Copyright Essentials: How to Protect Your Work as an Author - BM431

Susan Friedmann [00:00:30]:
Welcome to Book Marketing Mentors, the weekly podcast where you learn proven strategies, tools, ideas, and tips from the masters. Every week, I introduce you to a marketing master who will share their expertise to help you market and sell more books.

Today, my special guest is Dave Faux, a multi-talented attorney, entrepreneur, scholar, and former music journalist. Licensed across New York, New Jersey, and Pennsylvania, Dave brings a unique insider's perspective to intellectual property, entertainment, and business law. His impressive roster of clients spans publishing, fashion, sports, and the fine arts, and a whole lot more. With advanced degrees, international experience as a Fulbright Fellow, and years navigating creative industries, Dave offers unparalleled legal insights for protecting your artistic passions and business ventures. Dave, what an absolute pleasure it is to welcome you to the show, and thank you for being this week's guest expert and mentor.

David Faux [00:01:41]:
Thanks for having me. And with an introduction like that, it makes my life sound so good.

Susan Friedmann [00:01:45]:
It does.

David Faux [00:01:46]:
Yeah. It doesn't feel that way sometimes, but I appreciate.

Susan Friedmann [00:01:50]:
I know the feeling. You were referred to me by a dear colleague, and a copyright is one of those terms that authors talk about in very general terms, but are not really sure what it actually means. So like you said, let's dig into that and literally ask that question. What does it actually mean? What does copyright mean?

David Faux [00:02:17]:
Yeah. I mean, from a legal perspective, there are 5 rights that are bundled together as the copyrights. When you've taken a work of art, it's usually art, but it could be a textbook or something like that. But when you've taken a work and you own it, you have 5 rights that you can exploit that work with. And that's the right to reproduce or distribute it. And when those are combined, we call that publishing. There's the right to a live performance of the work, like a play or a musical. There's the right to live display, like a painting.

David Faux [00:02:47]:
And there's the right to make derivative works that could be anything, like, play to a musical or a book to a movie.

Susan Friedmann [00:02:55]:
You gave that great example earlier when you and I were chit chatting about that. That was interesting.

David Faux [00:03:01]:
It's an adaptation of a poem, of TS Eliot's poem.

Susan Friedmann [00:03:05]:
Yeah. Brilliant. Yeah. That was a great example. And we have a the copyright page that is on the back of that title page in a book. Mhmm. Now we just put that in automatically, but what legal rights do we actually have with that copyright page?

David Faux [00:03:27]:
Well, the copyright page is really just to put people on explicit public notice. Whether you put that page in or not doesn't affect your rights. It used to back in 190 9, the 19 09 act. You used to have to put the c with the circle and the year. And if you didn't do that, you might be jeopardizing your copyright. But with the act of 1976, it's been enforced since January 1, 1978, You no longer have to put that notice in. I mean, the real division of the copyright in the US is that you have a copyright as soon as you have an original expression fixed in tangible form. That's the legal definition.

David Faux [00:04:11]:
As soon as you fix it in tangible form, whether it be on a word processor, on a canvas, on a sound recording, you have what's called copyright. And it has to be an original expression, an original authored expression. The reason the word expression is in there is because it can't be facts or ideas. So you can't own, for example, the notion that April can be a rainy and difficult month, but you can own the phrase April is the cruelest month if you put it in a longer context. You can't own the fact that JFK was assassinated on November 21st, but you can own the specific way that you express that notion. When I'm describing the idea expression dichotomy, which is important, it's important to literary authors, especially in the context of a writing group. If someone suggests that one of your characters in your short story should be British and you take that suggestion, that doesn't make that other person a co author. That's just an idea.

David Faux [00:05:13]:
You're the person as the author who went in and changed apartment to flat and maybe changed some of the way that their accents are read in the book or the way that they dressed. That's the expression. And by the other token, if you share your idea for a short story, that idea might be up for grabs, at least in the broad strokes. If I say, everyone write a short story about a a punk rock band, then everyone goes off and writes their short story, and it'd be different for every person. That's each expression is protected, but the idea itself isn't. So be careful about sharing your ideas too easily.

Susan Friedmann [00:05:50]:
Which is really interesting, that one. But in terms of the book itself, can you actually physically go and register the copyright? Because when we put that copyright page, there isn't actually a formal registration with that.

David Faux [00:06:06]:
That's right.

Susan Friedmann [00:06:07]:
Does there need to be?

