Interviewee: Someone could bind my book to fine print, and they could send it out to a hundred different people, and nobody’s ever gonna pay me for it. That’s copyright infringement.
Ron Pramschufer: This is Ron Pramschufer, and welcome to Publish Basics Radio, where weekly we try to help you navigate the self publishing minefield. Mark, let’s talk a little bit about copyrights. You’re a copyright attorney, right? Correct? Okay, what is a copyright?
Interviewee: Well a copyright protects any kind of expression put in any kind of a fixed format. So if you write something on a napkin, it’s copyrighted the minute you put it on the napkin. If you type up a screenplay on your computer, the minute you type it onto the screen, there’s a copyright. The difference between what’s called a common law copyright, which is what that is, and a federal registered copyright, is the registration with the U.S. Copyright Office.
Ron Pramschufer: Okay, technically you’re copyrighted as soon as you write it. But what’s the difference between writing it on the napkin, and filing it down in Washington?
Interviewee: Well the biggest difference is you really don’t have much protection when you do what’s called the common law copyright. By registering it with the Copyright Office, number one, it allows you to bring a copyright suit in federal court. If you’re not registered with the Copyright Office, and let’s say you take my book to fine print. And you start selling it on your own, and I go to sue you, and I haven’t registered with the copyright office. I can’t sue you in federal court until I register. So that’s the first very important advantage.
The second one is there’s a lot of statutory damages and awards that I can get when I’m registered with the copyright office. For instance I can get all my costs and attorney’s fees. Where if I’m not registered, there’s no way I could ever get that in a regular copyright suit.
Also, the damages— Well let’s say you start selling the fine print, and you know, you don’t sell very much of it. But if your conduct is so egregious, I can go and ask a court to award me up to thirty thousand dollars per infringing act. So those are probably the three main reasons to get the federal protection.
Ron Pramschufer: Okay. Alright. So let me give you a little scenario here. I’ve just finished my manuscript. Alright? I send a copy of it by email to a friend of mine. Next thing you know, I see my book being advertised on the internet. Three weeks later, I see, you know, my book is like a storyline on Law & Order. What can I do?
Interviewee: Well let’s say you didn’t file a copyright with the Copyright Office. If that’s the case, you could still sue those people for infringement. But the only thing you would ever be able to collect is whatever the actual damages are, which may be somewhat hard to quantify. And of course, you’d have to prove the chain of title.
Ron Pramschufer: Okay, how about— I read around about poor man’s copyright, or whatever, where you mail the manuscript to yourself or something. Does that work?
Interviewee: The poor man’s copyright was probably a good idea maybe seventy years ago when you didn’t have the kind of sophisticated technology you have today. Because all that really proves is that you stuck something in an envelope and sent it to yourself. You know today I could doctor up an envelope. I could unseal it. I could seal it back up. I could make it look like I sent it ten years ago. I could do anything. So to go through that effort, and do that to yourself, you might as well do it the right way.
I mean filing a copyright is not a very expensive process. So to do it that way— You would probably spend, if you had to go to court— you would spend more in court to prove that the envelope was never unsealed. You know? You’d have to get some kind of expert who could look at how an envelope was sealed. I mean it would be ridiculous.
Ron Pramschufer: Uh-huh. You were mentioning it would be good seventy years ago, maybe. Remind me, how long does copyright last?
Interviewee: Copyright lasts for the life of the author plus seventy years.
Ron Pramschufer: Okay, and is that something that just—
Interviewee: Yeah it’s changed. It used to be fifty years. And it’s a little bit different. If a corporation owns the copyright, it’s even longer than that. I think it’s ninety-five years. So if let’s say you and I both write a book, and one of us dies, and the other one lives another fifty years. The copyright goes for seventy years after the death of the last owner of the copyright. So if you and I co-owned it, buy I die and you continue living, the copyright goes until you die, and then another seventy years.
Ron Pramschufer: Okay. So it sort of passes on to one set of heirs, in a way.
Interviewee: Right. That’s why it’s written like that. After that it goes into the public domain, and anybody can use it.
Ron Pramschufer: Okay, so like with Mark Twain and Edgar Allen Poe, whatever, I can publish my edition of Huckleberry Finn.
Interviewee: Anybody can now. There’s no— Those are long since in the public domain.
Ron Pramschufer: Now how much—? Just out of curiosity— I mean we’re saying it doesn’t cost that much. How much does it cost to register a copyright?
Interviewee: Well to register it with just the government, yourself. You go do the work. You find the right form. You figure out how to do it. It cost thirty dollars. You know services like ours— I suppose if you just walked into a law office in New York City, it’s probably five hundred dollars.
Ron Pramschufer: Okay.
Interviewee: If you use a service like ours, it’s— including the filing fee— a hundred dollars.
Ron Pramschufer: So the real hard core do-it-yourselfer can go right to the copyright office and do it.
Ron Pramschufer: Okay you provide— Basically the value added is—
Interviewee: The value-added service that our company—
Ron Pramschufer: You do it for ‘em.
