Questions About Copyright, Pen Names, and 1099s

August 10, 2014

http://www.dreamstime.com/royalty-free-stock-photography-beautiful-girl-standing-many-red-questions-image29878897Today, I am going to answer questions posted by readers through emails, my website, and even Amazon reviews. I appreciated when readers take the time to ask questions. It helps me know what’s on your minds.

QUESTION: Oh no. I published my book last year and never registered it with the U.S. Copyright Office. Is it too late?

ANSWER:  No, it’s not too late. You may register a copyright anytime within its lifetime (currently, life of the author plus 70 years). In fact, you must register your copyright before you can sue someone for infringement. And there are some extra benefits of registering promptly.

For published works:

  • If you register your copyright before the end of three months after the date of first publication, you have the right to recover statutory damages, meaning you do not have to prove lost sales. Statutory damages are between $750 to $30,000 per work (and up to $150,000 per work if the infringement was willful). Plus, you may recover attorney’s fees and costs, making it easier to hire a lawyer on a contingency fee basis.
  • If you register your copyright within five years after first publication, then your copyright is presumed to be valid. The defendant/infringer will have the legal burden of showing that your copyright is invalid. This is a strategic advantage in litigation.
  • Registration provides notice to everyone that you own the copyright, making it harder for infringers to claim “innocent infringement.”

If your work is unpublished, you must register it before the end of the first month after initially learning your work was infringed in order to recover statutory damages and attorney’s fees.

Registration online costs $35. There is no reason to put it off.

QUESTION: Many child custody and other trials end with the parties entering into settlements and confidentiality agreements. How can I write about these cases or speculate about the settlements without violating some law I don’t even know about?

ANSWER: You may write about anything that happens in an open courtroom. Confidentiality agreements do not apply to information already made public in the courtroom or in court filings. In fact, court transcripts, testimony and pleadings are rich sources of material.

Regarding other confidential information, if you are not a party to the agreement and have no relationship of trust or responsibility with the parties (such as you are a parent, therapist or lawyer), you are not bound by the confidentially agreement. However, I would be cautious about using information obtained from someone who is bound by the confidentiality agreement. You could find yourself dragged into the dispute because you benefited from their breach.

QUESTION: For my book cover, I want to use a photo taken by a friend. He says he wants no money for it? I would like to compensate him if the book sells well. I also want to manipulate the image and combine it with others. I don’t want any problems later on, let’s say if his heirs want payment for the photo. Do I need some kind of agreement with the photographer?

ANSWER: I highly recommend your friend grant to you IN WRITING either (i) an assignment of full ownership of the photo, or (ii) an exclusive, world-wide, perpetual license, including the right to alter, manipulate and create derivative works of the photograph. I suggest you pay him something, or at least write out your promise to pay him upon reaching certain milestones, such as the sale of x number of copies.

Your agreement is valid even if it is not in writing, but all you would have is a non-exclusive license (permission) to use the photograph. The photographer or his heirs could sell the image over and over again.

QUESTION: If I use a pen name and it happens to be the same as a real person’s name, could I be accused of identity theft?

ANSWER: Identity theft means far more than using the same or similar name. You would have to be using that person’s social security number or other personal information to step into their shoes, perhaps by applying for credit.

Choosing a pen name which is the same as a living person is not a problem unless the person is famous. Using the name of a celebrity, such as Jude Law or Cameron Diaz, is asking for trouble. Similarly if you use a pen name such as Martha Stewart or Ralph Lauren (both which have become trademarks), you are likely to get a cease-and-desist from their attorneys.

QUESTION: You mentioned that a writer should deliver a 1099 tax form to any freelancer who is paid $600 or more in a single year? My cover designer is in Australian. Do I give her a 1099?

ANSWER: No. You deliver 1099s only to U.S. taxpayers who are individuals, not corporations.

QUESTION: How does a writer create a fictional website in a book, similar to how books and movies use a 555 phone prefix for fictitious phone numbers? If I make up fictitious websites, should I buy up the domains to keep someone else from grabbing them?

ANSWER: Buying the domains mentioned in your book would be the best protection and a clever marketing trick. You could direct clicks to your home website page or set up websites for each character or fictitious company in your book. But it would be costly in terms of time and money

The more practical approach would be to use made-up tags such as .ccom or .nnet or even .555. Some readers may get the reference.

MORE QUESTIONS? PLEASE POST THEM IN COMMENTS BELOW OR SEND ME AN EMAIL FROM MY CONTACT PAGE.

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3 responses to “Questions About Copyright, Pen Names, and 1099s”

  1. tbsbet says:

    Even today, women Authors will either use their initials and or use a male pen name. An example would

  2. Julia says:

    Hi Helen. Are you saying that authors need to register their copyright AND buy ISBN numbers? Apropos the second part (ISBN numbers), what is the proper place for authors to buy these, presuming they intend to self publish? Thank you!

    • Julia, You own a copyright in your original work as soon as you put it down on paper or in a computer device. You may, in addition, register the copyright with the US Copyright office. Thirty years ago, you had to register your work if you wanted your copyright to remain valid. Now the copyright attaches automatically. So an author does not “need” to register the copyright, but it’s a good idea because registration creates a record of what your work looked like as of the date of registration and you can’t sue someone for infringement unless you register the work.
      Regarding ISBNs, those are different from the copyright. An ISBN is merely a number which is assigned to a particular book in a particular format so that bookstores, libraries and buyers can find it. You may purchase your own ISBNs, which I recommend, or you may use a free or low cost ISBN from CreateSpace or another self-publishing company. There are some downsides to that approach. For more info, check out https://www.bookworks.com/2016/08/isbn-qa-everything-you-need-to-know-about-barcodes/
      and
      http://helensedwick.com/how-many-isbns-does-one-writer-need/

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