Answering Questions About Copyright

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I love my readers.

Not because they buy my books. I like that.

I love my readers because they ask interesting questions. I read your emails, sit back and give an audible hmmmm. Your questions challenge me to take abstract legal concepts and apply them to real people, real books, real problems. Often with a new twist.

From time to time, I like to share some of the general questions readers send me and my responses. I have revised the letters to make them more generic and removed all identifying information.

Today, some copyright questions:

May I use images for publishing books if I put a resource and reference in the book?

Many people make the mistake of thinking that giving credit to the original illustrator, photographer, or writer is enough to protect them from a claim of copyright infringement. It’s not. If the original image or other work is subject to copyright, then assume you need to get permission to use it. There are some exceptions for what is called fair use, but the fair use exception is narrower than many people realize. I would not rely on the fair use exception without consulting with an attorney with a firm understanding of the law and the exception.

I am translating Little Women into Bantu and will be self-publishing the book. Little Women is in the public domain, and my question concerns some illustrations that were used in an edition of the book published in the 1970s. Are these illustrations also in the public domain?

Very good question. You are correct that Little Women by Louisa May Alcott is in the public domain because it was first published before 1923. However, the illustrations would be protected by their own copyright. They do not lose copyright protection by being used together with a public domain work. So, if those illustrations were created in 1923 or later, you should not use the illustrations without permission from the copyright holder, which is most likely the publisher of the 1970s edition.

I have written a novel about real people and real events in the 1920s. Some of these people were public figures, and all of them are dead. I took letters I found in my research, including some that were in books printed in the 1940s. I have rewritten the original letters in my own words and used them in my novel. Their meaning is similar but the words are different. I have also taken events and facts from old nonfiction books and used them in the novel. The facts are all public knowledge and in the public record. I have stated the sources. Can I get into legal trouble for this?

You are on the right track. Factual names, events, and information are not protected by copyright. You may use them as the basis of a novel. In fact, many bestsellers fictionalize history by using historical figures and events and creating scenes, dialogue, and a supporting cast of characters. Look at Wolf Hall by Hilary Mantel.

In case any of the original letters are subject to copyright protection, rewriting the letters should get you around the copyright hurdles.

I’m a new author and was just wondering do I really have to wait until I get my copyright registration certificate from the U.S. Copyright Office in order to start selling my book? The wait just kills me when I just want to get my book out for people to read! Please help me!

You don’t have to wait at all. You may start selling your book right away. Yes, before your register the copyright, even if you never register the copyright. There are benefits to registering the book within three months following its first publication; you may be able to collect statutory damages and recover attorneys’ fees in an infringement case. But even if you miss that three-month window, it’s still worth registering your copyright. It creates a record of what your book looked like as of the date of registration. Plus, you cannot sue someone for infringement until you register the copyright.

I have transcribed letters written during the Civil War from my great grandfather plus added background and history to make a complete book of about 250 pages. My question concerns the ownership of my book. The letters had been in the possession of my cousins and they sent them to me for this project. Do I need some kind of release? Do we have joint ownership, or since I did all the work, do I have ownership of the transcriptions and therefore the book?

Good questions. First, let’s distinguish between the ownership of the physical letters and the ownership of the copyright in the content of the letters.

Since the physical letters have been in your cousins’ possession all these years, let’s assume they were given ownership of the printed letters along the way. For that reason, it would be preferable for you to get permission from them to use and transcribe the letters. An email will do.

As far as ownership of the contents of the letters, at this point the contents are in the public domain because the copyright has expired. Neither you nor your cousins own the contents or underlying story. Anyone may use the content and the underlying story idea.

(By the way, if the letters were from the Vietnam War, any copyright interest in the contents of the letter would belong jointly to all the heirs. Any one of you could reprint those contents without permission from the other heirs, but you would have to share any profits with all the heirs. But I am digressing.)

There is no copyright to own in the transcriptions. Merely making a copy of something is not considered a “creative” work entitled to copyright protection.

However, you own the copyright to the material you wrote for the book, the rest of the 250 pages. Your cousins do not. If they want to write their own books using the letters and historical information, then may do that, and they would own the copyright in their own writings. But not yours.

I hope this helps.

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9 responses to “Answering Questions About Copyright”

  1. Benjamin W says:

    For blogging, I have relied on images whose creator has released under Creative Commons license. I’ve also taken to adding a presumptive copyright lapse based on the current law and actuarial tables.

    Thanks for this blog post

  2. Sue Meenot says:

    Hello. I suffered terrible abuse at the hands of a former boyfriend who also happens to be a convicted felon and registered sex offender. His criminal record is lengthy, and includes several prison sentences/years served, and parole violations.

    There are 16 mugshots online as part of the public record, along with several of his aliases. I also have numerous cards and letters he sent me from prison, as well as pictures of the two of us together and pictures I took as screen captures from video calls, etc. I want to include all of these elements in the book, as it’s a chronology of the abuse, my escape from him and my journey toward healing.

    Because he is a convicted felon and listed on the national and state sex offender registry AND I can prove the veracity of every single allegation I make in my book (letters, recorded phone calls – the prison records all calls), would he possibly have any cause of action against me? There is absolutely no defamation, since he has no character to defame (and a convicted felon, etc.), and it’s not libel because it’s true. It is not meant to embarrass him but can be perhaps be considered a warning to other potential victims, many of whom probably have no idea how dangerous he is, since though he’s on the registry, he does use aliases on social media and elsewhere. And even when he does use his real name, most people do not search the national sex offender registry for new associates, etc.

    I would very much appreciate any information or light you can shed on this. The book is nearly ready to publish, and I’m super excited about it. I feel confident that I can proceed with his full legal name, aliases and images and likeness without any fear of litigation from him, since he is not a private citizen as such.

    Thanks so much,

    *Sue (*not my real name, but will share it via email…)

    • I’ve written quite a few pieces on this topic. Look at my Press and Events page for links.
      Legally, your book might not be considered defamation for all the reasons you mention. But no attorney can guarantee that he won’t sue you, even if his case is weak. Plus, by using his name you are inviting him back into your life. I am not saying don’t use his name, but consider how important is it for people to know his real name.

  3. Jo Gaskin says:

    I found a name I really like for a character in my fantasy novel, but it also happens to be the name of a company. I can, of course, modify it, but since the two are different types of copyrights I was curious if I should even worry about it.

    • Jo, If you are talking about the name of a company, then trademark rules apply, not copyright. And whether you can use that name really depends on how famous the trademark is. If it’s a well-known trademark, you may run into problems.

  4. In my current novel, I have a villain who loves to quote movies. Can I get in trouble for that?

    • Keep the quotes short and keep them relevant to the story-line and character. That’s more likely to be considered fair use. But do some reading about fair use so you get a better idea of the opportunity and the limits.

  5. Dear Helen, I’ve searched all over for this. A colleague had found a series of writings (all with no attribution but one) at a historic site in Europe that were left at the site but which would have eventually been thrown away by site managers. He wants to translate and publish these writings in the U.S. There is no way to track down the authors, except for the one which has an attribution, and even that one may impossible to find the author. So, basically, unattributed writings, left in a public (?) area, with no way to properly attribute, written in a foreign language found in a foreign country. Thoughts? OK to publish with some sort of statement about copyright, and if anyone has a claim, etc.? We’re totally stumped. Thanks for any thoughts you may have.

    • Jeffrey, You are describing a classic orphan works problem. There’s no easy answer, as you will see if you search the term orphan works online. And the law of the country where the works were found would apply.
      How old are the works? Could they be in the public domain?

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