How Does Copyright Work Anyway?


In another life (okay—at the day job), I have to understand a fair bit of legalese. And for that reason, I have a fair idea of how it works.

Don’t take anything here as legal advice. But I will preface that caution: this is literally how traditional publishers play with copyright. Do with that information what you will, but it helps to level the playing field if all of us in publishing have a decent idea of how copyright works.

Copyright Exists from the Moment of Creation

So, the first myth I hear a lot is that you have to “register” your copyright or you need to mail a copy of your manuscript to yourself. Doing this establishes copyright. Without it, you don’t have copyright and someone could steal your work.

This is, in fact, false. Copyright is “inherent.” It exists within the work from the moment the work exists.

That means the second you create something, you have copyright!

So, what about this registration or mailing yourself a copy? In days of yore (and even into the digital age), these methods helped you establish a paper trail. While you inherently have copyright, you might have a harder time proving it.

So, you can register your book or poem or what have you at the Library of Congress in the US. This means that if you ever need to sue anyone over copyright infringement, it’s easy to find out that you are, in fact, the copyright holder. They have it all on file.

That’s the same idea with mailing yourself a copy. The postage stamp gives you a time and date for when you put it in the post. That establishes the earliest known version of the work, which, if you’re the copyright holder, would be yours.

Do you need to do either of these things? Not necessarily. And, arguably, in the digital age, it’s even less necessary. After all, files have time stamps, modification dates, and more.

That said, people can falsify that data. Forensic data science can help reconstruct file origination, but it’s just as easy to have the work on file at the LOC or have a post-marked envelope.

Copyright Protects Expression

My partner and I had an interesting discussion of Amazon’s new Lord of the Rings series. Someone speculated that the reason the new series had a different “look and feel” was avoiding copyright infringement.

New Line Cinemas or Peter Jackson might sue over if Amazon decided to copy, say, Galadriel’s outfit down to every last detail (and hire Cate Blanchett to play her). So maybe there’s a grain of truth here: the ‘Zon went in a new direction because they didn’t want to get sued.

Two happy Black children wearing red-and-green elf costumes for Christmas. Amazon's new series, of course, didn't go this far off course.
Unsurprisingly, more people were concerned by the inclusion of POC than the hiring of Christmas elves. (Marta Wave / Pexels.com)

It’s probably not copyright infringement for a couple of reasons. One, copyright protects expression. So, since the new series is about some familiar characters in all new adventures (since Amazon’s working with different material from Tolkien’s canon), it wouldn’t necessarily run up against infringement. If Amazon was making a new version of The Lord of the Rings or The Hobbit, then absolutely, they need to be cautious.

There are other grounds for an infringement suit though: confusion in the market.

Copyright protects creators to some degree, particularly their profits. So, if two works are very similar, then a copyright holder could argue that the other work infringes their copyright.

But that hinges on the works being so similar, people can’t really tell them apart. So, if Amazon copied Peter Jackson’s vibe entirely, then yes, people might get confused. People who wanted to watch Jackson’s masterful trilogy might get “tricked” into watching the Amazon series. Jackson and others who get royalties off the project could lose profit that way.

Again, chances are relatively low, since Amazon is telling different stories.

You Can’t Copyright an Idea

As noted above, copyright extends to the expression of an idea. That’s why copyright infringement is much more stringent than a lot of people seem to realize. Two works have to be pretty darn similar to get the “confusion in the market” argument going.

Again, protecting profits is the big concern here. So even if two works are similar, a judge might decide that there was no infringement. The works might not be similar enough to cause “confusion.”

There’s obviously some gray area here, and there’s always a question of what’s considered similar enough to cause market confusion or loss of profits.

A white wolf faces the right of the frame while lying on snow-covered leaves. A black wolf stands beside it.
Look, just because my story had a wolf doesn’t mean it was copyright infringement. My wolf was white; yours was black. (Shelby Waltz / Pexels.com)

So, if two writers write omegaverse stories with some similar tropes, that’s likely not enough to prove copyright infringement happened. The plaintiff would need to prove both similarity of the works and loss of profits because the other work exists.

A Word about Moral Rights

That said, authors also have moral rights. You have some control over use of your work. If, for example, someone wanted to put a photograph you took in an ad for a neo-Nazi group, you could object on moral grounds. You don’t want your work associated with this group.

Moral rights do often come back to profit as well. If someone’s use misrepresents your work, then it’s a black mark on your reputation. So if a publisher does a poor job editing your book or puts out a shoddy edition, you could potentially sue them over moral rights, even though you granted them the copyright to make the book.

