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As authors, our wealth is in our intellectual property assets – our books. So it's important to protect them and ensure they continue to earn us money for the life of copyright.
In today's show, attorney Kathryn Goldman explains copyright and how you can protect your books for the long term.
In the introduction, I give a personal update from Auckland, New Zealand and how the indie author movement is spreading. I also mention my mega-blog-post on how I moved from indie author to a small press, which might help those authors wanting to do the same thing. Plus, I talk about the Embrace body-positive documentary that has empowered me this week.
In publishing news, the end of Samhain publishers, and the discussion of author earnings after one prize-winning literary author had to return to the day job because he only received 40 cents per book sold. The Guardian picked up the story and talked about how publishers chase famous people for existing platforms, while lesser known authors can't get by. Plus Paul McCartney is going after the intellectual property rights to the songs he co-wrote with John Lennon. Beware of what contracts you sign, since you never know how big your work may become!
On futurist stuff, Amazon's Alexa is introduced into cars: with full Alexa integration, users will get access to every one of the 8,000 Alexa skills, from audiobooks and shopping lists to smart home control and shopping. I'm still very excited about how this will expand the reach of audiobooks!
This podcast is sponsored by Kobo Writing Life, which helps authors self-publish and reach readers in global markets through the Kobo ecosystem. You can also subscribe to the Kobo Writing Life podcast for interviews with successful indie authors.
Kathryn Goldman is an intellectual property attorney who protects writers, artists, filmmakers and businesses from having their work and art ripped off. She has a new course on Content Protection for Creative Professionals. Get her free Rip Off Protection ebook for Creative Professionals here.
You can listen above or on iTunes or Stitcher or watch the video here, read the notes and links below. Here are the highlights and full transcript below.
- What intellectual property is and what rights authors have for their creative work
- Cautionary tales from other artistic avenues of artists' rights being exploited
- How author pseudonyms affect copyright
- Specific instances of when authors need permission to use others' copyrighted work
- On whether authors should have contracts with book cover designers
- How to monitor your copyright and what to do if there's an infringement
You can find Kathryn at Charm City Legal. You can get her Rip Off Protection Guide here.
Transcript of Interview with Kathryn Goldman
Joanna: Hello, creatives. I'm Joanna Penn from TheCreativePenn.com and today I'm here with Kathryn Goldman. Hi, Kathryn.
Kathryn: Hi, Joanna. How are you today?
Joanna: I'm great. It's lovely to have you back on the show. Just a little introduction.
Kathryn is an intellectual property attorney who protects writers, artists, filmmakers, and businesses from having their work and art ripped off, which is awesome, and today we're talking about content protection for creative professionals.
So we've talked before on the show and I've had Helen Sedwick and some other people, but I want to go back to basics.
What is intellectual property, anyway, and what are some of the different rights that authors should be aware of?
Kathryn: Intellectual property is an intangible concept. It's intangible property. So if you think about a painting, and an artist paints a painting, the painting itself is physical property, but the idea that is expressed in that painting is the intangible intellectual property.
It's the same with a book. You write a book and you have it printed, and I buy it at the bookstore, and that physical book is personal property, but the ideas that you have expressed in the book are the intellectual property. And that's owned by you as the writer, even though I own the physical book. So it's a concept of ownership for intangible property.
Now, when we talk about the rights that come with that intangible property, it's really a bundle of rights. They're a group of rights. There's the right to make copies of your work, there's the right to distribute your work, there's the right to perform your work.
So in the case of authors, a performance would be a play on stage or in a film, so that becomes a right that you as the author control, copying, distribution, and performance. And so those are the things that when you go to sell your rights, those are the different rights that you think about selling.
Joanna: We'll come back to licensing versus selling in a minute, but the rights can go even further down, can't they? For example, J. K. Rowling owns her e-book rights to Harry Potter, whereas the print rights are held by the publisher that she signed with originally.
Which one do they fit under?
Kathryn: That's the right to copy. So you can copy in a digital format, or you can copy in a print format, or you can copy in an audio format. That's all under the right to copy.
So, yes, the right to copy breaks down into those different formats. It would break down into different languages. It could break down into different distribution channels, it could break down into different countries.
Each of those rights can be sliced and diced, and you can license or sell just a portion of that right to copy, and the same with performance rights. You could sell your performance rights to Netflix who could do an original series, or you can sell it to Disney who could do a film, and those are different rights. Now, Netflix might want exclusive rights, or Disney would probably want exclusive rights, but you can theoretically divide up those rights.
Joanna: Fantastic. This is so important and something that most authors don't seem to understand, that there's this bundle of rights and if they sign a contract, they can sign everything away, which we'll come back to.
I want to talk about selling versus licensing because many authors just think, “Oh, I'm going to write a book and then I'm going to sell it to a publisher, and I'm going to make a million dollars, and life is amazing.”
What's the difference between selling and licensing, and what should authors be aware of there?
Kathryn: If you are selling your rights to a publisher, then all of those rights that I just described, the right to copy, the right to distribute, and the right to perform, the publisher is buying them and has complete control over them, and you no longer own them. You have transferred your rights away. Not a recommended course of action, and not very common, not very common, anymore.
Licensing is when you define the one right that you want that publisher to have. And so if you're working with a publisher who has an area of expertise in your genre, in the English language, in e-books, okay, well, you can license them just that limited right, that they have the opportunity to exploit on your behalf.
And then you come to a business negotiation about what the percentage is going to be, that they pay you back once they exploit that right. But it's a very narrow licensing or permission, and you've reserved everything else for other publishers or other entities who might have expertise in a different area.
