Courtney Lytle gave an enlightening, but frightening, come-to-[divinity of choice] cautionary talk to writers and alumni attending the Dragon Con Writer’s Two-Day Intensive Workshop directed by author Jody Lynn Nye. A partner at Culhane Meadows PLLC in Atlanta and an adjunct professor at Emory University School of Law, Lytle regularly works with copyright and other intellectual property issues.
Write your own work, she advised. It’s okay to be inspired by other writers and artists, but don’t steal from them.
Lytle assured that your expression is covered by copyright when it’s “fixed.” Nye joked about fixing a work by writing with a quill pen on vellum. Lytle said that your work can also be fixed if it is audio-recorded. She cited Section 106 of the Copyright Act of 1976, effective in 1978, as covering rights protected, including making copies, distributing, and creating works that are derived from other copyrighted material. She gave Disney on Ice as an example of a derivative work. If you get an author to agree that you can create a derivative work from that author’s copyrighted material, that’s not infringement. But beware, she warned. Claiming fair use will not protect you.
Fair use is not a protected right like free speech or the right of association. Fair use is an affirmative defense that may be used to defend you when you are sued for infringement of another’s copyright and are already in court. But, Lytle suggested, you don’t want to be forced to pay an attorney $800 to $900 per hour both in a trial and for out-of-court time. And for every hour spent in court, an attorney may spend three hours or more in preparation. Fair use is great until you care about someone stealing your own work, she said.
Fair use generates lots of propaganda. Lytle chuckled about disclaimers that pilfered materials are fair use and not infringement. She compared it to borrowing someone else’s car without permission and claiming that wasn’t theft. Lytle counseled to be sure to have permission or clearance before you include someone else’s work in your own. Nye stressed that fan fiction is not fair use. Lytle agreed.
An attending writer asked whether use of another’s copyrighted work was infringement if it was not paid for?
Lytle said yes, copyright infringement for no pay was still infringement. As an example, she cited the case of a young fan who wrote a good Harry Potter encyclopedia and published it online for free. Everything was okay until he was sued. The fan-created encyclopedia was a derivative work and his encyclopedia competed with a pending project of the copyright holder. Parody is more likely to be fair use, and has more protection than fan fiction.
Book reviews can also quote from a copyrighted work but not publish wholesale reprints of essential portions.
The federal government’s official site for the registrar of copyright is copyright.gov. Lytle said that you can prepare your own form and that completion of registration for literary works is easy. The Copyright Office will answer questions about the registration forms and process.
However, she cautioned, if you send your work to an acquiring editor, don’t include a copyright notice as it will [expletive deleted] the editor.
If you do publish on your own, she said to include the copyright notice. This helps to stop infringers as it puts them on notice that you are claiming the copyright in your work. Lytle recommended that even if your novel is not completed to still file the copyright registration. Early registration protects more rights.
She explained that although copyright does not protect titles or short pithy sayings, trademark does.
Lytle and Nye answered additional questions from attending writers about other aspects of copyright protection, permissions, and contracts.