Copying or Inspiration – Who Decides? Five Copyright Essentials Every Writer Should Know.

"I like the writing in that paper. I only wish more of it had been yours." (Cartoon by Matthew Henry Hall)

Copying. It’s a nasty word that hasn’t changed in meaning since the 1st century, when the Roman poet Marcus Valerius Martialis used the Latin word plagiarius (literally ‘kidnapper’) to complain that another poet had “kidnapped his verses”. When I was at school, the repercussions of copying were severe, and not just among teachers… Mine was the type of school where classmates spent the last day of term comparing A-grades and, in that environment, accusations of copying could ruin friendships as well as reputations. Later, when I was an intellectual property lawyer (shhh, don’t tell anyone I was once a lawyer – it’s a part of my life I try to forget! Brrr, did someone open a door or did chills just ripple down my spine at the thought?), potential copyright infringements could occupy hours of my chargeable time and generate millions of dollars for my firm.

"I'm going to write a vampire romance too!"

However, now that I’m a fiction writer, helping a bunch of highly talented writers towards publication through my writers’ group, I’ve had to re-evaluate my perception of copying… For writers, where do you really draw the line? The direct copying of sentences, paragraphs and pages is clearly plagiarism – evil, evil, evil. But what about the copying of ideas?

As writers, we each have our own preferred ways of expressing ourselves in the written form, so – unless you’re happy to be a fake – there’s little point in copying someone else’s style or phraseology. And we also each have our own interpretations of morality/theology/humanity, so why would we copy those belonging to another author? Surely the only thing a writer might be tempted to copy is a clever premise that weaves all of that into a story. But the law does not protect premises, ideas, themes and concepts (see below), which is good since otherwise there might only be seven stories in the world… literally. But this also means that, whilst some writers seek inspiration for their writing in life experiences and research, there’s nothing to stop others from simply copying that writers’ ideas. It can be both annoying (to the point of combustion!) and complimentary for the copied author, then again readers might argue you can’t publish too much of a good thing…

"Hmm, that's a rather good idea..." (Image credit: BIO150Y)

But how far would you personally go for a good idea? Would you use your favourite story as a template for writing a novel? Perhaps your favourite story is your favourite because you always wanted to write something like that… it’s just the other author got there first?

Or are you the unique one who feels constantly copied by others? The minute you create or do something inventive, your competitors decide to do the same (or something very similar)? Maybe you’d like to know where you stand in copyright law, because the ideas that other people are stealing from you diminish your competitive edge in the market?

No matter how far you think you’d go – or wouldn’t go – for a good idea, refresh your memory with my five copyright essentials, then decide. What you read may change your mind.

The following applies to actions taking place in Australia, even if the material was created or first published in another country.

1. What is copyright?

What's that? I have exclusive rights?

The moment you write any original literary work, you become the sole owner of the copyright in that work (unless you are a freelancer, employee or joint author). As copyright owner, you have the exclusive right to reproduce your work, make it public for the first time, communicate it to the public, recite or perform it in public, or make any adaptation of it (including dramatised or picturised versions and translations). Your copyright will last forever if the work in question is never published, but once published it will last for the entirety of your life, plus 70 years (prior to 1 January 2005, this was 50 years).

IMPLICATIONS: For as long as you own the copyright in a work, no one can use that work without your permission. If they do, they’ll infringe your exclusive rights (the main exceptions to this are when someone wants to use the work for private research or study, for criticism or review). It is for this reason that publishing contracts include a copyright licence granting your publisher permission to use your work in a certain way for a certain period of time. In exchange for your permission, the publisher should pay you royalties (yippee!). You can also assign (ie. sell) your copyright. It can be hot property!

TIP: One of the main issues in copyright cases is proving the date when a work was created/published. So make sure you keep evidence of this – backup your electronic files and consider mailing work to yourself occasionally (but don’t open it when it arrives!).

2. What is NOT copyright?

Ideas are for everyone.

‘Literary works’ do NOT include ideas, concepts or themes, names or titles, headlines, slogans or invented words. Some of these may be covered by other areas of law (such as trade mark law), but not copyright.

IMPLICATIONS: If you have a website or blog that focuses on a remarkably unique aspect of the publishing industry, you will own the copyright for each component that comprises that website or blog, but you cannot protect the remarkably unique concept that first inspired you. Similarly, if you choose to describe your unpublished novel on your website or blog, the premise behind that novel is not protected. Anyone could copy the idea, the same way you could copy anyone else’s published ideas. Of course doing a better job with that idea is another question entirely.

TIP: When sharing your ideas, be certain that the person to whom you’re speaking won’t copy those ideas. There’s nothing you can legally do if they decide to ‘be inspired’ by you and, if your interests are that similar, you could lose a potential friend. If you are writing for TV or movies, there are specific things you need to know about protecting your copyright. Check with the Australian Copyright Council for more details.

Don't share your ideas!

3. What do you have to do?

You do not have to apply for copyright in Australia, it simply exists from the moment you create and record your literary work. In other countries, writers have to apply for copyright through a system of registration (forms and fees, ugh!), but in Australia it is free and automatic. You don’t even need to put a copyright notice on anything (ie. © Zena Shapter 2011), although this can sometimes be advisable as it can remind people that a work is protected and by whom.

IMPLICATIONS: There are copyright collection societies you could join, but all you really need to do is be vigilant and act promptly should you discover anyone infringing your copyright (hesitation or delay can diminish your rights and acting promptly promotes an aggressive reputation, which in itself can help protect your copyright).

TIP: Make it difficult for others to copy your online content. Although you’re legally protected, infringement proceedings are expensive. Encrypting your content won’t stop a determined infringer but it will certainly deter some people. Lock it down.

4. What do they have to do?

Don't think it'll never happen.

If someone wants to accuse you of copyright infringement, they must prove that you used (or authorised the use of) a substantial part of their literary work without permission. Deciding what is a ‘substantial part’ is a matter of fact and degree. It can be a large part, or a small part that’s an important, essential or distinctive part of the whole.

IMPLICATIONS: You can write a story based on the premise of another writer’s story, but you mustn’t copy any of the ways in which that author expressed their premise (you also shouldn’t really copy the way another author markets their stories, as this could breach Australian Consumer Law).

TIP: If you’re ever accused of copyright infringement, your early drafts, source materials and research could be vital evidence. Keep everything you can! If you’ve never even heard of the author in question, they could be making a ‘groundless threat’ and the court can force them to pay both compensation and your legal costs. They also risk perjury charges!

5. Moral rights

If you create a literary work, you have the ‘moral right’ to be attributed (wherever reasonably possible) as the creator of that work. This right will be infringed should you not be (correctly) attributed as creator, or if your work is treated in a manner that is detrimental to your reputation. This right exists separately to your copyright, although it also arises automatically and lasts for the same period of time as copyright.

IMPLICATIONS: You cannot transfer your moral rights to someone else, but you can waive them or agree not to enforce them. This is usually dealt with separately from copyright in publishing and employment contracts, so check your agreements.

TIP: Most authors are particularly concerned about their moral rights as they don’t want others tampering with their work, but in some countries (eg. the UK and New Zealand) you have to assert your moral rights with this wording “The author asserts his/her moral rights” in order to be protected.

If they can do it better, well, good for them!

So, now that you know all about copyright law, how far would you go for a good idea? Are you happy to be inspired by other people’s literary creations, confident that you’ll know the line at which to stop, or do you prefer to avoid it altogether? Would you be upset if another author copied your ideas, or is it just a compliment? Copying or inspiration – you decide…