What you want to think about as an author, and when you're presented with a publishing contract, and the publishers try to scoop up as many of these rights as they can, whether they have an intention to exploit them on your behalf, or whether they have the expertise to exploit them on your behalf.
You really have to dig in and understand who your partner is going to be, who your publishing partner is going to be, and negotiate to give them only the rights that they are most likely to be successful with, and reserve the rest for another opportunity.
Joanna: And that license can even be for a number of years, can't it? So with ACX, it's like seven years for audio. I did a German deal for three years.
Is that becoming more common, that sort of number of years?
Kathryn: Yes, what's becoming more common is that authors are becoming more educated about their rights, and what they can and cannot do. And they are starting to define the boundaries themselves. They're not just taking a contract and accepting it because, “Oh, my god, it's so exciting, it's my first contract.”
They're looking at it critically, they're thinking about it in terms of their overall career trajectory, and so they are starting to negotiate those rights with limits, term limits, yearly limits, three years, five years, and then the rights come back to them. They revert back to them and they can give it to somebody else.
What it does is that it encourages the publisher who has the limited right for that amount of time to do the best they can so that when the renewal comes up, they get that renewal and the author won't take that right someplace else.
Joanna: And it was funny, when I was preparing, it came up in the news, it was about the music industry, people signing contracts early on. Well, there was one with Carrie Fisher who signed a contract with “Star Wars” where she signed away the rights to her image, and then The Rolling Stones, I read, don't own the rights to “Satisfaction,” and some of their biggest songs, and Michael Jackson's estate owned The Beatles' backlist.
I wonder if you could maybe comment on some other examples of signing away these things can have a massive impact on a future career. Even if you think you're nobody now, who knows where you could be?
Kathryn: Well, that's exactly right. In the music industry, that was very typical back in the '50s and '60s. In the film industry, I mean, you think about “The Three Stooges”. They owned nothing. They got paid for their performance and that was it. They had no residual royalties.
That was purely a matter of poor contract negotiation, not understanding their rights, maybe not being properly represented, which brings up the issue of an agent, as well.
When you work with an agent, you can control what it is an agent has the right to license on your behalf, as well. So if you have an agent who specializes in print relationships as opposed to an agent who specializes in relationships with Hollywood. You can divide that up, as well.
It's a matter of understanding that you own everything until you slice it off. And what happened in those examples is they gave everything away.
Joanna: Yeah, and I want people to really think about that because a lot of these bands, and authors, and a lot of things happen later on in your career, like they don't necessarily happen at the beginning. So unless you protect these things early on and take it seriously early on, you can end up in a difficult situation.
But let's move on to an interesting thing that I've seen recently, which is Enid Blyton, the beloved children's author in Britain. This Christmas, there were all these parody books like “Five Go to Brexit Island,” using “The Famous Five” branding, Enid Blyton's signature which turned out to be a trademark.
What is the difference between copyright and a trademark, and how was that publisher able to do that example of Enid Blyton's book?
Kathryn: Well, that was very interesting when you first raised that with me. So the difference between a copyright and a trademark is copyright protects the expression of a creative idea. Trademark identifies the source of goods and services. That's the difference.
With copyright, once you fix your idea in a tangible medium of expression…those are the magic words. When you write it down, when you type it, when you film it, whenever you fix it in a tangible medium, protection attaches. We'll talk about enforceability later, but the protection attaches. Trademark, in order to have protection, you have to be using the trademark as a trademark to identify goods and services.
So what I think happened in the case of your beloved children's author is her family registered a trademark on her name and on her signature, and they did it in the United States, as well, and then they sold the trademark.
Now, this was not a license, this was a sale of the trademark according to the records in the United States Trademark Office. I think that's probably consistent with what might have happened in England, as well.
This publisher now owns her signature trademark for a very specific class of goods. And I'm going to read from my other screen here, “For printed matter, namely a series of books, magazines, journals, newsletters, all in the field of children's entertainment.”
Joanna: Ooh.
Kathryn: Isn't that interesting?
Joanna: That doesn't sound like that it came under that.
Kathryn: No, it doesn't. It doesn't sound like that, at all. So this trademark was originally registered in the 1990s, sometime. Now, just because that's when it was registered doesn't mean it didn't preexist, because that was her signature. That was her trademark, that was her brand. So it existed even though it wasn't registered, but the registration is much more narrow than how the publisher is using it now, which I find very interesting.
Joanna: Wow. That is really fascinating. Talk a little bit about parody because especially with what's going on in American politics right now. There's a lot of parody stuff going on that some people could take offense to. We're not getting political.
Could those Enid Blyton's books…well, they are parody books. Does that mean they're protected in a different way?
Kathryn: Yes. Parody provides a level of protection. Parody and satire provide a level of protection from a claim of infringement. So it's unclear whether their copyrights still exists in the books that she wrote. Under U.S. law, it probably does still survive. So if the family were to object to…and I haven't seen these new books that you're talking about.
Joanna: This is just opinion.
Kathryn: Yeah, right. But if the family were to object to it and claim that they constituted an infringement and hadn't given permission to the publisher, then it's probable that the publisher would have a parody defense or a satire defense to infringement.
Joanna: Now, I find all that is so interesting. This is what I love about this stuff. You and I talked a couple of years ago originally, and I've interviewed other people, but when the penny drops on this type of stuff…you know, like, literally I saw those books in the bookstore and I went, “How are they doing that?” I was, like, delving into the IP rights, and it was very, very cool.
