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Saturday, October 1, 2011

What Every Writer Should Know about Copyright

As a freelancer, you make a living from your words. That’s why I’m always so surprised at how few writers actually understand what copyright is--and how to protect it.

No, copyright isn't sexy. But if you take a few moments to read this post, you'll come away with a working knowledge of what it means for writers. Ready? Let's do it!

Here’s the least you must know about copyright:

1. When you write an article, book proposal, or book on your own, you automatically own the copyright to it.

2. You retain copyright, or ownership, of the work unless and until you sell, transfer, or grant the copyright to someone else.

That’s it! But let’s talk about what copyright actually is. According to the U.S. Copyright Office, “copyright” is a form of protection provided by U.S. law to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual rights. Copyright means that the author of the work has the exclusive right to do what he wishes with his work and to authorize others to do the same.

So as the copyright owner, you (and only you) can do whatever you want with the work you’ve created—until and unless you sell, transfer, or assign those rights to someone else, like a publisher. That’s copyright law in a nutshell.

New writers often think they have to register their work with the Library of Congress to create copyright. That’s not true. Copyright protection is created concurrently with the work—as you get the words down on the page (what the law refers to as “in fixed form”), it’s automatically copyrighted. But it’s got to be “in fixed form.” An idea is not is fixed form, and so isn’t protected by copyright law.

The Work-for-hire Exception

Of course there is an exception to every rule. With copyright, the exception is when you are an employee, creating work for an employer. Then, the company you work for owns the copyright to anything you create at work under what’s called the “work-for-hire” doctrine. In that case, your employer, not you, automatically owns the writing you do at work. (Some freelance contracts also have work-for-hire provisions; legally speaking, though, a work-for-hire can only exist between an employer and an employee, not a freelancer and a client.)

Making Sense of Copyright Notice

Simple enough. So then what’s with the copyright symbol (©)? Why do people stick that on written work? The reason has to do with something called the “innocent infringement” doctrine.

Copyright notice simply lets everyday people (i.e. those who know nothing about publishing law) that this work is someone’s property. If there’s no copyright notice on a piece of writing and someone copies or uses it for their own purposes (assuming in good faith that it’s okay to do so—what the courts call an “innocent infringer”), that person may not be liable for damages. That’s why notice is required—to let would-be innocent infringers know that they can’t use your work.

The notice required is the copyright symbol ©, followed by the date the work was first published, and the author’s name—for example, © 2011, Kelly James-Enger. That’s why books have a copyright page—to help protect the work from no-longer-innocent infringers. Just keep in mind that if you’re sending work out to anyone in the publishing biz—agents, editors, or publishers—you needn’t stick a copyright notice on your work. They know it’s copyrighted—and it looks amateurish.

For More Effective Protection...

There’s one last thing about copyright that freelancers should keep in mind. Yes, your work is automatically protected by copyright simply by writing it. But if you want effective protection, you should register it with the Library of Congress. To pursue a copyright infringement case, it’s easier and more lucrative if you have registered your work “in a timely fashion” (within three months of publication) with the LOC.

The copyright statute provides that if you prevail, you can get attorneys’ fees (which can easily reach tens of thousands of dollars) and statutory damages—in other words, monetary damages set out by law. (Contrast this to having to prove your damages in court, which is much more difficult.) If you’ve registered your copyright, you can introduce that fact at trial to prove you’re the legal copyright owner. That’s big. If you don’t register your work within three months after it’s published, you may still have a cause of action for infringement, but you’re limited to injunctive relief and/or actual damages—that is, the amount of money you have lost because of the violator’s actions, which may be impossible to conclusively prove.

Registering Work

So, once your work is published, you have three months to register it. (Registering is retroactive, which means that registering within those three months protects you back to the publication date.) Current fees to register with the Copyright Office are:

$35 to register work online;
$50 to register work via paper registration; and
$65 to register a group of articles or other work for periodicals or database updates.

For more information about copyright registration procedures, visit

***Want to learn more about legal, business, and tax issues that impact freelancers? Check out Six-Figure Freelancing: The Writer's Guide to Making More Money, which is still available as an ebook. If you're interested in adding ghostwriting to your freelance repertoire, you'll want to read Goodbye Byline, Hello Big Bucks: The Writer's Guide to Making Money Ghostwriting and Coauthoring Books (Kindle edition).

Readers, what do you think? Did this post make copyright understandable for you? Let me know!


  1. Actually, a work made for hire relationship *can* exist between a freelancer and a publisher, though not in all cases. There are specific categories in the law.

    Also, although it is best to register copyright within three months, if you haven't, you can register it at any time up to five years and still get the legal presumption of being the author. However, registering either within three months or *before* a given infringement gives you extra legal protection. For example, you could sue for so-called statutory damages rather than trying to prove what profits the article provided. You can also then sue for legal fees.

    You can also register more than one piece for the same fee. Best thing is to register in batches four times a year.

  2. Great post Kelly! Don't most freelance markets (newspapers and magazines) retain copyright for only a fixed period, as specified in the freelancer contract (90 days, for example)?

  3. Erik, thank you so much; I wasn't aware of the difference between three months and five years and that's very helpful! And I forgot to mention that yes, you can register more than one piece at a time. Thanks again!

    Nancy, it depends on the market, but I'm seeing more places wanting all rights forever, not for just 90 days. As always, read contracts very carefully! :)