A Bundle of Rights: Traditional Publishing vs Self Publishing
The Copyright Act of 1976 grants to the author of a copyrightable work a “bundle of rights.”
This “bundle of rights” as provided by federal copyright law invests the creator of a work with exclusive rights to control the reproduction, adaptation, publication, performance and display of his work.
Historically authors would transfer their “bundle of rights” to a publisher under some sort of contract in order to allow that publisher to “publish” or to reproduce and distribute the copyrighted material.
Today authors are able to retain their bundle of rights and full control of the publication of their work by opting to “self publish.” Self publication allows the author to regulate all aspects of the reproduction, marketing and distribution of his creative work.
How to Navigate the Copyright Minefield
It is important that a self publishing author fully understand all the duties and responsibilities which may arise by operation of law as a result of the reproduction and distribution of his work. He may be required to obtain one or more copyright transfers or licenses to reproduce certain material that he would like to include in his planned publication.
For example if he wants to include copyrighted text, photographs, drawings, maps or similar graphic designs he will need to obtain either a copyright transfer or a written grant of permission to use the material called a license from the copyright holder.
Is a Copyright Transfer or License Even Needed?
In general copyright protection is available for an original work of authorship fixed in a tangible medium of expression.
If a self publisher would like to include a special photograph, a quote from a published text or a graphic chart or map in his envisioned publication then he has a duty to determine if that material is in fact protected by a valid copyright.
A publisher must obtain the copyright owner’s permission to reproduce copyright protected material or he runs the risk of later becoming the defendant in a copyright infringement action.
Determining the existence and validity of a copyright involves taking the time to do the research.
A copyrighted text, graphic or image can lose its copyright protection in several ways.
Copyright protection can be lost when the work enters the public domain, when the copyright has been forfeited or when it is lost due to the copyright owner allowing his copyright to simply expire.
• Public Domain
Material that has entered the public domain is not protected under copyright law.
The public is free to use materials in the public domain for whatever purpose they choose. Works created by a U.S. government employee or officer are automatically in the public domain.
For example the Social Security Handbook produced by the Social Security Administration is a work in the public domain. The laws and regulations of the United States as well as federal judicial opinions are squarely in the public domain for reasons of promoting democracy.
• Forfeited Copyright
Sometimes an author fails to follow copyright registration formalities which results in a copyright forfeiture. For example when an author fails to take the steps needed to renew his copyright that work can fall into the public domain.
• Expired Copyright
A copyright will expire after a certain number of years. Generally any copyright created seventy five years ago or longer would be reasonably suspect of having entering the public domain due to an expired copyright.
A derivative work is a work based on a pre-existing work.
The author of the derivative work would have transformed or modified the original work in some manner.
A derivative work can be a translation, a musical arrangement, a fictionalization of some event, or a condensation of a work. If the original work has entered the public domain then the derivative author may freely claim copyrights in the work he had produced based on that work.
However, if the original work has a valid copyright currently in force then the creator of the derivative work must obtain the permission, or license, of the copyright owner of the original work.
Certain Material Not Copyrightable
Copyright protection is never extended to ideas, words or slogans, methods, systems, blank forms, and similar materials such as familiar symbols and generally to typographic letters and ornaments.
This element is an important one for self publishers because understanding what is not copyrightable can instantly isolate elements of publication that pose no genuine copyright issues.
Copyrights & Work-for-Hire
There is a difference between creating a copyright protected work and completing a work-for-hire assignment.
A self publisher needs to understand and know that difference. A work-for-hire is created in two ways.
One method is where an employee creates a work for an employer within the scope of his employment.
The second method is where a work is specifically ordered or commissioned. In both methods there should be a contract or a writing documenting the terms of the agreement.
The copyright arising from a work-for-hire creation remains in the employer or the person that commissioned the work.
Self publishers need not fear hiring a book designer to layout their ebook or any similar highly skill graphic or editorial assistance. The work that person contributes to the publishing project need not be associated copyright issues if the freelancer or employee has agreed to sign a work-for-hire contract.
Freelancers and graphic artists assisting in the publishing process are not entitled to any portion of the self-publisher’s future publishing profits under a claim to featuring infringing materials where an appropriate work-for-hire agreement has been signed.
Publication, Investment and Marketing Know-How
Large publishing houses to small independent publishers all hold a similar objective in taking on the reproduction and marketing a particular creative work.
They all in some measure convinced that they can generate a profit through their proposed publication investment.
The author of a work may have held the intention to create art or to convey a uniquely important idea or a political voice but a traditional publisher focuses only on the odds of securing his initial financial investment and over time bringing in a handsome return on the publishing project.
Traditional publishers usually maintain highly skilled staff that can research a book’s general marketability, isolate elements of the public that could be reached by targeted marketing campaigns and generate sales from those reasonably expected to consume the finished publication product.
An author publisher must be able to assume all the roles in the publishing process.
He must be able to dream up clever marketing campaigns, identity potential product consumers, compare the price quotes for reproduction costs from printers, arrange for online ebook access and sales venues, have websites designed for effective product marketing and attend all scheduled personal appearances on radio, bookstore and video marketing venues.
Traditional publishers have experience in marketing, financing, paper printing and online reproduction techniques as well as distribution and sales.
Without similar experience a self publishing author might be forced to learn ways of the publishing world the hard way in the school of scams and hard knocks.
Winning the game of self publication means successfully avoiding being left with a warehouse full of books that can’t be sold and can’t endlessly remain in cold storage.
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About the Author: Christine Varad is the principal writer for Varacolors. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in copyright law, visual and graphic artists and general Intellectual Property law.