So just while we're talking about names, what about using a pseudonym, because a lot of writers listening will use a pseudonym? I mean, I use two names: I have Joanna Penn, J. F. Penn, I'm starting another brand this year which is not associated with me in any way.
How does a pseudonym affect copyright, and how do we make sure that we own it, but also, if people want to keep secret, how does that work?
Kathryn: A pseudonym does not negatively impact copyright, at all. You are still the copyright owner even though you are using a pen name. And the best proof that you are the pen name is holding the registration certificate in your hand. That is how you prove that you are the pen name.
There are ways to register a copyright under a pen name, and still identify yourself in the copyright registration, in the application.
There are also ways to register a copyright using a pseudonym and not reveal your true identity, at all, and that is accepted by the copyright. I do have a post on my site which is charmcitylegal.com. It takes you step-by-step, how to go through that registration process without ever revealing who you are, and still preserving all of your copyrights.
That level of privacy is important to a lot of authors, a lot of individuals who, for some reason or other, aren't interested in having people know that they wrote that particular book, but they want to maintain their rights and protect their rights in that book. So it can be done with the U.S. Copyright Office, and using a pen name or a pseudonym doesn't have any negative impact, at all.
Joanna: That's great, and I'll link to that in the show notes, so people can find that, because I know, especially with erotica a lot of people want to protect their name, so that's great.
Earlier you said that once the idea is in a tangible medium of expression, it is protected, but then you've also talked about registration. And there's also thus myth, I heard it from the British Library, which shocked me recently, that if you mail your manuscript to yourself through the post, that this is a way to protect your copyright. And I just found that crazy that in this day and age because…you know, there just must be better ways than mailing yourself.
Is it necessary to register copyright? What are the good reasons to do that, and is that a myth?
Kathryn: Is it a myth? I mean, I don't know, it might work. But, I mean, ultimately, how do you prove what's in the envelope that you mailed to yourself? And the only way to prove it is by opening the envelope. And so when you open the envelope, do you have to wait until you've…you know?
Joanna: You're in court.
Kathryn: Exactly. Rip it open, see, “This was me.” So, you know, from that standpoint of useful evidence, I think it's of limited usefulness.
Registration is the best way to prove ownership of a copyright, just flat-out, it is the best way to prove ownership of a copyright. As we talked about last time I was on your show, it also gives you something tangible to leave in your estate.
If it is generating multiple revenue streams, that registration is something tangible that is referred to in contracts, and so that's another reason to have it.
A third reason to have it is that it provides you with an enforcement mechanism that you wouldn't otherwise have if you didn't have the registration. And the enforcement mechanism in the United States is you can file a federal lawsuit in the event of true infringement…and we're gonna talk a little bit about fake infringement…and it allows you to recover statutory damages, of up to $150,000 for a willful infringement, and it also entitles you to recovery of attorney's fees, which can sometimes be the biggest hurdle in bringing litigation.
I don't like to emphasize the usefulness of a registration for purposes of litigation, as much as I like to talk about building your body of work, building your portfolio and having copyright applications be a regular part of your workflow. Because, going back to what we said earlier, you never know what's gonna hit, you never know whether your very first work is gonna be the one that you're known for, and the one that makes you money, year after year after year.
If you've built this registration process into your workflow, you're building a portfolio, you're going to be able to develop those revenue streams.
And then finally, when you do get offers from publishers, or filmmakers, or T.V. studios, or department stores to license something, do you have proof that you're the owner? They're going to require that for the contract. So that's another reason to do it.
Joanna: Yeah, that's great. And then just on that, because I've registered my books, and when you register, you pay for a certain number of years. There are some people who say, “Well, just get five years and then there's no need to continue paying because you've proved that's when you registered the copyright, and so it doesn't change,” versus, “You should always keep them up-to-date.”
What's your feeling?
Kathryn: Well, first of all, the registration scheme in the United States is different from the registration scheme in the UK. If you sell your books in the United States, you are able to register in the United States for one fee, you're done, $35 and you've got protection for the life of the copyright.
Joanna: Wow. Okay, right, stop there, because that's ridiculously cheap compared to Britain. It's about, I think it's £65 per book for five years, which is about U.S. $100, for five years, and then you have to pay more.
If I register my books in the U.S., that still covers me in the UK, right?
Kathryn: That's correct.
Joanna: Well, there you go. You just saved me loads of money. Thank you, Kathryn.
Kathryn: You're welcome.
Joanna: Just for everyone else who is not in the U.S. or the UK, if they register in the U.S., does that cover all countries that have signed…what's that law?
Kathryn: The Berne Convention, yes. And so if you have a registration in the United States and your country is a signatory to the Berne Convention, then you're entitled to the protections that that country offers based on the U.S. registration. That's kind of how it works, in a nutshell.
Joanna: Awesome. That's so cool. There we go. We can stop now, I've got everything I need. That's fantastic.
Some other more specific questions. Some people have a company, or an LLC.
I know some authors have been told to register the copyright in the name of their own company, or should it be the author name and then you basically license your own rights to your own company?
Kathryn: You need to take a look at what the business purposes are behind either arrangement. I start with the premise that the author should keep the copyrights in her own name and license to her company. That's my general preference.
And the reason is because you don't know where you're going to take that company. Let's say, for example, that you are the sole owner of the company and that you decide that you wanna bring on a partner, and, all of a sudden, the copyrights are owned by the company, and now you're bringing on a partner, and now your partner owns part of your copyrights. Is that something that you really want to have happen? So you need to think about that.
