Note: (Updated August 2021)
As an intellectual property lawyer who works with comic book
creators and who hosts panels at comic book conventions, I answer a lot of
questions about copyright law. As of August 2021, here are five of the most frequently
asked questions.
1) If I place a copy of my work in an envelope and mail it
to myself, does this give me copyright protection?
This is what’s known as a poor man’s copyright. It’s not a
real thing. Once you have created your work, you own the copyright. Registering
your work with the Copyright Office solidifies your claim of ownership and
grants you some additional rights regarding enforcement.
2) How do I prevent someone from stealing my idea?
The answer to this question varies. The simplest way is to
not tell anyone about your fantastic idea. The second best solution is to have
everyone you tell about your idea sign a non-disclosure agreement, which can be
burdensome and impractical. Typically, the best approach is to write down as
much of your idea as possible in a detailed synopsis, outline, etc. This shows
you have taken steps to actually turn your idea into a copyrightable work. If
you do need to discuss your idea with someone else, either give them the
synopsis you’ve prepared or, if you’re having a conversation and there is not
an opportunity to get a signed agreement, don’t be as thorough in your
descriptions. Additionally, it’s always a good idea to document who knows about
your project.
3) Other people are making and selling fan art pieces, so it’s
legal, right?
No. Just because others are violating someone’s copyright
rights and not being stopped does not give you a free license to do the same. A
copyright owner could come along at any time and enforce its rights through
cease-and-desist letters, DMCA takedown notices, or lawsuits. If you are making
and selling art using the intellectual property of others without their
permission, you are likely infringing on their rights. Be careful. For more, check out my previous posts on fan art: Is Fan Art Legal? and Fan Art and Fair Use - An Update.
4) If my work is 10/20/30% different than the original work
I’ll be fine, right?
There is no set percentage that would make your work
non-infringing. One of the factors courts look at is whether the new work is
“transformative.” The Copyright Office describes transformative works as “those that add something new, with a
further purpose or different character, and do not substitute for the original
use of the work.”[1]
Obviously, you will be better off with more differences between your work and
the original work.
5) What about fair use?
As I’ve said numerous times, fair use is a defense to
copyright infringement. It will be raised in court after you’ve been sued, and
the court will decide whether your work is a fair use. If someone thinks you’ve
ripped off their work, claiming your work is a fair use probably won’t stop
them from suing you. I’ve talked about fair use more in-depth here.
Bonus Questions:
6) Do I need to register a copyright?
Technically, a work is protected by copyright as soon as it is created. However, you must register your copyrighted work in order to enforce your rights, and if you register it before an infringement occurs, you can be eligible for statutory damages.
7) How much does it cost to register a copyright?
The copyright office charges different fees depending on what is being registered. The current fee for most works created by more than one individual is $65.
8) Can I copyright my title?
No, you cannot copyright a title to a single creative work. You may be able to obtain a trademark, but only if the creative work is part of a series or a meets other certain requirements. Comic book series are typically entitled to trademark protection.
For a bit more-detailed explanation of copyright law, check
out my post here.
[1] More
information on fair use, Copyright.gov, https://www.copyright.gov/fair-use/more-info.html
(last visisted August 30, 2021).
