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 Copyright and Other Rights

Overview of Copyright: Basic, Terms of Copyright, What is Copyright?
Other Rights: Re Notices, Rights (all, first serial, second serial, simultaneous, work-for-hire),
Ideas, Titles, Charts & Lists, Letters, Fair Use, Electronic Rights

An Overview of Copyright
by Gloria T. Delamar

Basic Copyright Dates
The current Copyright Law, passed in 1976, went into effect January 1, 1978 (last major revision was March 1989, though there have been some minor changes since then, including a review of fee schedules in July, 2002.). In 1989, the U. S. joined the international Berne Convention. The previous U. S. Copyright Law of 1909 provided for initial copyright of 28 years, plus renewal of another 28 (total of 56 years protection). Interim extensions, from 1965 on, protected works while the new law was being formulated. 
The current law protects works from the time of creation to 50 years after the author's death; in the case of co-authors, protection lasts until 50 years after the death of the last surviving author; for anonymous or pseudonymous, or works-for- hire, protection is for 100 years from creation or 75 years from publication, whichever comes first. 

Provisions for extended copyright coverage for works that might have gone into public domain are reflected in the breakdowns below. (Note: There are exceptions for specific works, those of Mary Baker Eddy for instance, passed by congressional law.) The Copyright Office will examine the status of a work for a fee and also permits personal on-site searches. Most works fall within the standards given below. 

Thus, Varying Terms of Copyright Currrently in Place:

Copyrighted (published) before September 19, 1906
- in permanent public domain in the U.S.

Copyrighted (published) between Sept. 19, 1906 - Dec. 31, 1949
some ramifications exist with removal of requirement to officially renew, passed in 1992; assume renewal)
- if not renewed: expiration 28 years after date first secured
- if renewed: copyright lasts 75 years from end of year secured
Examples:
copyright 1907 + 75 = copyright expiration end of 1982
copyright 1924 + 75 = copyright expiration end of 1999
(thus: public domain in 2000 if published before 1925, unless covered by a special act of congress) copyright 1949 + 75 = copyright expiration end of 2024

Copyrighted (published) between Jan. 1, 1950 - Dec. 31, 1977
- if not renewed: expiration 28 years after date first secured (but you're safer to assume renewal) 
Examples:
copyright 1950 + 28 = copyright expiration end of 1978
copyright 1977 + 28 = copyright expiration end of 2005
- if renewed: expiration 75 years from end of year first secured
Examples:
copyright 1950 + 75 = copyright expiration end of 2025
copyright 1977 + 75 = copyright expiration end of 2052

Copyrighted after January 1, 1978
- copyright expires 50 years after death of author or last living co-author. 

What Is Copyright?
A copyright is actually a group of five basic rights, sometimes overlapping: Reproduction; Adaptation; Distribution; Performance; Display. 
Note: even if works were "created" long ago, they are not in public domain if not previously published--thus, "lost works" of nineteenth century writers are not automatically in public domain--permission from heirs must be secured for publication. 

It is not necessary to register manuscripts. Works created today are automatically protected by copyright, even if not published. Registration with the copyright office is a formality that is necessary only if legal actions are to be initiated. 

Form TX is for published and unpublished non-dramatic works (text); form PA is for published and unpublished works of the performing arts; form VA is for visual arts, such as photographs, illustrations, or paintings. The fee, as of July 2002, is $30 for a book or group of articles. 

This broad overview of a complex law covers the basics; it should not be considered in lieu of legal advice; there are numerous exceptions and qualifications. For a copy of the Copyright Law (or numerous pamphlets that explain it) write to: 

Register of Copyrights
Library of Congress
101 Independence Ave. S.E.
Washington DC 20559-6000 

Form Hotline (202-707-9100)
Public Information Office (202-707-3000)
Web site (http://lcweb.loc.gov/copyright/). 

-  © Gloria T. Delamar
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Overview of Other Rights that Affect Writers
by Gloria T. Delamar

General Comment
Writers, especially unestablished ones, are frequently concerned about having their works stolen. Yes, it does happen, but the fact is that no reputable publisher would steal a work--and why would a writer send something to an unreputable publisher? Actually, most writers should be concerned that they themselves do not infringe on someone else's creation. 

There's a saying that "in fiction, it's called plagiarism; in nonfiction, it's called research." This is an oversimplication, but notable. Plots are basically few, but the way the fiction is played out can be close to plagiarism if the author does not bring enough originality to the work. If a nonfiction writer uses someone else's findings, the information should be referenced, whether quoted directly or paraphrased. 

"Do unto others' works as you would have them do unto your own."

Copyright Notices
Some writers put copyright notices on manuscripts they submit; this is a matter of choice, not necessity. Works written for distribution, such as handouts, frequently have a copyright notice on them. The usual form is "copyright © 20XX Writer's Name." The small "c" within a circle is the international copyright symbol. 

Some writers mail a copy of a manuscript to themselves in order to establish a date of creation, and file the postmarked envelope unopened. This is not necessary. On the other hand, if you feel more comfortable by doing it, go right ahead. 