Another example, let's say that your company is a small press, and when you start out, your small press is just printing or publishing your own work. “Oh, makes sense. Let's put the copyrights in the small press, etc.”
But what if you start publishing the work of other authors? What if your small press starts to gain traction and you want to either take on investors, or sell it, or bring in partners? All of a sudden, your copyrights are owned by that company, and the other authors' books are just licensed to the company.
My preference is to keep the copyrights with the authors and to license to the company, even if, at this time, you're the only owner of the company.
Now, there are reasons for doing it the other way, and one of those reasons is if you are trying to protect your personal assets, for some reason. That's not an area of the law that I specialize in, but I do know that that is one mechanism for protecting copyrights as assets, is to put them into an LLC.
Joanna: That's really great, and so much of this stuff is actually thinking longer term, because there are people listening who might be working on their first book, and they just can't even fathom starting their own LLC, let alone doing this type of stuff.
What I want people to think about is, like, five years' time, ten years' time, twenty years' time, like we discussed with Enid Blyton, that's after her death. This is why this business is so exciting, because we can do so many things if we just take ownership and realize this, so I hope people are really listening.
I have a couple more questions on this. What about respecting other people's copyright? Authors often see, “Oh, this is my copyright,” and then they use somebody's picture on their blog, or they just, you know, stick some lyrics in a book.
What are the things that authors particularly should watch out for, with other people's right?
Kathryn: The lyrics are an important issue. A lot of writers want to include lyrics in their work because the song just completely embodies the theme or the message, or they use a lyric as the chapter title, or whatever. Lyrics, generally, you need permission in order to use the lyrics from someone's song. Copyright infringement is when you take the heart and soul of someone else's work and you put it in your own work.
Now, the case law has said that when you use lyrics, because songs are so short that using even a single line, a single lyric is considered the heart and soul of that work, and therefore would be considered infringement. So lyrics, you need permission for.
Quotes, you don't necessarily need permission for because you cannot copyright a short title or a slogan, and quotes could be considered slogans. So they're not protected by copyright. They might be protected by trademark, but they're not protected by copyright. So quotes are going be more or less fair game.
You have to be careful with photos. You can't just do a Google image search and find a great photo and pop it on your blog. You have to go and license it. You can use Creative Commons license, many of which allow commercial use with attribution. There are a lot of sites out there that I'm sure you've linked to in the past.
Joanna: Yeah, we've covered them previously.
Kathryn: So you have to get permission for using an image. I did a post right before Christmas on “Rudolf the Red-Nosed Reindeer,” which is actually a great story because the author of “Rudolf,” I don't know, is he big in England, also?
Joanna: Yeah.
Kathryn: Okay. The author was an employee of a department store back in the '30s, and so the department store owned the copyright. And as a gift, the department store gave the copyright back to the employee. So that's an example of what we were talking about in terms of who owns the work.
When I did my blog post, I wanted to use a photo of a local Christmas deer puppet set from Baltimore, which is where I'm from. And I found one online, and I wrote the woman whose photo it was, and I said, “I'm writing this blog post, can I use your photo?” And she said, “Sure.” So sometimes that's all it takes. It's just permission.
Joanna: That's really good. And then, you know, just coming down to some of the other things that authors are doing. Many of us, well, most of us, are commissioning our own book covers. We are working with book cover designers and other people that we'll do work-for-hire with, but how do we make sure we protect ourselves? We've engaged a cover designer, but many authors won't have contracts in place with these designers.
How do we protect ourselves there? Should we have a contract, and what should that say?
Kathryn: The answer is, “Yes, you should have a contract.” And the contract, if the book cover designer will give it to you, should transfer ownership in the book cover design to you, so work-for-hire contract, transfer of the entire copyright to you as the author.
Otherwise, it is owned by the cover designer, and that cover designer can use the same design on somebody else's book. So, first of all, get it transferred.
Secondly, you want to make sure that whoever has designed the cover has the right to use the images that they are incorporating into the cover. And so in that contract, you want them to represent that they have those rights. In case it turns out they don't have the rights, and you end up getting sued for infringing somebody's image, you get to turn around and go back to the cover designer who then has to defend you for that. So they have to say, “I own the rights and I have the right to use it and to use it for you.”
Now, if you're using stock photos, you have to make sure that the stock license, or the cover designer has to make sure that the stock license permits the use that is intended. Is it just going to be a Kindle book? Is it going to be a print book?
Those are called warranties, you wnat to make sure they are in place in the contract, and that the design is assigned to you. If it doesn't get assigned to you, you may not be able to use it in promotional materials, you may not be able to use it when it's time to bring out the audio-book, unless you own it, you're limited in how you can use it.
Joanna: And again, I know a lot of people listening will be like, “Ah, I haven't done that.” So everyone calm down. None of this stuff can't be fixed, so the point is for everyone listening to think about, “Okay, well, what have I got in place? What haven't I got in place, and what do I need to get in place?” In order to kind of future-proof, right?
Kathryn: Right.
Joanna: Because it's likely that nothing's going to happen if you're selling a hundred books a month or something, but what if, as we've said, something takes off and then, you know, suddenly you're having to deal with the fact that the cover image has something on that was never allowed?
Kathryn: Another point on cover image is this. Let's say you're being published by, you know, Publisher A and there's a beautiful cover on your book. And then for some reason, your rights revert and you go over to Publisher B, and Publisher B wants to reissue this book. Well, guess what? You don't own that cover, so that gorgeous cover is owned by the original publisher. So that's something that you have to think about. That is an independent piece of art that has its own rights, and if you want it, you have to get 'em.
