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Words for Writers: Protecting Your Work

Words for Writers: Protecting Your Work

More Q & A Time based on some questions I’ve gotten recently.

Before I dive into this topic, I want to clear up a pair of definitions, which are very important for you as a writer to know.

Intellectual Property – (I often refer to this as an IP below) – This is the idea that you own. It is the world, the characters, the concepts, the narrative that you created. IPs are intangible in essence, but can be written down as a Manuscript, a Screenplay, a invention design, etc.

Book – A book is the product that the publisher (either a traditional publisher or you, as your own self-publisher) creates using your Intellectual Property. A book is a physical or electronic thing that is bought and sold, and has things like a cover, images, and typesetting. The content of the book is your IP.

So for example: I own the characters Basil Grey, Gwen Pierson and Kalp, and the concepts of an Aglunate and Unit, and the particular world narrative that I wrote; and Dragon Moon Press is the publisher of the book Triptych.

 DMP does not own the IP but does have the exclusive contractual right to publish books and ebooks of Triptych, as per the agreement we signed together.

If for some reason DMP decides it doesn’t want to publish Triptych any more, or I decide to part ways from them, then the IP goes with me and they have no permission to publish Triptych any longer, in any format, including a new one. However, I have no rights to say what they do with those copies of Triptych that already exist.

Simply put: The IP is mine; the book is theirs.

Also, before we get into this topic, you might want to swing by Gabrielle Harbowy’s blog post on TRUST ISSUES, which is a great primer. Alright, ready to go? Let’s dive in!

Right, on to the frequently asked questions!

 Q: How can I copyright my work?

The Government of Canada website says this about copyright:

“The general rule is that the author/creator is the first owner of copyright, subject to any agreement between parties that states otherwise. The owner can give, assign, or license copyright in parts or in its entirety. There are special rules for works created by employees that vest copyright in the employer, and for commissioned photographs, portraits or engravings that vests copyright in the person commissioning the work as long as the creator is paid for the work.”

In short: the minute you write it down, you own it. Unless you sell the intellectual property in its entirety ad infinitum. (I can’t recommend or not recommend selling your IP – this has to be a personal choice.)

Q: Yeah, but if I want to be really sure?

  1. Registered Mail: print your manuscript, package it up, take it to the post office and mail it to yourself via registered mail. Do NOT open it when it arrives, and put it in storage until such a time that you need to produce the package before a judge/court/legal council to prove the authenticity of your draft. The date on the package and the fact that it is unsealed means that whatever is inside existed on the mailing date. They will then open the package and review the content and compare it to whatever it is that is challenging your IP’s age, authenticity, and originality.
  2. Keep sequential drafts in your hard drive and on an external drive and make sure your copy of your writing software is legally registered to your name and address, in case someone needs to verify the fingerprint details of the documents. Always back this chain of drafts up with an external hard drive or a cloud drive, or a thumb drive, etc. (I do all three because I’m a paranoid bastard and my computer has a history of garbling files).
  3. Use the Writers Guild of Canada registry bank, or any similar registry run by a creative guild or union in your country. (A word of warning: this may cost money! Be prepared to pay an archival fee, and possibly an annual fee to keep it archived on top of that.) Each archival bank will have its own rules, so read them carefully.

 

Q: What about registering an ISBN Number?

ISBN (definition) numbers are assigned to individual books when the books are ready to become products that a consumer can buy. Both ebooks and print books have ISBN numbers.

ISBN numbers are for books, not IPs.

If you are going the traditional publishing route, your publisher will take care of acquiring and assigning an ISBN number to your book. You don’t need to worry about that in advance.

If you are self-pubbing, you can read about getting an ISBN number here.

Q: I heard that you can get zillions of dollars just thinking up ideas and selling them.

Some people do. Usually because they have gigantic names and can command that kind of fee. If you don’t have a gigantic name, a high powered agent, and command that kind of fee, please rethink your expectations.

Generally, if you are a new name, agents and publishers will only look at work that’s already complete. You need to prove that you can not only have awesome ideas, but that you can follow through and complete them, and actually write well.

