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B&N Week 65: Copyright Time

| March 20, 2012 | 15 Comments

Hello, and welcome to another glorious Tuesday! I’ve a lot to cover this week, so no flowery intro’s. This week, it’s all about the Copyright, so let’s get into the Bolts & Nuts of that.

Yes, this may be boring to most of you, but it is also important. Make sure you have your listening caps on.

For today’s discussion, I’m going to assume one thing, and one thing only: you’re creating in the United States. If you’re creating in a different country, none of this is going to apply to you. [Maybe if you’re part of a treaty nation, but your mileage may vary.]

When it comes to copyright, your ideas are protected as soon as you put them into a fixed form. Let’s take Pen-Man. You’ve been thinking about him for a long time, but don’t have anything on paper or in a computer. It’s all in your head. Then, someone else comes along and publishes Pen-Man. Know what? As soon as they put pen to paper [or fingers to keyboard], they were protected, and you’re out of the concept of Pen-Man. It now belongs to them.

The “fixed form” is very important. You cannot copyright an idea. It has to be in a fixed form—tangible. Someone else needs to be able to see it. So you either write it down, or you put it in a computer. You’re protected automatically, without telling anyone at all.

[Le huh? How’s that possible? What about filing for the copyright notice?] Yeah, it makes little sense. I won’t lie. But US law specifically allows for it. Now, you could submit the fixed-form idea for registration [paying a fee of about $35], which will allow you to use a type of notation we’ll get into later.

Copyright is all about protecting the author’s original work. According to the US Copyright Office, this covers “literary, dramatic, musical, artistic, and certain intellectual works.”

Copyrights generally last for the life of the author, plus 70 years, unless it is passed to someone such as an heir. [There is a thought that the extension is due to the Disney corporation not wanting Mickey Mouse to go into the public domain. The length of the copyright used to be about 20 years after the author’s death. Walt Disney died in 1966, and under the current law, Mickey isn’t due to hit the public domain until 2036. If it gets extended again before then, then you’ll have your answer.]

Anyway, a lot of you are copyright infringers. A lot of you. Yes, you. I’m looking right at ya. (Why?) Because you want to include lyrics to songs you love or are popular in your comic scripts, and you didn’t get permission. Permission is given in one of two ways: the original author either says yes [which could be easy if they’re not that big/popular], or you have to pay a fee for a license [which happens much more often]. Every time you put song lyrics that you didn’t write into a script and you don’t have permission, you’re opening yourself up to be sued. Don’t get sued. Stop infringing.

The same goes for artists. Every time you create and sell a print/sketch of a character you don’t own and for which you don’t have permission, you’re infringing.

The big news about this is Gary Friedrich, the creator of Ghost Rider. He sued Marvel over the movie and lost, and Marvel sued him for creating reproductions of their licensed character, and won to the tune of $17k. Now, Joe Quesada [Chief Creative Officer of Marvel] and Dan Buckley [Publisher of Marvel] have publicly said they are not in the business of suing artists for selling depictions of their characters in Artist Alley, but Marvel is now owned by Disney, and you don’t often see artists selling depictions of Mickey, because Disney is sue-happy. [First, generally, you’ll get a Cease and Desist letter first. Ignore it to your peril.]

So, if things are protected by copyright as soon as they’re in a fixed form, how do magazines, newspapers, and others get away with using copyrighted characters? No, they don’t have licenses, and they don’t have permission.

What they have are exceptions.

There are protections for the protections of copyright. They are fair use, freedom of speech, market failure, education, and equality of access.

You’re not going to be concerned overmuch with most of that. The one you’re going to be most concerned with is Fair Use. Fair Use includes commentary, criticism, news reporting, research, teaching, library archiving, and scholarship. Fair Use generally also covers parody [poking fun of the thing itself] but not satire [using the thing to comment/poke fun of something else]. Notice I said “generally.” The courts can always start covering satire, but in general, they haven’t yet.

Now, parody is coverable basically only once. Think of it as a one-time “get out of jail free” card. If you keep going back to one particular well, you’re going to be infringing, and will open yourself up to a suit.