Joanna: You have to get 'em. Fantastic. Ah, so much to do. Okay, we're running out of time.
Let's just talk about how to monitor your copyright and what to do if there is an infringement.
Kathryn: Monitoring. The easiest way is to set up a Google Alert on your name, and to also talk about the heart and soul of your work. And if you can take a line of your work that is unique and set up a Google Alert on that sentence that is found in the heart and soul of your work, then when that line appears anywhere on the internet, and after Google's alerts have crawled the internet, they'll send you an email saying, “It appears over here.”
And then you can go and check it out and see if that's an infringement, or if that's actually…maybe it's a review of your work and not an infringement, in which case it would be considered fair use to have that quote in a review. But that's one way to monitor your work.
Another way to monitor your work is not active, it's more passive. Your fans will tell you when they see something else out there that they thought was you and turns out not to be you. And so you have to listen to your fans. You have to read those emails and you have to follow up on that. I've had a number of artists come to me…artists and writers come to me saying, you know, “My piece was seen in a gift shop in the middle of Virginia. I did not send any of my pieces down to Virginia to get sold.” So then you have to follow up on that.
Joanna: That's fantastic. I would say right now most of us are being infringed in some way by these pirate sites and torrent sites; as soon as you publish a book, it's pirated. And mostly, I would say, “Just don't worry about it because it happens to everyone and, you know, these sites will just continue doing it.”
What are your thoughts on that?
Kathryn: Well, initially, I am very skeptical that they are actually pirating your book. I think that, in many cases, they're malware sites, or they're phishing sites, and, you know, some of them are membership sites, and, “Join here, give me your credit card and you can read unlimited books.” And whether the books are really there or not, I don't know, because I've never given them my credit card. That's item number one.
Item number two is, if people are actually getting free downloads from these pirate sites, these individuals aren't going to be your customers, anyway. And so I'm with you on the, “Let's not worry about these pirate sites.”
There's very, very little that we can do about it. You can issue takedown notice, but that's the head of the hydra, you know. They pop back up again.
One little trick that I heard about is that before you publish on Kindle, or whatever platform you're gonna use, you create a false file, a false digital file and you seed the pirate site yourself with a file that does not contain your entire book. And so at the end of the second chapter, it says, “You should have bought this off of Amazon.”
Joanna: Yeah, that's way too much work. I'll just let it be.
Kathryn: That's right. Video game developers do that.
Joanna: I think that's really interesting. In terms of if there is a real infringement…so there have been examples on Amazon where people have uploaded the books. I actually think Amazon now has some kind of thing in place because you actually get an email that says…and I've had them, “Do you own the copyright to this book? You have to prove it.”
I guess that's something that will stop that happening, but if there is a real infringement, is that when someone would see an attorney?
Kathryn: Well, not just yet. I mean, there's this ladder of enforcement, I call it. And the first thing you want to do is you want to contact the person you believe is infringing you. And so you start out with the email supposing that they don't know what they've done. I mean, assume the best, and then you work up from there.
Do a more aggressive email, to a takedown notice depending on where they have the infringing work posted, and you work up from there and then you go for the attorney and the cease-and-desist letter, and then potentially to litigation depending on how much commercial impact there is. But there are a lot of things that you can do before you have to get the attorney involved.
Joanna: Yeah, I think that's great. I mean, overwhelmingly I just want people to be less afraid of this whole area and to learn a bit more about it so that they can empower themselves in this whole domain. And you actually have a course and you've got lots of free stuff on your site.
And you've also got this great course on Content Protection for Creative Professionals. Tell people what they can expect to find in that course, if they're interested.
Kathryn: Well, the Content Protection for Creative Professionals, I have reduced down to a blueprint that anyone can download to take a look at what steps are involved in protecting your work so that you can profit from it. And there are a variety of things that writers and artists can do for themselves that help them improve the profitability of their portfolio.
We talked a lot today and the goal is to create multiple revenue streams. When you create multiple revenue streams, you're thinking in the context of your overall career so that the CP2 Blueprint for the course shows you what those steps are to help you create those revenue streams, protect those revenue streams, and you can choose what steps apply to your career, what works for you, and what you don't necessarily have to spend your energy on.
The Blueprint is a free download. The course itself will be offered in March of 2017, and then again in the fall of 2017. The course involves live discussion with me and a lot of Q&A. A lot of information comes out when people have direct access to me. So that's why it's only offered twice a year, because of that kind of interaction. If you want to find out about the course, you can download the CP2 Blueprint which, I think, is going to be a link.
Joanna: No, you give your link.
Kathryn: Okay, well, you go to charmcitylegal.com and you can find the CP2 Blueprint there at charmcitylegal.com. And so what I'm hoping to do is empower writers and artists to get a handle on this for themselves so that they don't need to come to an attorney every time they need something done, and the course will put some flesh on the bones of the Blueprint to further empower and make the law accessible for creative professionals.
Joanna: Fantastic, absolutely amazing stuff. Thank you so much for your time, Kathryn. This has been brilliant.
Kathryn: Thank you for having me, Joanna. I look forward to coming back on some other topics.
M T Driscoll says
What great timing! I am just about to register the copyright for my first book and I came on this site to see if there was any advice that I needed, and this podcast popped up – downloaded today.
I am based in Switzerland, so I was unsure what to do, and guess what? Switzerland signed the Bern Convention, so I can register in USA. The information about pseudonyms was also very useful.
Thank you again, Joanna, for providing this invaluable information. Do keep up this great work.
Thank you also to Kathryn for such clear advice.
Joanna Penn says
Woohoo!! I was so thrilled about the US registration as well – going to save me SO much money!