Most book publishers copyright books in the author's name; writers should check book contracts to be sure they do not state that copyright will be in the publisher's name. Any wording- changes should be made before signing. It's important to retain book rights in your own name, as the copyright holder has the right to further use of the material, including reprint, performance, etc. (However, it's usual for a contract to spell out a division of reprint or excerpt remuneration. In the working situation, the publisher usually takes responsibility for selling reprints/excerpts and the writer then receives his/her share of the payment.) 
 
 

Various Specific Rights

All Rights
The law says that magazines and newspapers have the right to only one-time publication-use of articles they purchase. Many, however, still send contracts that state they are buying "all rights"; changes can be written in and initialed; some editors accept the changes as inserted and others rewrite the contract striking the all rights clause; some may refuse to strike the clause. 

First Serial Rights
The term "serial" means publications that appear in a series, ie. newpapers and magazines. 
Some writers like to put "Offered for First North American Serial Rights" (this covers the U. S. and Canada) above the estimated words in the top right of the title page, in order to give advance notice that they are not willing to sell all rights. 

Portions of unpublished books, not previously in serial format, are also sold under "first serial rights." 

Second Serial Rights
"Second Serial Rights" refers to reprints of published books, or to articles, short stories, or poems that previously appeared in another newspaper or magazine. 

Simultaneous Rights
The term "Simultaneous Rights" applies to material sold simultaneously to publications which do not have overlapping circulations such as religious publications (holiday stories; general religious material) and newspapers (features; travel pieces; opeds). If you put the words "exclusive to your circulation area" in the upper right hand corner of your manuscript, it effectively gives notice that you're sending the piece to more than one publisher, but not one whose circulation overlaps. They understand this terminology and it enables you to sell the work to more than one publication. 

Work-for-Hire
Some magazines still try to intimidate writers into a "work- for-hire" claus, which means the publication buys all rights. "Work-for-hire" is supposed to indicate that the writer is being paid to create the material as a staff writer and that the end result belongs to the company. Congress specifically addressed this concern and ruled that only true employees of publications could be classified under "work-for-hire."

Beginning writers, in particular, are at a disadvantage; it's important to get publication credits. Sometimes the decision must be to sell all rights. Many professionals refuse to submit work to publications with "all rights" or "work-for-hire" policies. 

Miscellaneous

Ideas
Ideas cannot be copyrighted--only the specific way they are expressed can be protected. 

Titles
Titles cannot be copyrighted. Famous titles, such as Gone with the Wind, have some "fair trade" protection. Writers are free to use titles that already have been used for other books, short stories, poems, etc. but should stick to obscure ones. (Occasionally, some "titles" are actually trademark-registered; if so, they generally appear with a small circled "T" at the end.) 

Charts, calendars, mere lists, etc.
Charts, calendars, mere lists, etc. cannot be copyrighted. (Some lists are actually text--narrative exposition--thus subject to copyright protection.) 

Letters
Letters have a special protection. The content of a letter belongs to the writer. The actual physical letter may belong to someone else, but the text, the written matter, cannot be quoted or published without permission of the creator. This is a little- known ramification of copyright protection; writers should beware of infringing. 

Fair Use
"Fair use" is a term that covers quoted material. Despite the often-heard rule that 400 words are considered fair use, there is no law that stipulates exactly how much can be quoted. Though 300 words of a short poem would be an infringement, 300 words from a book might not be. Factors considered are the purpose and character of the use, nature of the work, the amount and substantiality of the use, and its effect on the market for the original work. The intent of the writer using the quote is also at issue. Works of literary criticism are given considerable latitude. 

Electronic Rights
Electronic Rights govern publication on the Internet and World Wide Web. Actually, the same rights apply as those for print; the writer's work is protected. The fact that something is posted electronically does not place it in public domain. Also, writers should be further compensated and sign a release form if a print-magazine electronically re-publishes an original work of the author's. 

The Authors Guild has issued an alert to writers about electronic rights. Some publishers are automatically giving reproduction rights for previously published magazine articles for online accessibility on various computer networks or for special-edition CD-ROMs. 

Certain magazines have already used works, for which they in turn received royalities, without giving the writers their share of such income. As writer's organizations have identified the problem, more magazines are now negotiating electronic rights. Depending on the nature of the work, writers will have to decide for themselves if a royalty recompense or an outright fee (perhaps for one-time rights) is the appropriate return. 

Both the Authors Guild and the American Society of Journalists and Authors take the stance, "In this struggle, recognition of the simple legal principle that every electronic publishing right initially vests in the creator until is it expressly granted to someone else is crucial." 

The issue is complex, but the gist of it is that writers should not sign away their interests in future electronic rights. Then, when their work is wanted for on-line or CD-ROM use, they should negotiate for fair payment. Read all contracts carefully. 

The "up" side is that many writers are now receiving bonus payments for articles written years ago--that's GOOD news. 

- © Gloria T. Delamar
For further information see the Copyright,  Library of Congress Copyright Web Site. 
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