Copyright is the most important intellectual property right for authors. It allows you to control how your work is used and take legal action against anyone who copies, adapts, distributes, or performs your work without your consent. Copyright also allows you to monetise your work, for example, through selling or licensing your rights to a producer or publisher.
In this guide, our copyright solicitors discuss the legal principles surrounding copyright protection for authors. We explain who owns copyright, the steps you should take to protect your work, and how long copyright protection lasts. We also discuss how you can commercially exploit your copyright, what you can do if someone infringes your rights, and consider any other intellectual property rights that may be of value to you as an author.
Contents:
- How do I protect my work before it is published?
- Do I own the copyright in a book I wrote?
- Who owns the copyright in a co-authored book?
- Who owns the copyright in a book inspired by someone else’s work?
- Can I license or sell the rights to my book?
- How long does copyright protection last in the UK?
- What are orphan works and how do they apply to authors?
- What other forms of intellectual property protection are available to authors?
- What should I do if I suspect someone is infringing my work?
- Summary
How do I protect my work before it is published?
The risks faced by authors seeking to protect their work do not arise on publication; some present themselves long before a book reaches the reader. Below, we provide some examples of the challenges faced by authors wishing to protect their work before publication and the steps you can take to mitigate those risks.
Protecting your work against copying by third parties
You will usually need to submit your work to third parties, such as agents and publishers, before publication. Allowing third parties access to your work risks them sharing it with others without your permission or copying your work.
Sometimes, a contract known as a ‘non-disclosure agreement’ or ‘NDA’ can be a useful tool in compelling third parties to keep the details of a work they see confidential. When someone signs an NDA, they agree to be legally bound to keep your work confidential.
In reality, though, the chances of a publisher agreeing to sign an NDA before reviewing your submission are slim. There simply isn’t the incentive for them to expose themselves to a breach of contract claim just so they can read your material, particularly if you are a new author.
This does not mean that you need simply rely on the goodwill of the third parties. Even when the person reviewing your work does not sign an NDA, they may be subject to a legal duty of confidentiality. If they are, and if they breach that duty, you could bring legal proceedings against them, seeking an injunction preventing them from making any further use of your work, and damages for any financial losses their actions caused you.
Whether or not the third party has a duty of confidentiality depends on the situation. Generally speaking, the duty arises when somebody receives information in circumstances where it is reasonable to expect them to keep that information confidential. There are several proactive steps you can take as an author to support an assertion that the third party was subject to a duty of confidentiality. They include:
- Labelling every page of your submission ‘confidential’. You might even use a confidential watermark to stress the point.
- Marking your work with the © symbol.
- Including a statement in your cover letter or email to the effect that the work is submitted in strict confidence.
- Limiting the number of people you show the work to.
Any issues ahead of publication, such as plot leaks, can have a severe impact on a book’s eventual success. While teasers, which hint at the plot, can increase sales, outright spoilers that give away a huge twist can put potential readers off.
Protecting your name against impersonators
Unfortunately, unscrupulous individuals are always waiting to take advantage of someone else’s success for their own gain. For example, most successful authors have websites dedicated to their work, listing their published works, new releases, and the like. Authors are no less susceptible to so-called ‘cyber-squatters’ than anyone else, and unless you get in there first, someone else might purchase the domain based on your name before you do.
In addition to securing domains based on your name, you might consider securing them for specific works. While you’re unlikely to need domains for each book you write, you might consider securing them for a particularly successful series. For example, Warner Bros owns a number of websites based on the Harry Potter books, including harrypotter.com and harrypotter.co.uk.
Falling victim to cyber squatters can have severe consequences, including the following:
- Being held to ransom by the cyber-squatters demanding an exorbitant price for the return of your domain.
- Severe reputational harm, particularly if the website directs users to illicit content or malware.
- Loss of trust among consumers if the website sells low-quality products that purchasers believe are connected in some way with you.
- Difficulties when seeking to monetise your name or brand, for example, by licensing the rights to film producers.
While you’d likely be able to secure the return of the domain, doing so would take time and money. Prevention is better than cure. Our copyright solicitors will devise a brand protection strategy that will protect your name from impersonators.
Do I own the copyright in a book I wrote?
Provided the book is your own intellectual creation and not copied from elsewhere, it will be protected by copyright. As the author, you will own that copyright.
Copyright in the UK arises automatically, meaning you don’t need to register your work for it to be protected. It is important to note that there are several proactive steps you can take during the creation process to strengthen your rights and make any legal proceedings you need to bring easier.
They include the following:
- Retaining all documentation relating to the creation of your book, such as early drafts and ideas. You can use this documentation as evidence of ownership.
