Protecting Intellectual Property: What Writers Need to Know About Copyright

This post was originally published at Planetside, SFWA’s online magazine.

Copyright is a complex subject about which there are many misconceptions.

I was reminded of that this week, thanks to an email from an author who discovered that several of their books were included in one of the databases of pirated works used by the AI company Anthropic for AI training. The author wanted to know whether they were eligible to be part of the gigantic $1.5 billion settlement Anthropic has agreed to pay to compensate writers for its misuse of their intellectual property. (You can read more about the lawsuit, and the settlement, here.)

One of the criteria for eligibility, set by the court, is that copyrights to the pirated works must have been properly registered with the US Copyright Office before Anthropic downloaded the databases. And indeed, the author’s books were all registered in a timely manner…but not with the Copyright Office. Instead, the author used a website called Copyrighted.com, which offers a kind of faux registration using timestamps and its own certificates.

I had to tell the author that no, they weren’t eligible for compensation for their pirated books. In the United States, there’s no equivalent or substitute for the US Copyright Office’s official registration process. The author couldn’t even use the materials they’d gotten from Coprighted.com as prima facie evidence of copyright ownership. Again, only official registration provides that.

In this post, I’m going to cover the basics of copyright, offer some warnings, and dispel some myths. It’s intended as an overview, not an all-inclusive resource; there’s much more to know, and there are resources at the bottom of the post to help with that. I’m also aware that much of what I write below will be familiar to a lot of readers—but as the example above shows, knowledge gaps not only exist, but can be damaging.

As always in the writing biz, knowledge is your greatest ally and your best defense. I hope even the most copyright-savvy readers will find something useful here.

Copyright Basics

Copyright, literally, is “the right to copy.” It guarantees the authors of creative works—including books, stories, artworks, films, recordings, and photographs—the exclusive right to copy and distribute the works, or authorize others to do so, by whatever means and in whatever media currently exist. It also ensures that works can’t be copied or distributed without the author’s permission.

The international source for copyright law is the Berne Convention, adopted in 1886 and revised and amended several times since. In the 181 countries that are currently signatory to Berne, including the US, copyright ownership is automatic the instant the work is fixed in tangible form—the paint applied to canvas, the musical notes recorded, the words written down. Creators don’t have to do anything else to make that happen.

Contained within copyright is the entire bundle of rights that creators can utilize themselves or license to others. For writers, this includes the right to publish in print and digital formats, to make translations and audio recordings and dramatic adaptations, to create derivative works, and much more—a list that continues to expand as technology makes different forms of publication and distribution possible.

When you sign a publishing contract or agree to the Terms of Service of a self-publishing platform, you grant the publisher or platform permission to publish, sell, and distribute your work for profit, in exchange for a share of the income. Because you own the copyright, granting rights doesn’t mean you lose or abandon those rights: merely that you authorize someone else to exploit them for a time. Eventually, once the contract term expires or the publisher takes the work “out of print” or you terminate the contract yourself, those claims on your rights lapse, leaving you free to re-grant them or to use them yourself, as you choose.

You can’t lose your copyright unless you specifically agree to give it up (as in work-for-hire contracts), and no transfer of copyright is valid unless it’s in writing and signed by the copyright owner. But copyright does expire eventually. For written works, the Berne Convention sets the duration of copyright for individual creators as a minimum of the creator’s lifetime plus 50 years, ensuring that copyright can be passed down to descendants like any other form of property, but also that works will eventually enter the public domain. Many of the countries that have adopted Berne have extended that term: in the US, the UK, and most of Europe, it’s the creator’s lifetime plus 70 years.

In addition to the economic rights described above, Berne invests creators with moral rights, intended to protect authorship by ensuring that works are published with the creator’s name (the right of attribution) and can’t be amended or altered in ways that would damage the reputation of the creator or the work (the right of integrity).

Most Berne signatory countries recognize moral rights. The US does not, at least for written works: when Congress adopted Berne in 1988, it decided that other laws provided equivalent protection. Moral rights really only become significant for US writers when contracts demand that they be waived—a decision that shouldn’t be entered into lightly. (I’ve written in much more detail about moral rights, and the implications of waiving them, here.)

Registration

The Berne Convention ensures copyright protection without requiring creators to take any additional steps, such as registering their copyrights. As a result, many Berne countries have no official registration process.

Others, such as Canada, offer voluntary registration schemes, with registration providing prima facie evidence of copyright ownership—important for legal purposes, because you don’t have to waste time proving ownership if you ever go to court. 

The US is unique in making copyright registration a prerequisite for any kind of copyright-related court action (there’s a complex history for why this is the case, despite the stipulations of Berne). Registering, which must be done via the US Copyright Office, doesn’t increase your protection—by law, you have that already—but you can’t defend your copyright in court unless you’ve previously registered.

If you’re a US author, when should registration happen? Contrary to much misinformed belief, there’s no need to register at the submission stage. Theft really is extremely unlikely at that point: a good agent or publisher won’t risk their reputation by stealing, and anyway, it’s a whole lot more trouble to steal your manuscript and pretend someone else wrote it than it is just to work with you. As for a scam agent or publisher, they aren’t interested in your writing at all, only in your money.

It’s not until your work is published—and exposed to a wide audience—that theft becomes a concern and registration becomes important. Contracts from larger US publishers require the publisher to register on the author’s behalf, at the publisher’s expense (though you should always double-check; see the Resources section below). For self-publishers, and writers with smaller presses that often leave registration to the author, registration is easy to do online and costs $45 to $65 (these amounts are important to know, because there are many predatory enterprises that will charge you much more for the same service). If you register before the infringement begins or within three months of first publication, whichever is less, you can recover the full range of statutory damages (up to $150,000, depending on the circumstances). Registration also provides prima facie evidence of copyright ownership, as long as it’s done within five years of first publication.