Most people are so busy thinking up their own ideas that they have no time or desire to develop yours. And most people don’t buy a half-finished project. So you’d spend your time better writing your own ideas than trying to sell them with no work to show for it.

Q: What if someone options my book for a film?

This is a bit complicated. Technically speaking, if we’re going to talk nitty gritty economics of who owns what, when, it goes like this*:

i.      You write a book and therefore you own the Intellectual Property/Copyright

ii.      You lease that IP to a publisher on the agreement that they will make it into a book and sell it (this may or may not include clauses for foreign rights versions, alternate print runs and covers, audio books, merchandise, etc.)

iii.      The publisher pays for the right to lease the IP by giving you a cut of the sales (i.e. your royalties). If there’s merchandise based on your IP (example: teeshirts, posters, etc), then your agent may be able to bargain for a percentage of that, as well. But that depends on you/your agent/the publisher/etc.

iv.      Said lease may be in ad infinitum (meaning, forever) or for a set number of years, or until either of you invoke your Sunset Clause and renege on the deal (usually only done if the author is a complete harridan and bruises the publisher’s business, or if the author and agent agree that the publisher is no longer a fit for the book). There are all sorts of other clauses and subsets in here, so don’t take this as law.

v.      Right, so then you have a book out. And someone somewhere with some pull reads it (or reads about it) and decides they’d like to make a film out of it.

vi.      A production company approaches you/your agent/your publisher to obtain the permission to make a single film/TV series/radio drama/whatever.

vii.      You still own the IP.

viii.      The production company goes into talks with your agent/your publisher.

ix.      The production company leases the IP from you for the right to make an audio-visual production of your IP. Usually there’s an agreement with the publisher as well for cross promotion/optioning rights/etc. but as I’ve never seen that side of it, I’m not certain which way the money crisscrosses, or what sorts of deals the publisher and production company make with one another.

x.      You get an optioning fee from the production company for the right to lease your IP and make the production. Your agent/publisher might also work into your deal a percentage of box office/green-lighting fee/merchandise/ etc. They may also work into your contract the option to write the screenplay or work with the writer(s) as a co-writer or a consultant.

xi.      Generally, for every year that the production company holds a reserve on your IP, you get an optioning fee up until the project is green-lit. After the project is green-lit (that is, production officially begins), you will not receive another option fee. Sometimes instead of doing a yearly optioning fee, you may get a lump-sum and will sign a contract saying that you’re okay with that. As long as the production company wishes to hold the option to make the production, they can do as long as they pay you your fee. This means that they could hold it for decades and never make a production from it, and that is their choice. It’s legally allowable as long as they keep paying your optioning fee (though it can be frustrating for writers!) Sometimes there’s a times-up clause added to contracts stipulating that the option expires if a production isn’t made after a certain number of years. There is a very good reason for all this waiting – producers have to find the money to make the film and cannot be worried about you wandering away with the IP while they’re hitting up investors and granting agencies. They pay you to reserve the lease on the IP so they can have the time to get their team together.

xii.      THUS – your ownership of your IP is still forever your own, unless you sell it to the publisher/production company. HOWEVER, the production company/publisher ALSO has the right to copyright anything they make up/add to the IP. For example, J.K. Rowling owns the IP for Harry Potter, but Warner Brothers owns the visual representation of Harry Potter (i.e. pictures/videos/dolls/games/etc. of Daniel Radcliffe while he’s playing Harry Potter. I assume that Mr. Radcliffe gets a cut of those profits for leasing his image to WB).

 *This is based on what I’ve learned reading guild and union websites, my own contracts, and chatting with authors who’ve had their work optioned/producers who’ve optioned work. This may not be the exact path or reality for everyone. Always, always consult with your agent. Also, I might have misunderstood and therefore misrepresented some facts – in which case, please feel free to correct me so I can make this more accurate!

 

Q: Is some editor or agent going to steal my ideas or my work when I submit to them?

This is the number one question I get. Thing is, if an editor or publisher likes your idea, they’ll SIGN it, not STEAL it.

