18 December 2010. I recently came upon an article discussing copyright issues that really bothers me. Over the past 25 years, I've read a lot of advice on copyright and writing, and most of what I read in the article is a rehash of that. The problem is, I have a Juris Doctorate, and focused on Intellectual property law. So, I know a bit about copyright. That's what this article is about.

The article addresses a common writer's concern. Many neophyte writers are afraid that somebody will steal their completed manuscript and profit. The article points out the normal refrain about “if it's that good, send it to one publisher and collect your check” But, that does not address the root concern. “How do I protect my work?” Stay tuned, I'll give my advice.

The blogger then suggests you send your manuscript far and wide. The more eyes the better. This essentially says don't worry about protecting your book. That's a bit too promiscuous. I felt the article mocked the author for having high aspirations in one part, then provided an alternate extreme that may inadvertently make the work more difficult to protect down the road. Only at the end is there legal advice on protecting one's work.

The U.S. Copyright office does not have great tips on copyrighted works. It tells you what the law is and how to register, but it does not offer legal advice. Printing a completed copy of your manuscript and mailing it to yourself is insufficient proof, as is emailing the novel to a friend. Besides, if you're that paranoid, why would you trust a copy to your friend?

First, your work is copyrighted the moment you document it. That is, when you write your Word document, your text file, or fill up a legal pad with pen scratches, what you wrote is copyrighted—assuming you're not copying down somebody else's effort. An idea is not copyrightable, but your expression of an idea is. (I won't get into patents or trademarks here.) My point is this: your work is already protected.

“Wait, I thought you had to register the copyright?”

Not since 1976 have you had to register a copyright for it to be valid. In fact, your terrible first draft of your steampunk Sci-fi, horror romance mash-up is protected until decades after your death—it may not become public domain for a century! (I personally think that violates Rules Against Perpetuity.)

“Then why should I bother registering?”

Great question, because there wouldn't be a registration ability without value. When you have an unregistered copyright, then you can only stop the infringer from future copyright violation (assuming you can prove your original ownership). When the work is registered, then you can sue for damages. You've heard of the RIAA suing bazillions of people for trazillions of dollars? That's because the works are registered. If you're going to self-publish, then once you've accepted the proof and put the book into print, then go through the registration process.

“Then, why shouldn't I register my copyright?”

When you're still drafting, there's no value to registering. It costs a bit of money, takes time, and it's really meant for finished products. So, it's of little value until you are done anyway.

Second, I have been told some publishers will steer clear of authors who register the work before shopping it. I don't know this for certain as I will be self-publishing. First, if they accept the work they will edit and make you rewrite anyway—creating a derivative work that they would register. That puts them in a bit of a painful position. Second, a new author who registers a copyright telegraphs his arrogance, insecurity and distrust. “My first novel will beat out J.K. Rowling, and I'd like you to publish it but I don't trust you to be a professional so I registered it.”

My perspective is: your work is already protected. Registration is applied to a finished work—which won't happen until the very end of a time consuming effort with a publisher (even if you're self-publishing, draft to proof is many an hour). If you're still looking for an agent or publisher, the book is far from finished. Understand? It's putting the cart before the horse in the eyes of a publishing professional.

“But, how can I protect my work?”

In the end, the lawsuit will involve a lot of “he said, she said.” You both have identical copies of a work, so how do you prove you originated it? Advice is usually given to seal a copy and send it to yourself. I've heard this called a “poor-man's copyright.” That might help, but postmarks can be forged. Emails can be back-dated. It's way too easy for fraud to work against you. More importantly, how do you know (or your lawyer) know that what you have in that envelop is what you claim it is? If you open it prematurely then the alleged “value” of mailing it is lost.

Again, which stage are you in? Draft? first revision? Proof? Are you prepared to do this at every step? As you'll see in a couple paragraphs, I mention a variant on this that I've read has held up in court.

Register. The best way is to register the copyright. This should only be done for finished works, and would involve sending two copies to the Library of Congress. Unfortunately, their policy is to destroy those books after validating ownership. But, the registration is legal proof of copyright. You see above that some publishers (or agents) will not take a registered work.

Demonstrate an Evolving Work. Another way, and the one that helps authors who share their work during the drafting process, is to keep all your notes. You see, a person who pounds out fifty to one-hundred thousand words is going to have notes. Notes on characters, notes on settings, maybe a plot outline, if you're a plotter. You're going to have original drafts of each scene. During the revision process, you're going to have copies of your earlier manuscripts oozing red-pen. You keep all that information in a cardboard box or an accordion file. Date the various copies, if you like. Keep a private Journal (perhaps using Moleskine?) about your progress and frustrations—dated. Even blog articles and Tweets could help build evidence. Somebody who attempts to plagiarize your work won't have those notes.

This is demonstrating an evolving work to the court. You show the process of creation and production, what is the plagiarizer going to show?

This “tactic” was used in the SCO v. IBM lawsuit, where SCO claimed Linux was a derivation of their Unix. Linus Torvalds was able to show version history going back to the very first release of Linux. He was able to demonstrate not only how the kernel evolved, but how he got better with time—he made some bad coding errors in the beginning. This would not have been possible to prove if the work were plagiarized. SCO dropped that claim.

Here's what I do. If you're me, you'll have your material in a version controlled repository. I keep each scene in its own file, in a rather odd directory structure. I also still have that ancient habit of saving the file every five to ten minutes. It takes me at least an hour to finish a scene; so I will have multiple copies of the file—from the original scene diagram to the first draft. As I revise the manuscript, those files will continue to change. As I said in an earlier article, I keep that all in a secure, version controlled environment.

I also compile my manuscript into a PDF. During the drafting, I do it every few days. That PDF is also kept in the repository; showing with a single document the progressive evolution of my work.