Writers from countries other than the United States can also register with the US Copyright Office. If your work will be sold and distributed in the US, it may also be infringed in the US, so registering is a good idea.

What about authors of short works—stories, articles, blog posts, and the like? The Copyright Office offers several group registration options that allow you to register up to 50 works at a time, for a single fee ranging from $35 to$85. Registration makes sense even if the works are published as part of anthologies or periodicals: such publications register collective copyrights that protect the publications as a whole but aren’t necessarily adequate to protect individual works.

An Alternative for US Creators: The Copyright Claims Board

Bringing a copyright suit in the event of infringement can be ruinously expensive and is far beyond the capacity of many creators (the Authors Guild estimates the average cost at $400,000). In the US, there’s a recently established low-cost alternative: the Copyright Claims Board.

Approved by Congress in 2020, the CCB allows creators to bring lower-dollar infringement claims (monetary damages are capped at $30,000) without having to hire an attorney or make a court appearance (proceedings are conducted entirely online). Fees are modest—just $100 for a basic claim, only $40 of which must be paid upfront—and as with any US copyright-related legal action, you must at least have applied to register your copyright.

Given that it’s such a new resource, Writer Beware has been keeping a close eye on CCB proceedings since it started accepting cases in 2022 (you can see our collection of posts about the CCB here). So far, to our surprise, literary claims are very much in the minority.

Schemes and Scams

In countries without an official registration scheme, how do you prove authorship?

In addition to drafts, notes, outlines, contracts, correspondence, and the like, there are online services that provide timestamps and certificates or other documents that may help. They can be pricey though, and some try to bamboozle you with claims of super-sekrit encryption to prevent tampering or hype about registering on the blockchain. Mostly, such claims boil down to the same timestamps and self-issued certificates you can get from websites that use fewer buzzwords.

Unfortunately, there are also many “bewares” in this area: from self-publishing service providers that submit US copyright registration applications as an add-on at a much greater cost than you’d incur if you registered on your own; to faux registration services like the Copyrighted.com site mentioned above, which don’t make false claims but use vague language to obfuscate the fact that what they provide isn’t equivalent to official registration schemes; to scams that falsely present as if they actually are official registration schemes, such as the IP Rights Office and its claim to be “the Copyright Registration Service for the United States.” Not only are these a waste of money, but what you get for your cash may not be anything you can actually use.

Be aware also that there’s no such thing as “international copyright registration” or an “international copyright seal” or an “international book seal”. Scammy publishing/marketing companies (especially those from overseas) want you to believe there is, so they can charge you thousands to supposedly obtain it for you—but it is a completely fictional product whose sole purpose is to drain writers’ wallets. Even if there were such a thing, it would be unnecessary: as mentioned above, most countries don’t even have a registration process–plus, per Berne, US copyright is fully recognized by all other Berne signatories, and vice versa.

Here’s what one of these fake registrations looks like. It’s modeled on real registration certificates from the US Copyright Office, with a bogus International Copyright Office seal and fake signature.  

Copyright Myths

At the beginning of this article, I mentioned misconceptions. I encounter these a lot in my work with Writer Beware. Here are some of the most common.

You don’t have copyright protection until you’ve registered with the US Copyright Office. False. As noted above, you own copyright from the moment you write down the words. Registration is an extra step that gives you additional legal benefits.

You own copyright on your ideas. Also false. Ideas are not protected by copyright law, only their expression. Ideas are part of the public domain, and no one has a monopoly on them. Five novelists may come up with a similar idea, but they will produce five different books.

Manuscripts have to include a copyright notice or symbol for copyright to be effective. At one time, the US did require this, but that became obsolete in 1989 when the US joined the Berne Convention (Berne does not require either a notice or registration to effectuate copyright). A copyright notice can sometimes be useful: for example, including one with work published online makes it harder for infringers to weasel out of damages by claiming innocent infringement. But it’s not needed for copyright protection. 

When submitting work to agents or publishers, it’s smart to deter theft by including a copyright notice. This is an instance in which a copyright notice is very definitely not useful. As mentioned above, theft at the submission stage is highly unlikely. Reputable agents and publishers don’t want to risk their reputations that way; just as important, agents and publishers assume you know this. A copyright notice on a submitted manuscript marks you as an unreasonably paranoid amateur.

Poor man’s copyright is a substitute for copyright registration. Poor man’s copyright is one of the most persistent of all copyright myths. According to this theory, placing your manuscript in an envelope, sealing it, and mailing it to yourself is equivalent to formally registering your copyright, as long as there’s a postmark or delivery receipt and you retain the envelope unopened. But not only is that not the case—only registration counts as registration—poor man’s copyright probably wouldn’t be useful even as a secondary way of proving authorship, since it’s easy to fake. You could mail the envelope empty—and fill and seal it later.

Resources

The Berne Convention: the international source of copyright law.

US Copyright Office: the only genuine source for US copyright registration.

Copyright Claims Board: a low-cost small claims court for copyright actions that offers an alternative to expensive copyright lawsuits.

US Copyright registration portal. A single work can be registered online for between $45 and $65, and on paper for $125. There are also several group registration options for short works, ranging from $35 to $85.

Copyright Basics. This circular from the US Copyright Office explains the basics of copyright, including what’s protected, the rights of copyright owners, the benefits of registration, and more.

Understanding Copyright and Related Rights. A much more detailed publication from the World Intellectual Property Office.

US copyright public records system. Here you can look up works to find out if they’ve been registered…including your own. Part of the unwelcome fallout of the Bartz v Anthropic lawsuit has been authors’ discovery that many publishers failed to register their works, even though their contracts required it. It’s always wise to double-check.