said about the ability to copyright an anthology certainly fits with my understanding of the law. This is similar to me as a journalist selling an article to a newspaper. I own the copyright to the original article but they own the rights to the edited version with their headlines and captions and typesetting and layout.

Caitlin said...

PS What Anonymouse said about the rights depending on what rights they acquired and many mags making a grab for 'all rights' is true, although more common for journalism than fiction. However, in the absence of any legal agreement, the default is that you retain copyright and they pay for one use. Anything else must be negotiated separately.

Of course, it's better to have an agreement to save you having to argue this in court.

Anonymous said...

Caitlin -- what a lot of technical questions. You should ask an attorney and/or read more. If you're a non-citizen writing outside the USA, I don't know if registering your work at the US Copyright Office could possibly be of any use to you at all, or if they can even accept it. I don't know what you can do instead. That issue isn't relevant to my situation so I've never researched it and have no clue.