Maria/Pal. says
Kathryn Goldman makes many excellent recommendations on how to protect your authorships.
Near the end of the discussion, Kathryn states, “… there’s this ladder of enforcement, I call it. And the first thing you want to do is you want to contact the person you believe is infringing you. And so you start out with the email supposing that they don’t know what they’ve done. I mean, assume the best, and then you work up from there.”
I respectively disagree on Kathryn’s “ladder of enforcement” procedure! The best plan is to FIRST gather evidence of the infringement before the infringer has a chance to remove or hide it. Search the infringer’s entire web & social media sites. When you come across infringements, make screen-capture copies and back-up those evidence. Once you have collected all the evidence, then you (or better, your attorney) can contact the infringer to push for a settlement vs. going to trial.
From my experience, you tend to get faster results and receive higher money damages when you retain an attorney verses trying to resolve the infringement on your own. If you contact the infringer and are directed to its attorney, you’ll be at a severe disadvantage, as you don’t know the law nor do you know how to negotiate a settlement. Don’t sign a settlement agreement without having your attorney review it!
If your work is being infringed on a large scale (commercially and/or with lots of money damages), you may want to contact a copyright litigator (rather than a copyright transactional attorney). Litigators tend to have more leverage against infringers.
It’s important for all creatives, including those living in the EU, Australia, NZ, Canada, and elsewhere to timely register their works with the US Copyright Office. If your work is being infringed in your home country, it would not surprise me to see it also (eventually) being infringed in the USA. This link explains why having a US copyright Certificate of Registration in-hand is necessary to pursue US-based copyright infringers: http://donahue.com/resources/publications/copyrights-registered-u-s/.
Kathryn Goldman says
Maria,
I agree with you that you must gather all the information before you make a move to enforce your rights. If there’s extensive evidence of egregious violations, I also agree that using an attorney might be the best route. I am an attorney (and a copyright litigator) and I’m not trying to dissuade someone from hiring one when it is appropriate. But there are instances when using an attorney is overkill and too expensive. Litigation doesn’t solve all problems and even when you win, you can lose. As always, it depends on the circumstances.
It is always best to have a US copyright registration in your possession when seeking enforcement of your rights (whether in court or otherwise). That is why I believe creative professionals should put the copyright application procedure into their regular workflow. First publish, then file the application. Immediately, if not sooner.
Kathryn
Maria/Pal. says
Hi Kathryn.
“That is why I believe creative professionals should put the copyright application procedure into their regular workflow.”
From someone whose works have been repeatedly infringed, I heard the podcast differently. Respectfully, the registration process wasn’t stressed enough during the program. From my perspective, the registration processing and its benefits was more passing than substantive.
To be fair to you + Joanne, it’s not possible to cover everything in a single 70-minute program. But when the podcast’s title is “How To PROTECT [caps added] Your Creative Work With Kathryn Goldman,” then the discussion could have included eCO links. In fact, I’m certain listeners would have benefited greatly having direct links to the copyright registration process:
1) Copyright Registration Portal: https://copyright.gov/registration/
2) Single Application registration tutorial: http://copyright.gov/eco/eco-tutorial-single.pdf
3) Standard Application registration tutorial: http://copyright.gov/eco/eco-tutorial-standard.pdf
“First publish, then file the application. Immediately, if not sooner.”
Alternatively, and my preference, group-register all your UNPUBLISHED literary works in one eCO Standard Application. For US$55, this process mitigates registration fees and is ideal for prolific writers who have a lead time before publication. Just include Contents Titles (robust title descriptions for each work) when preparing the eCO registration application. If you’re registering ten poems, books, blog entries (all unpublished!), then include ten Contents Titles.
Sarah Painter says
Thank you for a brilliantly useful interview, Joanna and Kathryn. And thank you, too, for recording the intro even though you were tired – I look forward to your personal update every week and would have been sad to miss one!
Joanna Penn says
Thanks Sarah – I know I waffled on a bit but I always love talking to you all 🙂
Theophania says
It’s also important to note that there is NO requirement to register copyright in the UK. The UK ‘copyright registration site’ is a commercial entity, not anything to do with the government or the legal system.
In the US, you get extra rights regarding enforcement if you register your copyright. It’s a bit of a hangover, I think, from when you had to register your work in order to have copyright at all (which was never the case in the UK, as far as I know).
In the UK, copyright is an entirely unregistered right – if you want to register with the commercial company (or register elsewhere in the world), you can, but you don’t have to. All it does is provide you with some evidence that the work existed, and was in your possession, on a certain date. It doesn’t get you any extra legal rights.
It might be interesting to get the opinion of a UK copyright lawyer, since the law is different here – I’m not a lawyer, just someone who has done a certain amount of reading.
Joanna Penn says
As per the discussion, it is NOT necessary to register your copyright anywhere. We’re just suggesting you consider it if you’re a serious business wanting to ensure more easily applicable protection in case you need it e.g. when asked by Amazon, or in case of infringement.
Maria/Pal. says
Joanna Penn wrote, “As per the discussion, it is NOT necessary to register your copyright anywhere…”
Respectfully Joanna, I think that’s just bad advice. We should all be pushing authors to be great business people who actively protect (register) their intellectual property rights.
USA, European, and most all other countries grant authors immediate & automatic copyright protection upon creation of an original work.
However, American authors MUST timely register their copyrights to FULLY enforce their creative rights in a federal court and be able to pursue enhanced statutory money damages against US-based infringers.