So, since you can claim a copyright as soon as you have your ideas in a fixed form, you can use a symbol to show you claim copyright. That symbol, for most things, will be the letter “c” in a circle, like this ©. If you decide to send it in to the Copyright Office and pay the fee to register it [it’s a little more involved than that, but that’s the gist], you can then use a different symbol, the letter “R” in a circle, like this ®.

For comics, you’d put this info in the minutia you find on either the first page, or the credits page. That small print that you never read? That’s where it would go, along with the year. As an example, this site would read something like ComixTribe © 2011-2012.

Do you know everything you need to know about copyrights? No, not at all. You know just enough to be dangerous. There are a few things I want you to take away from this, though.

  • In the United States, your work is protected as soon as you put it in a fixed form.
  • Unless you have permission [and explicit “yes” from the copyright holder or paid a fee for a license], you will be infringing if you put song lyrics you didn’t write in your comic.
  • There are exceptions to copyright, and the one that will be of concern to most of you is Fair Use, with the parody subset. [Don’t forget scholarship, either. That can be powerful, as well.]
  • You do not need to register in order to claim copyright [but registering helps].

Now, here are the most important things I want you to know about this entire article: you can always go to the US Copyright Office to get information. It will always be there for you. The second thing is that copyright is always being contested and revised. People are always doing something that calls into question copyright law. The biggest revisions were in music [rap music, to be exact, because of sampling].

One more word about copyright before I let you go.

There’s a method called the Poor Man’s Copyright that was being used to try to establish a timeline that something had been in someone’s possession for a certain amount of time. It works like this: you create the visual form of Pen-Man, but you don’t have the money for the fee in order to register it. Instead of sending it in to be registered, you then mail the sheet of paper to yourself, and you NEVER OPEN THE ENVELOPE.

The act of mailing puts a government stamp and date on the envelope, and as long as you never open the envelope, the theory goes, you won’t have any problems in proving you had the idea first, and therefore, you have the copyright.

This method may not hold up in a court of law today. A lot of it will depend upon the judge. [A judge that is not versed in copyright law may allow it—one that is may laugh you out of court.] The reasoning is simple.

Let’s say you mailed the visual of Pen-Man to yourself. There are various ways to unseal the envelope without it looking like the seal was broken. [A quick, simple method is to steam it open, or you could put the envelope in the freezer for an hour or so.] That’s if you want to go the long way around. The easy way? Just mail the unsealed envelope to yourself. Then you can stuff it with whatever you want, created whenever necessary, and then seal the envelope.

Because the methods of defeating the Poor Man’s Copyright are easy and well-known, I do not recommend using this method to try to protect yourself. If the judge allows it, consider yourself lucky. More than likely, you’re going to be out of luck with it.

That’s all I have for this week. Homework: go to the US Copyright Office and poke around. Do your own learning. Download the Copyright Basics pdf and read it. Stop infringing on other’s work by putting song lyrics in your scripts.

See you in seven!

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Category: Bolts & Nuts

About the Author ()

Steven is an editor/writer with such credits as Fallen Justice, the award nominated The Standard, and Bullet Time under his belt, as well as work published by DC Comics. Between he and his wife, there are 10 kids (!), so there is a lot of creativity all around him. Steven is also the editor in chief and co-creator of ComixTribe, whose mission statement is Creators Helping Creators Make Better Comics. If you're looking for editing, contact him at stevedforbes@gmail.com for rate inquiries.

Comments (15)

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  1. For us Canadians, copyright law is much the same: copyright is granted the moment a work is created, whether it’s published or not, as per the Copyright Act (http://laws-lois.justice.gc.ca/PDF/C-42.pdf). You can also register your copyright with the Canadian Intellectual Property Office to better enforce it (http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/home) but it’s not mandatory. That costs 50 bucks (Canadian, of course).

    One difference of note is that Canadian copyright extends no more than 50 years after the holder’s death, as opposed to the United States’ 70 years.

    Another difference I’ve noted is the idea of “moral righs”. “The concept of moral rights refers to the idea that an author has a separate right over their works, in addition to copyright. Despite any assignment or sale of copyright, the author retains their moral rights, a form of personal attachment to the works. Moral rights can only be waived. There are three attributes of moral rights: attribution, integrity and association. […] Moral rights allows the author of the work to determine how the work is being used and what the work is being associated to.” (http://en.wikipedia.org/wiki/Copyright_law_of_Canada#Moral_Rights)

    Now we just need Liam or John to tell us about UK law to make this article complete!