Editors and agents only make money when you, their author, makes money i.e. when your book is published and that book sells. Their job is to make their clients/authors money. They won’t ever make any money if it gets out that they’ve stolen someone’s ideas – they will be blacklisted and boycotted and will never work again.

Thus, it’d be pretty damn stupid for them to steal your ideas, wouldn’t it?  They are in the business of publishing books, not stealing them. So no, I wouldn’t worry about some editor or agent stealing your ideas or work.

That said, always faithfully and thoroughly research the publishers, editors, and agents you’re querying. If their vibe is off, don’t do it. If there are websites warning you off these people, don’t do it. If they ask for a fee up front, be wary. When in doubt, email some of their other clients and ask if they’re happy.

There are organizations that certify and verify agents/editors. You can look into them and see if your agent/editor of choice is on that list, if you so desire.

Q: What if I get plagiarized?

Take a deep breath. Contact your agent. They have solicitors on staff or are trained themselves to handle this. Be prepared to offer up proof – your drafts chain, that registered mail package, or print copies of earlier drafts that show the organic progress of your work. If you have no agent, inquire with author folks about entertainment lawyers they know and recommend.

Do NOT attack the person you think plagiarized you. Do NOT immediately contact the author you think plagiarized you, nor their editor, agent, or publisher.

Build your case of proof and follow the advice of legal counsel.

Be sure that you really HAVE been plagiarized before you ask for someone to look into it. Be aware that a zeitgeist can cause many similar novels to come out at the same time, or that someone might have just randomly had an idea like yours, or had been inspired by the same thing that inspired you, etc. It has to be quite specific for it to be plagiarism – the lifting wholesale of passages, or concepts, or characters. Read this definition of plagiarism for more details.

Also, book titles aren’t copyrightable unless they’re really super specific. For example: There were three different books named Triptych that came out the same year as mine did; there is a famous Karen Slaughter book by the same name that I was unaware already existed when I named my novel; there is a film of the same name coming out in the next few years. But we can’t sue each other because the stories, covers, genres, and narratives/plots/characters are all very different.

However, if I were to write a book about a young witch named Karry Rotter and talked about how she goes to Magic Day Care, then I’d be infringing on Rowling’s copyright as it’s clear that I’m deliberately recalling and imitating her work. Unless it’s satire.

Parody, satire, and transformative works (fanfic, mashups, social commentary, etc.) are protected by Fair Use laws. Read up on that if you’re uncertain what all of that means.

Some authors endorse fanworks (I do! I do!) Some choose not to comment on fanworks, and some actually ask fans to not create fanworks for personal or legal reasons – please be aware of who does and doesn’t endorse fanwork if you are choosing to do a fanwork based on their IP and be aware that you could be delivered a Cease & Desist if you disregard an author’s posted preference.

Q: Are print zines and collections more reputable than online ones?

One medium is not inherently more trustworthy than the other. It’s the people behind the publishing company you should be evaluating.

All I can say is “do your research”. Read up on them, check what some of their other published authors say about them, etc.

Q: Should I have to pay for reviews or to enter contests?

Generally speaking, money should always flow towards the writer. (Even when there are diversions in the stream to make sure your agent/editor gets their hard-earned percentage).

Some contests or review sites have fees to enter your work – this is usually just to offset admin costs, or the cost of mailing your books out. Read the fine print very, very carefully and see if it’s worth it. Ask friends or other writers who may have experience with that group to see if they think it’s legit. If you don’t know, email the contest/reviewers and ask them to please break down the fee you pay, and where the money goes.

In the end, if it gives you the wibbles, don’t do it.

 Q: How do I know who isn’t good to submit to?

Check out Preditors and Editors; read write ups on publishers/editors/agents on Absolute Write, DuoTrope (pay) and similar sitesMSFV, etc.; talk to or email clients/authors who have worked with those people before and ask if they’d recommend them; etc.

In the end, my biggest piece of advice is

do your homework.

 

Does anyone have any other sites they use to register their work, or research agents/editors/publishers websites or books that they’d like to share?

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For more posts on the business and craft of writing, search my Words for Writers tag.

 

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