The UK and other Berne Convention signatories get a pass and don’t have to register their works to pursue US-based infringers; however, they can only pursue actual money damages and the disgorgement of unlicensed profits, if any(!), and these are typically low dollar amount awards.
With a “timely” copyright registration in-hand (works registered as unpublished, before the infringement occurs, or within three-months of first-publication), European creatives and their US copyright litigators have lots of LEVERAGE to push US infringers to (quickly) settle. If the American infringer elects not to settle and the matter proceeds to trial, the infringer is now liable for up to US$150,000 for the infringement and potentially the writer’s attorney fees and legal costs.
This link summarizes why having a US copyright Certificate of Registration is necessary to pursue US-based copyright infringers: http://donahue.com/resources/publications/copyrights-registered-u-s/.
These links support my position that everyone needs to register their copyrights with the US Copyright Office:
Watch Gordon Firemark, a Los Angeles entertainment attorney, explain “When Should You Register Your Copyrights”: https://youtu.be/Zg1laoSKXc0
John W. Mashni, entertainment attorney with Foster Swift Collins & Smith PC, writes, “We encourage all content creators, including authors, producers, businesses, musicians, filmmakers, organizations, photographers, and freelancers to register all of their copyrighted materials to take advantage of the benefits that registration provides”: http://www.lexology.com/library/detail.aspx?g=72fa2637-e8bc-41b1-a327-fdbd56658739.
Joshua Kaufman is a Washington, DC copyright litigator:
1) Copyright Notice (3-minutes): https://youtu.be/IQGx2NOcca0
2) Copyright Registration (4-minutes): https://youtu.be/cBOKkrleY3Y
3) Copyright Infringement #1 (6-minutes): https://youtu.be/OQpKAGqlquE
4) Copyright Infringement #2 (3-minutes): https://youtu.be/Oh0gm2IW8lU
Joanna Penn says
As stated in the podcast, this is not legal advice – it’s a discussion of options. This is not a legal blog. You need to get your own legal advice for your own situation.
Maria/Pal. says
Hi Joanne.
My thoughts were not legal, but rather business-related (see my first paragraph): “…We should all be pushing authors to be great BUSINESS people who actively protect (register) their intellectual property rights.”
The most important business assets creatives own are their IP rights (copyrights and/or trademarks)! If they don’t REGISTER them, license/exploit them, and enforce them, they’re likely out of business.
Among other things, successful creatives need to have strong business expertise in IP, accounting, marketing/social media, and sales.
M.
Kathryn Goldman says
Maria,
Registration of your copyright in the U.S. is an excellent practice for the many reasons Joanna and I discussed in the podcast. Federal litigation in the U.S. is not a best practice for building a creative career. It diverts time, money, and energy from the act of building a creative business and rarely delivers a satisfactory outcome.
While it is true that statutory damages of up to $150,000 per infringement are available. Damages of that size are only awarded in cases of willful infringement. So, at the information gathering stage of the matter (as mentioned in the comment above) before an adverse action is begun, it makes sense to determine whether the infringement is worthy of a federal lawsuit or whether some other resolution is possible. One that stops the infringing activity, and hence the commercial damage, more quickly than a federal law suit ever will.
Kathryn
Maria/Pal. says
I don’t advocate filing copyright lawsuits; rather, I URGE creatives to get their authorships timely registered to give them + their litigators options: 1) Ignore the unlicensed usage; 2) if Fair Use (ask for attribution + link); 3) get unlicensed works removed via DMCA take-down notice; 4) retain litigator to pursue settlement discussions; 5) file suit.
M.
Rachel Morgan says
Thank you for the informative post 🙂
What’s funny is that I’ve been told the same thing about mailing a copy of my manuscript to myself in a registered envelope and then not opening it! And I was told this by reps of the Publishers Association of South Africa at a book fair a few years ago (there’s no option in this country to register copyright with a copyright office and then receive a copyright certificate). I’ve often wondered how exactly that would work if I ever needed to prove the copyright is mine. What if I had to prove it to someone overseas? Would we get on a Skype call so they could watch me open my sealed envelope for the first time and produce my manuscript?!
Maria/Pal. says
As Kathryn Goldman stated, mailing your writings back to yourself in a seal envelop (aka Poor Man’s copyright) doesn’t prove your authorship or copyright ownership; it’s too easy to have it debunked in court.
By timely registering your works with the US Copyright Office, either before publication or within five-years of first-publication, a writer receive “presumptive proof” (prima facie evidence) that his/her copyright and the facts stated in the copyright registration application are valid.
Your US copyright Certificate of Registration proves to a US federal court your authorship and its corresponding copyright (unless it’s otherwise refuted).
I have to believe that a Certificate of Registration issued by the US Copyright Office to a non-US-based writer could be beneficial and help prove that the writer authored the work in his/her respective country.
Kathryn Goldman says
Maria,
You are quite correct and U.S. Copyright Registration Certificate carries a lot of weight in international situations. Having one is really a no lose proposition.
Kathryn
Jeff Willis says
Joanna and Kathryn,
Just wanted to say that I really enjoyed the podcast this week. Lots of great information!
Regarding the section of the show about sending a copy of the work to oneself and using the postmark on the unopened package as proof of the date of creation (a.k.a. Poor Man’s Copyright), I think it’s important to emphasize the fallacy of it by pointing out that the U.S. Copyright Office itself even addresses this myth in their FAQ:
“The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.” (https://www.copyright.gov/help/faq/faq-general.html)
In the entertainment industry (my particular area of specialization), Poor Man’s Copyright is a significant problem, as is the Writers Guild of America’s Registry, which, similarly, will record the date a package was registered and then provide the sealed package to the registrant upon request… presumably for a “voila!” moment in court? 😉
While the WGA Registry is technically recognized by the courts as an independent third party that can verify the date of creation (Poor Man’s Copyright is missing that “independent third party” aspect), a lot of writers confuse merely establishing a date of creation with the full rights and privileges afforded to registered copyright holders.
