12 July 2003

While you're chewing on the previous entry—if you're chewing on the previous entry—I need to clarify and partly correct something that Neil Gaiman said in his blog this morning:

[A] writer whose article had been reprinted without her permission or any payment wasn't entitled to any restitution under copyright because copyrighting a magazine or anthology essentially only copyrights those articles in that sequence, it doesn't copyright that specific article, feature or story. That you should have filed a separate copyright notice on. And if you don't have a copyright notice filed, you may have moral copyright on your side, but you can't sue for damages, you can't make someone stop.…

[….] So unless Stephen King and Michael Crichton and Elmore Leonard and I have filed separate copyright notices on our individual stories (we might have done) they are now effectively in the public domain.

(Thanks for the note, Neil; those of us here in flyover country need to stick together!)

I will now prove that I am a lawyer by quibbling. There is a difference between failing to properly register the copyright, which is the "Morris problem," and losing the copyright. My explanation yesterday probably was not clear enough. Failing to properly register the copyright only bars one from filing suit (at least until registration is made properly and the registration certificate is in hand). It does not result in loss of the copyright; it does not drop the work into the public domain. As noted, it is still possible to register the copyright late; that just limits the available remedies, but does not make a suit impossible.

Part of the cause of this common mistake about copyright is that, until the 1976 Act came into effect on 01 January 1978, registration was required to assert a copyright, even out of court, and failure to register could drop a work into the public domain. And prior to 31 March 1989, failure to have the work properly marked ("© 1979 Arthur Author. All rights reserved.") could do the same. The point of Morris and its unfortunately growing progeny is that a single work, because it may be simultaneously part of multiple theories of infringement, must have a registration certificate covering the individual theory that one wishes to assert. For authors, this will most often involve the intersection between a periodical publisher's compilation copyright—protection for the selection, arrangement, and presentation of the periodical issue as a whole—and a freelance author's copyright in the specific work at issue. That is, in fact, exactly what was at issue in Morris.

One "copyrights" a work by setting it into a permanent form. This costs nothing. (And this should, as a rule, not be proclaimed on a work one is submitting for publication. If the publisher is honest, he or she already knows it; if not, he or she won't be deterred by a copyright notice.) Registration is a second step, one required to get into court. At $30 a pop, individual registration of magazine articles and short fiction will not be affordable. Fortunately, the Copyright Office has allowed for this circumstance with its group registration procedure, described in Form Letter 104, Contribution to Collective Works (HTML, 3k), Circular 1, Copyright Basics (PDF, 65k), and Forms TX (with instructions) (PDF, 141kb) and GR/CP (PDF, 46kb) (the two forms must be used together). Specific advice on filling these forms out is beyond the proper scope of a blawg; I highly recommend Stephen Fishman's excellent Copyright Handbook from NOLO Press (see also my no-punches-pulled evaluation of books for writers that discuss copyright—on the whole, a pretty sorry lot).