- Ensuring all documentation is dated and marked with the © symbol. In the event that someone copies your work, you can use this material as evidence of when you created the work. If you create your work digitally, it should be automatically timestamped.
- Keeping details of all third parties that have seen your work before publication. Since copyright only protects your work against copying, you can use this evidence to prove that a third party who copied your work before it was published had access to it.
- Using watermarks on any drafts sent to third parties, such as publishers, to discourage them from sharing the work without your permission.
- Registering with a copyright licensing agency, such as the Authors Licensing and Collecting Society (ALCS), which licences the use of your work to third parties like businesses and educational establishments.
Who owns the copyright in a co-authored book?
An author might choose to co-author a book for various reasons. For example, they may feel that another writer will bring a fresh perspective to the project and be keen to gain their creative input. Sometimes, the demand for an author’s work may be so great that they turn to carefully selected co-authors to help them produce enough novels to cope with it.
When you co-author a book with others, the work will usually be what the law calls a ‘work of joint ownership’, and each author will ordinarily own the copyright in equal shares. This general presumption can be rebutted if one author can prove that their contribution was greater than that of the others. To avoid situations like these, which have given rise to numerous reported court cases, you should consider putting an agreement in place that clearly clarifies each author’s respective share in the work based on their contribution. Our copyright solicitors can help you produce a watertight joint ownership agreement that reflects your intentions and significantly reduces the likelihood of costly disputes over ownership in future.
Who owns the copyright in a book inspired by someone else’s work?
Copying someone else’s work without permission usually amounts to copyright infringement. The extent to which you can use a third party’s book as inspiration for your own is a grey area.
This question is particularly pertinent in the realm of so-called ‘fan fiction’. As its name suggests, fan fiction is work created by fans of an existing work. Fans might write stories based on characters from the existing works, answer questions left open by the original books, or explore subplots not fully developed by the original author. Since the fans create these stories themselves, albeit on the back of someone else’s work, what is the copyright position?
Previous case law suggests that provided the new work is not copied from the original and represents the fruits of the new author’s own skill and labour, it can benefit from copyright protection in its own right. In the case of fan fiction, the fan would own that copyright as the author of the new story.
Crucially, though, the courts have stated that a work protected by copyright can still infringe the copyright subsisting in the original work on which it is based. Copyright in books generally lasts for 70 years after the author’s death. If copyright subsists in the original work on which you intend to base your book, you must tread very carefully. Using several characters’ names together with, for instance, backstories and place names may amount to infringement. The courts have confirmed that copyright can exist in a single literary character, such as ‘Del Boy’ from Only Fools and Horses, who uses unique catchphrases and expressions and has a recognisable personality. The legal position and the level of risk involved depend entirely on how you intend to use the original work, so taking advice from copyright solicitors is essential.
Remember, too, that even if your proposed project does not constitute copyright infringement, the author of the original work may own other intellectual property rights, such as registered trade marks, that they can enforce against you. For example, ‘Harry Potter’ is a registered trade mark for a number of goods, including books, so any use of the name in fan fiction may amount to trade mark infringement.
Can I license or sell the rights to my book?
Yes, as the copyright owner, you can deal with your work in any way you choose, including granting third parties a licence to use it or selling the rights outright. Nobody else can deal with your work, including adapting it, without your permission.
Say, for example, a producer wishes to adapt your book for the screen. They would need to approach you for permission to use your work, and you may decide to enter into an agreement with them, granting your permission in return for payment.
A common type of agreement in these situations is an ‘Option Agreement’, whereby you grant a producer the exclusive option to develop your book into a film or TV series in return for a fee. Option Agreements last for a defined period and are sometimes renewable for an additional fee. The producer will use the period of the Option Agreement to source funding for their project from a network or studio. If everything goes according to plan, the producer will then acquire the relevant rights for the fee you negotiated with them before entering into the Option Agreement.
How long does copyright protection last in the UK?
Copyright in books lasts until 70 years after the author’s death. If you use a pseudonym or publish your work anonymously, copyright will last for 70 years after the date of publication. Once copyright expires, your work will enter the public domain, meaning anyone can use it without your permission or the permission of those to whom you passed your rights on your death.
It’s important to note that the copyright position relating to audiobooks is slightly different from that to written ones. While the author of the underlying book made into an audiobook will own the literary copyright, the audiobook itself will benefit from copyright protection as a sound recording. The producer of the audiobook usually owns the copyright in the sound recording, which lasts for 50 years from the year in which it was made.
What are orphan works and how do they apply to authors?
‘Orphan works’ are works whose copyright owner cannot be identified or can be identified but not traced following a ‘diligent search’.