There are a lot of people out there who advocate Poor Man’s Copyright and/or the WGA Registry based on hearsay and assumptions. It’s really unfortunate because, as this podcast made so wonderfully clear, there is a lot of value and power in understanding and exercising one’s creative rights. It’s such a shame when a writer is misled into thinking they’re fully protected when they’re not!
Keep up the great work and thanks for all that you do to help authors!
L.J. Diva says
So which website do we go to to register for US Copyright?
I want to make sure I get it right, and does anyone know of step by step instructions? I know applying for ITINs and EINs were such a hassle I don’t want this to be too.
AR_ArtMedia says
If you can, register your literary works via the Copyright Office’s eCO system (“electronic Copyright Office”) aka “e-Filing” rather than use the “paperforms”. It’s currently taking up to ten-months to receive your Certificate of Registration when you file through the eCO.
The US Copyright Office: http://www.copyright.gov
1) Set-up a userID and password: https://eco.copyright.gov/eService_enu/start.swe?SWECmd=Login&SWECM=S&SRN=&SWEHo=eco.copyright.gov
2) Background information, visit the “Registration Portal,” and select “Literary Works”: https://www.copyright.gov/registration/
On the right side of the page, you’ll find tips/links: eCO FAQ; eCO tips; eCO registration tutorials; what file types I can use to upload copies of my literary works; etc.
SPECIAL NOTE: You must identify your work/s as either published or un-published. If registering multiple works, you can NOT mix published and unpublished works in the same registration. The copyright statute’s definition of “publication”: https://www.copyright.gov/eco/help-publication.html.
To determine which application form to use (Single or Standard), visit http://www.copyright.gov/fls/sl04s.pdf
In general, if you’re simply registering ONE literary work where you’re the ONLY author and you own its copyright outright (not part of a work-for-hire assignment), then use the Single Application at $35. For everything else, use the Standard Application at $55.
Single Application Tutorial: http://copyright.gov/eco/eco-tutorial-single.pdf
Standard Application Tutorial: http://copyright.gov/eco/eco-tutorial-standard.pdf
How to upload copies of your works: https://www.copyright.gov/eco/help-upload-tutorial.html
3) To begin the register process, “Log in to eCO”: https://eco.copyright.gov/eService_enu/start.swe?SWECmd=Start&SWEHo=eco.copyright.gov
Don’t include your SS#, DL#, passwords, or any other sensitive and personal information, as the registration and its content will become part of the Copyright Office’s public record. You may not want to include your phone number in your application. Your address can be a US P.O. BOX. Learn more here: https://www.copyright.gov/fls/sl37.pdf
Gerry Fitzgerald says
A fascinating podcast Joanna, as always. Many thanks. Just wondering how would I register short stories that may be published individually and used in more than one collection of mine and/or with other authors. Should each story be registered individually? If they are then part of a collection, must the collection be also registered separately? If a collaboration, then how does the registration/copyright work?
Thanks in advance.
AR_ArtMedia says
Gerry Fitzgerald: The following may answer your questions. Also, read my reply to “L.J. Diva” for further information, tips, and links on the US copyright registration process.
Ideally, you would register each of your short stories individually either published or unpublished, one at a time. If you’re the sole author and you own all rights to the work, use Copyright Office’s eCO Single Application at US$35. So, if you have 20 short stories, you would use 20 Single Applications @ $35 each (pricey!).
On the other hand, if your short stories are ALL unpublished, you can register them in one $55 eCO Standard Application. Along with including the main registration title of the works, you should include descriptive titles (aka Contents Titles) for each work. If you’re registering 20 different unpublished literary works, include 20 distinct titles. You can NOT mixed published and unpublished works in the same registration.
If you’ve co-authored one or more works, either published or unpublished, you’ll have to use the Standard $55 eCO Application (whenever there are multiple authors or works being registered, you cannot use the Single Application form).
If all your works were first-published on the SAME date and in the SAME unit of publication, you’re permitted to register all of them with a Standard Application. For example, if you first-publish five of your poems in your local literary magazine (all the works are published simultaneously and in the same publication), you can register using one Standard Application. Otherwise, you’ll have to register your published works one-at-a-time using the Single Application form (pricey!).
Gerry Fitzgerald says
Invaluable information, thanks AR_ArtMedia
Jen C says
I recall reading somewhere recently that you’re now reading registering copyright with a UK organisation, is that right? I recall it being related to the ACX requirement to see proof of ownership. If so, please could you share the details full?
Joanna Penn says
I’m using this one – https://copyrightservice.co.uk/
It’s not legally necessary but because of other people pirating my work, I have had to prove copyright ownership so many times, it’s easier to have a certificate to send Amazon when they ask! But it costs money, so it’s annoying that we have to do this!
There are other options, this is just the one I use.
Evelyn Starr says
Joanna, just wondering. when you change a book cover, are your registering the new covers with the copyright office? I’m considering changing my book cover and looking into all the admin that will require.
Joanna Penn says
Hi Evelyn, I only register my written work with the copyright office. My book cover designer has assigned the copyright to me, but you will have to check your contracts with your designer.
Evelyn Starr says
Thanks Joanne, super helpful.