Interviewee: We do it for ‘em. We tell ‘em exactly how it has to be submitted to the copyright office, how many copies, in what format. And a lot of that depends on if the work is published or not published. What we do is we make the process a very simple one, so you don’t have to think to hard about— Okay did I fill this in right? Should I have done something else? Should I have explained it differently? I mean that’s— Now if that’s worth sixty-seven dollars to you, because that’s what we charge, then—
Ron Pramschufer: Yeah, I mean it’s a smallish amount. And really I mean one of the biggest problems I run into with small publishers, self publishers in particular, is they spend so much time on these little, little items, and they don’t realize they’ve got to spend most of their time on marketing.
I mean that’s the one thing they can’t buy. You know? They got to go do it themselves. And they’ve already used up all their energy on this little nitty gritty stuff. You know? So it sounds like a pretty good service that you all offer. Now how common are like copyright infringements, or actionable copyright infringement. I mean copyright infringement goes on all the time, I guess.
Interviewee: I can’t tell you the amount of cases that actually make it to court. But you know it happens more frequently, certainly in the movie industry. I mean every once in a while you hear about the guy who had the— submitted a treatment for some kind of movie, and then they didn’t take the treatment. And then all of a sudden it became a movie. I mean you see that. You see some kind of—
There were some big copyright cases. I mean I’m trying to think back now to when I was in law school, that we always would talk about. Where there was some music infringement, where somebody took some really identifiable bars of a song and put it in their song. Or a few words. And there were some suits over that. Of course there’s copyright infringement in all sorts of software, and all that kind of stuff.
Ron Pramschufer: Yeah, it doesn’t seem to hit books that often. I mean I just don’t hear about it.
Interviewee: You don’t see it very often. And today what you see a lot is somebody in some country that you couldn’t get to, someone steals your work, and they’re selling it off some server in the Soviet Union. And you know you can try to get them shut down. Their ISP will shut ‘em down.
But you can’t prevent copyright infringement. I mean it’s pretty hard to do. So what you have to do is protect yourself the best way that you can. I mean someone could bind my book to fine print, and they could send it out to a hundred different people, and nobody’s ever gonna pay me for it. That’s copyright infringement.
Ron Pramschufer: Uh-huh.
Interviewee: But I’m not gonna spend any time worrying about it.
Ron Pramschufer: Well I think even more common that that— I mean go to a public library. They’ve got fifteen coin-operated copy machines there. They have the big sign. Don’t copy copyrighted material.
Interviewee: Some libraries, and a lot of now fotomats, and those kind of places, they’re more nervous. In Kinko’s, they may not even make a copy of something that they believe to be copyrighted, because they’re so afraid of being sued. But you know, in the world of book publishing, you probably don’t see it very often. I mean I don’t know of any specific case, and no author I’ve ever dealt with has had that problem. A lot of people think, boy my stuff is great, and somebody’s gonna steal it the minute they see it. But that’s not— That’s not the real world. That’s maybe our own narcissistic belief in how good we all are.
Ron Pramschufer: I mean I have like one real world experience. Back when I had a little publishing company thirty years ago. And it was a technical rendering that I had in one of the books that we published. And a British publisher picked it up. And I saw it. There it was.
I mean I spent like three thousand dollars on this drawing, and there it was in their book. But it was only on one page of the book. And I was told by the copyright attorney back then— I don’t know whether it’s changed now or not, that that was one drawing out of a two hundred page book. And yes, I could go after him. And yes, maybe I could win. But it wouldn’t be worth the money.
Ron Pramschufer: So that was with a country that’s within our copyright conventions and everything. It seemed pretty blatant to me. You know? There’s our technical drawing.
Interviewee: Well in a case like that, and it’s hard without knowing all the facts— There’s too many things to say well yeah, you could probably win, and what it would cost. But yeah, in a case like that, where you have a three thousand dollar drawing, but now it’s all of a sudden appearing in a hundred thousand books.
That’s one of the great facets of the U.S. copyright law— is if you could sue ‘em in U.S. federal court, you can go to the judge and say, “Look, this is a technical rendering, obviously mine. Here’s the chain of ownership. This is only mine. Nobody else could have had it. These people have now had it in a hundred thousand books. So you know I would like to get statutory damages. I don’t know if you take one page out of two hundred pages. And I don’t know how important that one drawing is to the whole scope of the book. But judge, I’m asking you to say look, these people blatantly stole my work, and I want to be compensated. Not on my actual damages, but I want to be compensated on statutory damages. So I think I should get five hundred dollars for every time they sold the book.”
And maybe I warned ‘em. Maybe I sent them a letter and said, “This is my copyrighted material, and they kept using it.” Those kind of things, you always want to do. If you know somebody is in breach of your copyright, you should contact them immediately. Because that helps to establish the egregiousness of the other person’s behavior.
Ron Pramschufer: Alright. Well Mark, it’s been real nice talking to you. I’ll keep my eye on you folks.
Interviewee: Thank you very much.
Ron Pramschufer: Take care now. For Publishing Basics Radio, this is Ron Pramschufer. See you next week.
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