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August 5, 2013
By Betty Kelly Sargent
This useful primer explains everything from copyright registration to fair use cases.

When T.S Eliot’s The Waste Land was published, E.E. Cummings wanted to know “why Eliot couldn’t write his own lines instead of borrowing from dead poets,” according to a recent article in The Huffington Post by David Galenson. Robert Frost said Eliot had created “an anthology of the best lines in poetry, strung them together, and copyrighted the result.”

So what’s the fuss all about? Did Eliot really steal from other poets, or were Frost and Cummings just jealous? Perhaps it was a bit of both. But why wasn’t the work of those dead poets protected by copyright, or was it? Good question.

Copyright law can be pretty confusing even for intellectual property lawyers. But the good news is that, now, thanks to the Internet, figuring out who owns what and how to protect what you have written has become easier than ever.

First of all, it is important to understand how copyright works, and what can be copyrighted and what can’t. Copyright protects “original works of authorship” that are fixed in a tangible form. This includes literary, musical, dramatic, and choreographic works, pictorial, graphic, and sculptural works, motion pictures, sound recordings, and architectural works. As you probably know a copyright notice looks like this: Copyright ©  (year of creation) (your name).

The fact is that your work is protected by copyright from the moment you create it in a tangible form. That’s right. You can write your novel, stash it in the trunk of your car, and it will be protected, even if you have not registered it with the U.S. Copyright Office. But at we encourage self-published authors to register their work anyway, just to be on the safe side. It is not hard to do, and it could make a big difference if you ever find yourself in court claiming copyright infringement.

Here’s how you do it.  Before showing your manuscript to anyone fill out a pre-registration claim. 

Go to:

  1. Create a username and password for eCO;
  2. Follow the instructions for registering your work-in-progress; and
  3. Get your pre-registration claim number by paying the $115 they require, and bingo, your work-in-progress is protected by law.

Then, when you have your e-book in its final digital form, you can complete your copyright registration this way.

Go to:

  1. Log in with your username and password;
  2. Fill in the required information and include your pre-registration number;
  3. Upload your e-book;
  4. Pay an additional $35;
  5. Receive your copyright number.

Now, you are good to go. It should take about four to six weeks for the number to arrive, but this way you know for sure that your intellectual property is fully protected by the law.

The advantages of registering your work are:

  1. You will have proof of the date of creation.
  2. If you bring a claim against an infringer and prevail, you are entitled to damages set forth in the Copyright Act. You don’t have to prove actual damages.
  3. Perhaps best of all, you are entitled to your attorneys' fees if you prevail. Without this, you may find it difficult to get an attorney to take your case.

The term of the copyright is the author’s life plus 70 years, whether you register your work or not. Be sure to mention your copyright in your will since your ownership of a book can be a valuable part of your estate.

It is also important to understand what CANNOT be copyrighted.  Here’s a list:

  1. Titles, names, short phrases and slogans, listings of ingredients or contents.
  2. Works in the public domain and U.S. government works.
  3. Ideas, facts, methods, procedures, processes, concepts, principles, or discoveries.
  4. Works made up of information that is common property like the phone book, lists, or tables.

I’ve always been intrigued by the fact that book titles cannot be copyrighted, which is not to say that they cannot be trademarked. As I see it, this means we could all sit down and dash off a manuscript called Gone With The Wind or even The Waste Land and that would be just fine. Now there’s an idea.

Back to T. S. Eliot. What is fair use and how does it apply to the poetry he may have “borrowed”? Fair use is a doctrine developed to allow reasonable and limited use of copyright-protected material. Each case is decided on its own merits. When a critic quotes a brief excerpt from a book she is reviewing that is usually considered fair use. When a writer quotes a passage from another book and credits the original author, this too is usually considered fair use.

But, figuring out how much of another writer’s work you can use without getting permission (ie. “fair use”) can be tricky. The law usually boils it down to four questions:

  1. How are you using the other writer’s work? What is the purpose of your use?
  2. What is the other work -- for example is it creative or primarily factual?
  3. How much of it are you using?
  4. Is your use going to reduce the ability of the other writer to license uses of his work?

These days, in many fair use cases, the courts have been looking at whether your use of another’s work is “transformative” -- in other words, does it add value to the original work and repurpose it for another audience?

When in doubt, seek permission from the original author or the author’s estate.

Even if you are not able to connect with the original copyright holder, the fact that you have tried should work in your favor if ever there were a problem. And, even if you are turned down, the U.S. Supreme Court has said that if a use is a fair use, the fact that you asked and were turned down doesn’t undercut your claim of fair use. Whenever you are unsure about whether or not material you want to use from another work falls into the fair use category, be sure to check with an intellectual property lawyer. 

As for Eliot, he believed that poetry is “a living whole of all the poetry that has ever been written.” I’m no lawyer, but that sounds pretty transformative to me.

Betty Kelly Sargent is founder and CEO of BookWorks.