In that case, you may win something, such as a reversion of rights, a destruction of copies, or a halt on future printings or sales. You may even do something like ask for them to take your name off the book, so nobody associates you with this version of the work.

This is less about your profits and more about your reputation, which could harm you in the future. Maybe people see this terrible version of your book, and they associate you with it forever. They never want to read anything else by you, because they think everything you write is like this (even when it’s not). As a result, your career ends. That’s where moral rights come into play.

The Difference between Plagiarism and Infringement

As I’ve pointed out a couple of times here, copyright infringement protects the creator’s profits.

Plagiarism can veer into copyright infringement, if it results in works that are similar enough to poach profits from the original author. However, plagiarism itself isn’t a crime. It’s an ethical issue.

Plagiarism is taking someone else’s work and presenting it as your own. Now, if you take a whole book, that’s also copyright infringement. Because you’ve made a work that’s so similar to the other, there’s going to be confusion in the market. The original author will lose dollars.

Plagiarism isn’t always as blatant as that. In many cases, it’s lifting a line from a book and putting it into your own work. Some plagiarists will lift whole passages from multiple works, reworking them only slightly so they fit together.

Again, you can’t penalize plagiarists under the legal code. It’s simply an ethical issue: a moral author wouldn’t. If the plagiarism is so bad it veers into copyright infringement, that’s a different issue.

The Gray Area of Fair Use

Of course, there might be situations where you want to quote another author. Or maybe you want to include a line of poetry or mention some favorite song lyrics.

The area of “fair use” covers this type of stuff. Fair use protects some amount of quotation, usually for promotional purposes. But if your work is only quoting, say, a line from a movie and it’s because the characters really love the movie, it’s probably not going to qualify as copyright infringement. This would be “fair use”: you only quoted a little. If anything, it’s probably going to boost movie tickets or sales of another book. The other creator has not been injured.

A Black woman judge sits at a large desk in a well-appointed office, signing what might be a judicial opinion on a copyright lawsuit.
“In my opinion, this was a bullshit copyright lawsuit.” (EKATERINA BOLOVTSOVA / Pexels.com)

If you had your characters in a high school play and you included the entire script of the play—let’s say it was Hamilton—then you’re no longer in “fair use” territory.

Similarly, if your characters keep quoting Star Wars, even if they don’t quote the whole script, it’s probably too much material to be “fair use.”

How Much Is too Much?

Often, the length of the original work is the deciding factor in “fair use.” If you’re quoting from a 500-page book, you can quote a little bit more material, because it’s not a large portion of the work itself.

By contrast, quoting even just two lines of a poem might be a problem. It might be, say, 25 or 50 percent of the poem.

In those cases, including so much material without the consent of the rights holder is copyright infringement.

The same is true of song lyrics. Since songs are often short, even a single line would be too much to quote.

There’s also a rule about quoting parts of works that could be considered the “crux” of the work—that is, if someone were to read the line in your book, they wouldn’t need to read it anywhere else. That can damage sales too, so authors should also think about what they’re quoting.

Generally, it’s better just not to include this kind of stuff in your work. Licensing can be difficult and expensive, and you may not get permission to use the material anyway. If that’s the case, then you’ll need to take the material out—so just leave it out in the first place.

The Public Domain

Finally, there’s what’s known as the public domain. These are works that have expired copyrights. Once the copyright is expired, anyone can use the work. Works like Frankenstein, Dracula, and The Great Gatsby are all in the public domain.

How does a work become public domain? Generally, the copyright term expires. In some places, copyright is life of the author plus 50 years.

Under international law (and in many countries), it’s life of the author plus 70 years. The US has one of the longest copyright terms in the world: up to 120 years, depending on the type of work and the circumstances around publication.

The length of copyright terms in the US has been pushed for by big corporations like Disney, which want to protect characters like Mickey Mouse. Under the original terms, the Mouse would have entered the public domain 10 years ago. He’s locked up for another 30-someodd years at this point.

People argue that the point of the public domain is to allow works to maintain their relevance. Once a work enters the public domain, it’s free for anyone to pick it up and do anything they like with it. In turn, they make the work relevant to the public again.

When works stay locked up for 100 years after the creator dies, they lose touch with the public. (Take a look at who watches Steamboat Willie these days.) Corporations might be able to benefit from pumping out new content or profiting off the work for longer, but generally the profits don’t continue to trickle in because the work is no longer touching the public zeitgeist.

So there you have it! A quick and dirty overview of how copyright works and how it benefits you, the creator.

About the author

By Cherry

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