Any type of work can be deemed an ‘orphan work’, including books. Anyone can apply to the UK Intellectual Property Office (IPO) for a licence to use an orphan work for either commercial or non-commercial purposes. If the application fulfils the IPO’s criteria relating to orphan works licensing, the IPO will grant a licence for a maximum term of seven years in return for a fee.
The IPO keeps a register of all works deemed to be ‘orphan works’ in the UK. If you discover your work is listed on the register, you can apply to the IPO for it to be removed. You’ll need to provide evidence of your copyright ownership with your application. If the IPO is satisfied that you are the rights owner, it will amend the register.
There are several steps you can take to avoid your work becoming classed as an ‘orphan work’. For example, while registration is not a prerequisite for copyright protection, lodging your work with a copyright agency and keeping your contact details updated should ensure you appear in any ‘diligent search’ undertaken to ascertain the owner of the copyright in your book.
What other forms of intellectual property protection are available to authors?
While copyright is the most important intellectual property right for authors, it’s not the only form of protection from which you may benefit. Other rights can also assist in protecting your work, including the following:
Moral rights
Moral rights protect your non-economic interests, including the right to be recognised as the author of the work and object to its derogatory treatment. They arise automatically and cannot be sold or licenced, although you can agree to waive the rights if you wish.
Trade marks
Trade marks act as a badge of origin, informing the consumer where the goods originate from. You cannot protect your writing with a trade mark, but you may be able to protect key aspects of your work, such as a character name or logo. For example, as we explained above. ‘Harry Potter’ is a registered trade mark for a broad range of goods, including books and merchandise.
Trade marks are registered rights, meaning you must submit an application to the IPO to obtain protection. You should register a trade mark before it becomes well-known since once a mark becomes widely used, it arguably no longer acts as a badge of origin for its owner and so may run into objections during the application process. For example, Harry Potter has been a registered trade mark since 1998, just one year after the first book was published.
Designs
Design rights protect the visual appearance of a work. While it could not protect your story itself, it may be useful in protecting aspects of your book, such as its cover and any visual depictions of the characters.
What should I do if I suspect someone is infringing my work?
If someone copies your work or parts of it, they may be liable for copyright infringement. There are no hard and fast rules governing how much of a work can be used before it infringes the copyright in the original; the law merely states that it must be a ‘substantial part’. Clearly, the more of your work the third party uses, the more likely they are to have infringed your copyright.
As the copyright owner, you have the exclusive right to distribute your work. That right is infringed if a third party distributes copies of your work without permission. In an online environment, electronic files containing your work can be created and shared far and wide in a short space of time, severely damaging your sales. While physical book piracy is less of an issue, problems can sometimes arise when copies intended for distribution abroad end up in the UK market.
If someone appears to have copied your work or distributed copies without your permission or you have any other infringement concerns and you’re unsure of your options, speak to us. Our copyright solicitors will consider the other party’s actions and advise on your legal position.
If our copyright solicitors advise your case has merit, they will take swift, decisive action to halt the infringement and stem any ongoing damage to your reputation and commercial interests. They will likely begin by sending a letter of claim to the other side, explaining that their activities infringe your copyright and that you will take legal action if they don’t comply with the demands detailed in the letter. Those demands will mirror the relief you would be entitled to were you to make a successful copyright infringement claim, which includes an immediate cessation of the infringing activity, damages, and delivery up or destruction of any infringing material.
Often, receiving a formal letter of claim from well-known copyright solicitors like ours is enough to persuade the other party to cease their infringements and negotiate a settlement to avoid court proceedings.
If the other side denies your allegations, our copyright solicitors will likely suggest you explore alternative dispute resolution methods like mediation before resorting to expensive litigation. These methods are quicker and cheaper than court proceedings and can produce excellent outcomes in the right circumstances.
While litigation should always be a last resort, it’s unfortunately sometimes unavoidable. If the other side refuses to cease their infringing activities, our copyright solicitors may advise that you issue court proceedings to protect your reputation and financial interests. Settlement discussions will continue behind the scenes, and there’s a good chance that the matter will settle before trial. If it doesn’t, our copyright lawyers will prepare a robust, watertight case to be presented to the Judge.
Summary
Copyright is of vital importance to an author. By granting you the exclusive right to use your work, copyright protects your creative efforts and gives you peace of mind that you can take legal action to prevent anyone from using your work without permission.
Copyright infringement can have severe consequences for authors. It affects sales and royalties, diminishes the value of your work, and harms your reputation among readers. Taking proactive steps to minimise the risks of infringement is essential, and any instances of infringement that do occur should be addressed swiftly and decisively.
Copyright is a complex area of law, but by working with experienced copyright solicitors like ours, you can ensure you enjoy the widest possible protection and put a stop to any infringements before they can cause you serious harm.