  2. Get permission to use song lyrics. People think I’m crazy but it MUST be done! Will you have to jump thru hoops? WIll you have to pay some fees? Yes, but those hoops and those fees are better now then when you have a hugely popular series and Bon Jovi on your doorstep asking for his money.

    I’ve got a cool project going on right now that deals with lyric usage. Anybody wants more info, hit me up.

    Don

    • That reminds me: the first comic script I’ve ever written was a straight-up adaptation of Leonard Cohen’s Famous Blue Raincoat. The lyrics literally were the captions throughout the whole comic.

      Needless to say I won’t EVER get this published. 😉

      • Why not? Who owns the publishing rights on the lyrics? I’ll check it out. The licenses can get pretty pricey but for some songs it’s worth it.

        My project is up on Kickstarter. If it’s successful I’m going to do a Volume #2. I’m going to keep returning Noel’s favor by finding new artists and writers to work on it. The only writing stipulations are that all dialog and captions be lyrics and imagery has to be inspired by the song.

        I’d like to see your script, Yannick, maybe it would fit in one of our volumes.

        I don’t know if Steven will get upset at this but here is the link to my site and the Kickstarter to learn more about the project.
        http://www.itslikethatstudios.com See the In The Works page
        http://www.kickstarter.com/projects/1983201915/mix-tape-volume-1-love-on-the-run

        He did just tell us all to hustle, though, so anyone else who reads this, check it out and tell your friends. Tweet it, Tumblr it, tell your Facespace friends!

        If I can return the favor, ask.
        Don

        • It’ll take more than this to make me upset.

          And now, to emails!

          • Liam Hayes says:

            Make use of women/woman incorrectly. That’ll make Steven weep tears of pure contempt. (It’s his Kryptonite.)

            Either that or he’ll come down on you with the wrath of Beelzebub in full claw gnashing, bone gnawing, red font of doom flinging fury. (I know from experience. And yes, I do still hear the screams.)

        • Keep in mind that I wrote this WAY before I found my way out of the rain and into Comixtribe. This script is DREADFUL.

          The core is good though and it might pull through with some major surgery.

          I’ll try and find it for you.

  3. Hope some of you guys check this out, cause I’d love to hear other opinions beyond my own.

    I’ve run into my first ever copyright issue… without even knowing it. I concocted a simple premiss. A group of preteen boys calling them selves ‘The Midnight Alliance’, investigate strange happenings and such. The things they investigate would largely be based off of urban legends and campfire stories.

    The first of these planned stories was based off of the internet urban legend, ‘Candle Cove’. I’ve spent a lot of time plotting out the story, writing short character sketches, and researching myths (Not to mention I spent hours writing a fictional theme song). Then I came across this:

    http://krisstraub.com/2010/11/27/regarding-candle-cove-2/#idc-container

    And it pretty much halted my work completely. Now I’m trying to figure out if I can tell the same story without it looking like ‘Candle Cove’, but I’m not sure I can completely, and I will have to probably begin from scratch with a different story to be the focus.

    The thing is, I don’t believe that anyone can own something like ‘Candle Cove’. Yes, we can trace the story to the author, but the nature of the story has grown to the point that its now far beyond ownership. He has created a campfire story for the internet, a stock joke to be told to children. What do you think? Is their certain things that can not be owned?

    • You’re in a quagmire, Conner.

      You know that the Candle Cove has an owner, so it isn’t an urban legend. It’s a story, made out of whole cloth.

      What you’re trying to do is justify not scrapping the work you’ve put in, so you can continue to do what you want to do. That would make you a damned dirty thief. Do you want to be a damned dirty thief? Of course not.

      Ask the author for permission. He said he isn’t an ogre. Just let him know what you want to do, get permission, and continue to march. If he says no, then you do the work to rework the story.