David Faux [00:06:09]:
Yeah. Like I said, when you have an author expression fixed in tangible form, you have what's called a copyright. Rights are not very valuable if you can't enforce them. And with copyright, you have to register the copyright with the United States copyright office in order to be able to enforce the copyright. I wanna emphasize, you have to register it with the copyright office. If you mail it to yourself, that's pretty much useless. If you register it with the WGA that has a service, the Writers Guild of America out in the West Coast, predominantly out in the West Coast, that doesn't do anything for you. If you sue somebody for infringement, the first thing a court's gonna ask is what's the registration number? And if you say, I haven't registered it with the copyright office yet, they'll say, this is dismissed without prejudice.

David Faux [00:06:55]:
Come back later when you have a registration number. You do need to register that. And there are advantages to registration other than getting the keys to the courthouse. If you register a work prior to infringement, and I suggest that everybody register before publication, then you can assert statutory damages instead of actual damages, and you can assert actual damages, and you can assert a case for attorney's fees. Statutory damages I don't wanna bore anyone to death, but when you're trying to prove a case for infringement, if you have to prove actual damages, you have to figure out what monetary amount have you been damaged by this person infringing your work. And it might not be enough to justify the cost of a legal suit. But if you have statutory damages, the court can make the decision from 500 to a $150,000 per infringement depending on how willful the infringement was and how damaging the court deems it to be on a more holistic sense. And attorney's fees, everybody wants attorney's fees.

David Faux [00:07:58]:
And also if you register the work before the 5 year anniversary of publication, you have a presumption of a valid copyright. That means if you go to court, you don't have to spend money on attorneys trying to prove that you have a valid copyright. That's presumed. The other side would have to spend their money on their attorneys to prove that you didn't have a a valid copyright. And for that reason, most parties, they allow that presumption to stand and and get on to the damages aspect.

Susan Friedmann [00:08:24]:
So what is the process? How long does it take? You said prior to publication, it suggested that do they apply for a copyright? And then you mentioned that, you know, within 5 years of publication, it's preferable to do it prior to publication. However, if you don't do it prior to publication, then within the first 5 years, it's okay to do that. Am I Well understanding that correctly?

David Faux [00:08:50]:
If you don't do it prior to publication, you can do it within 3 months of publication and still get statutory damages and attorney's fees, or you can do it before the infringement happens. And then you'll get the statutory damages and attorney's fees. If you wait until four and a half years after publication, the only statutory right you'll get is the presumption of a valid copyright. So the earlier, the better when you're registering a work. And how long does it take in terms of filling out the application for a novice? You know, it's not rocket science, but the government sites aren't necessarily easy to administer. That's So if you have an hour or 2 to go through it and make sure it's done right like, I would say you could probably do it in under an hour, but certainly under 2 hours to fill out the application and submit it. Once you've submitted an application and a deposit, meaning the best copy of the work you're trying to protect and the fee, those three items, the application, the deposit, and the fee. Once those have been acknowledged as accepted by the copyright office, that's the date that your protection would start, presuming that the registration eventually issued.

David Faux [00:10:00]:
And then it it can take 3 months for a straightforward application to be processed by the copyright office. But if they run into bumps in the road, it can take a year. Okay.

Susan Friedmann [00:10:12]:
But you could still, in the meantime, have printed the book with that copyright page, which seems to be just a given when the book goes to print.

David Faux [00:10:23]:
A 100%.

Susan Friedmann [00:10:24]:
Okay, that's good to know. Now what about the difference between a copyright and a trademark? Because I think there's a lot of confusion between the 2.

David Faux [00:10:37]:
Yeah. There is. A trademark is really just a source identifier. And when you're thinking about a trademark, you would think about Coca Cola or the Louis Vuitton branding. For copyright, you're talking about in my world, it's usually works of art, but it might also be, like I said, textbooks or computer programs, the coding if it's original coding, things like that. But the trademark really is supposed to be a source identifier. Probably the closest thing you see in an overlap in the literary world would be the title of books. A lot of people say, I wanna copyright my title.

David Faux [00:11:12]:
You usually can't copyright a title, like, almost never because it it's usually too short. It has to be a certain de minimis length, Latin being for it has to be a certain minimal length, before you can submit something to copyright. And then the next question is, well, can I trademark it? Well, you can't trademark a title. You can only trademark the title if it serves as the source for something like a series. So the magic bus books are trademarked. The magic bus goes to the zoo. The magic bus goes to the museum. You can get a trademark if you have a long series, and each of them has a trademark similar title that indicates the source of the book.