      Don’t be a coward (not asking for permission), don’t be a thief (doing it without permission), and don’t be lazy (doing it anyway because you don’t want to put in the work to make changes). You’re better than that.

  4. I’ve taken the time to rework it. I looked at what I had and said, “Whats really important?” ‘Candle Cove’ and the urban legends are not what the stories are about, they’re about the characters. And the pieces of ‘character’ intended for ‘Candle Cove’ can be adapted into another story.
    The only real loss is the time I spent on the project, and some of imagery that ‘Candle Cove’ provided. But neither of that is truly a loss, since any practice writing is worth the time, and ‘Candle Cove’ has set a bench mark for the level of creepyness I want to obtain.

  5. Sean Rutan says:

    Hmm, I just happened to find this article and now I’m confused. I’ll talk to a lawyer about my story directly but, in the meantime, you have years of practical experience and maybe you can help me to better understand.

    About a month ago, I asked a published comic writer if we needed to get permission to use catchphrases and references to pop culture in our scripts. His answer was a simple “No.” The question had occurred to me when I read the term “Jump the Shark” in a Captain America graphic novel.

    Is there a definitive difference between song lyrics and catchphrases from commercials, TV shows, and movies? Also, if we use a works cited and give credit for the references, does that mean anything in regards to infringement (i.e. paying homage and giving credit vs blatant stealing)??

    • Hello, Sean!

      Good question!

      First, let me start out by saying that I’m not a lawyer, so you’re on the right track in seeking one out. However, make sure you’re looking to the right kind of lawyer for advice. A child advocacy lawyer or a tax lawyer will have no clue about copyrights. Entertainment lawyer. Got it? Good.

      Now, with that said, the simple answer is “no.” And here’s the reason why.

      If something has entered the national lexicon, meaning everyone says it or knows where it comes from, then it can be used under “fair use.” Darth Vader saying, “Luke, I am your father!” is a perfect example. National lexicon, but everyone says it. Or, even better: “You complete me.”

      Now, song lyrics are different. They are written down and printed, and cannot be re-printed without permission. Usually, that permission has to come from the record company (not the songwriter), because the record labels are these big, monolithic entities that want money for every little thing. (In the 80s, when everyone had a boom box or a Walkman, cassette tapes were all the rage: easy to record music from the radio onto them, and then take that music with you anywhere you wanted to go. However, that is technically copyright infringement. The same thing with CD’s. The same thing with ripping music. In Canada, there is an extra tax on blank tapes and CD’s because they know what you’re going to be using the tapes and cd’s for, and that extra tax money goes to the Canadian music industry.)

      Now, the American music industry is not afraid to sue you. As a matter of fact, they’ll sue you for copyright infringement for some exorbitant amount that you can never pay, and then want that amount to be paid for every unit of your comic sold. Or, if it’s online, for every time the page was accessed.

      Let me put it like this: for a file hosting company (where you can also download songs for free, which is copyright infringement), the American music industry wanted to sue for the infringement of a few hundred songs. They wanted hundreds of thousands of dollars for each song, for each time the song was downloaded. They would have ended up with hundreds of trillions of dollars.

      Let me say that again.

      Hundreds of trillions of dollars. This is more than all the money produced by all the nations on the planet combined.

      The only ways to use songs in your music is to get permission from the appropriate company, or create the music yourself.

      Those are your choices. Citing the works is of no help: it says you know exactly where you stole it from, and decided not to pay, anyway.

      My advice: leave music alone, unless you want to create it yourself. It’s expensive.

      Hope that helps.

  6. Sean Rutan says:

    Yes, that definitely clarifies. I’m talking with an IP lawyer to help iron this stuff out, but there is something I wanted to do with my book that’s meant to be interactive. Essentially, it’s littered with pop culture references, each one of them being intentional Easter Eggs for the reader to find. After each issue comes out, the readers can send in a list of what they found….and whoever finds the most wins something. That is where the citing the references would come into play.

    I don’t do song lyrics, but I’m still placing pop culture references in my writing. That is why I’ve been researching it. If I reference a catchphrase, a film quote, or a real-life person (Bernie Goetz, Charlie Mack, Charles Bronson, etc), I want to be sure that it’s smooth sailing.

    Thanks for the reply!

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