David Faux [00:11:53]:
It's part of that series. Otherwise, trademark doesn't really enter the picture with literary works. It's all copyright.

Susan Friedmann [00:12:01]:
And often, authors have, let's say, a method, a formula, something that is unique, their principle, their way of doing something, and trademarking that, the such and such model, the ABC model. Is that the right thing to do?

David Faux [00:12:19]:
Could you elaborate on that?

Susan Friedmann [00:12:22]:
Let's say I've got a bulk book mastery formula. Can I trademark that?

David Faux [00:12:31]:
No. That gets into the area if I understand your question correctly, that gets into the area of ideas. You wouldn't be able to copyright it. You wouldn't be able to trademark it if it's Susan's Bulk Mastery, and you've got the proper marketing around it. You can show you're using Susan's bulk mastery as a source indicator. You might be able to trademark that, but it would have to be all three words. You probably have to disclaim you know, I'm not gonna sue anyone for using Susan or bulk or mastery as separate words. Only when they use all these together in the way that I'm using them in the same channels of distribution and such could it be trademarked.

David Faux [00:13:11]:
But when someone has an idea or a formula of a way of doing things, usually, what they're thinking of is like a business method, and that would come under patent except the supreme court has pretty much killed off the idea of patenting business methods because it's too close to being ideas as well. You know, when you have an idea about how to do something, the best way to corner the market is to make a big splash in the market with your marketing and be first to market so that everyone associates this idea with you.

Susan Friedmann [00:13:41]:
And I mentioned to you earlier that my book Riches and Niches, How to Make It Big in a Small Market, I coined the term but somebody who specializes in a niche market or a niche market, as I like to say, is called a nichepreneur or a nichepreneur. I was able to trademark that name.

David Faux [00:14:02]:
Yeah.

Susan Friedmann [00:14:03]:
How does that fall into what you're saying? Is it the uniqueness of it? It's something I created?

David Faux [00:14:10]:
Partially, that played into it. The nichepreneur, it's and don't take this the wrong way, but it's a nonsense term. Right? It didn't exist beforehand. So so it's what we call fanciful or arbitrary. It's a fanciful term, which means that if you can get a mark for that, that'll be a very strong mark. And then the other criteria for the trademark aspect is that if you want a federal registration, you need to be making sales across state lines, and you need to be using it as a trademark. When you submitted your application, you had to show that you weren't just using the word nichepreneur in a sentence. You were using it as a word apart and separate from everything else.

David Faux [00:14:50]:
So everyone knew this word was the heading to indicate a specific source of information, the specific quality of information that only came from this source.

Susan Friedmann [00:15:00]:
Correct. Yeah. So what are some of the mistakes that you see authors make when it comes to copyright?

David Faux [00:15:08]:
One of the biggest mistakes is that they don't register in time. It's heartbreaking when I'm talking to somebody who says, my friend took my literary work and really just copied it. This might be a university professor who does this to a student or it might be a friend or it might be the writing group partner participant. I hear them. I hear what they say that they have this work, and they've seen the other person's work, which definitely came after, and it's definitely what we call substantially similar, if not identical. And then I say, well, this all sounds great. Have you registered the work yet? No. I haven't registered the work.

David Faux [00:15:47]:
Okay. Well, you have to register the work, and then you don't get attorney's fees or statutory damages. You're gonna have some expenses on the front end. You're gonna be responsible for your own attorney's fees. Before you start submitting anything to publishers, before you start sharing, you know, essentially finished drafts with people, you should probably send in a registration application just to make sure that you're covered.

Susan Friedmann [00:16:10]:
Now one of the things is that and I've had this happen, and I was totally unaware that somebody plagiarized other person's work and wanted to publish it under their own name, and years later this came to light, I would not know if something was plagiarized. What happens in that situation?

David Faux [00:16:30]:
It can get messy, but the general principle is that you have a 3 year statute of limitation, and that 3 year starts from when you knew or should have known. So, generally, it's when you knew that the infringement took place. You have 3 years to file suit unless you should have known if it had been some heavily advertised thing or the person told you explicitly that they copied your work or you had reason to see it that they can prove. It's like, I showed Susan 5 years ago that I was plagiarizing her. She didn't say anything, so I thought it was alright. Well, you shouldn't have waited 5 years. You should have told them not to do that immediately, and then you would have had 3 years to file suit. If you just find something randomly on the Internet, you can't necessarily be disqualified because it's been on the Internet for three and a half years.

David Faux [00:17:22]:
You can say the Internet's huge. You know, I'm living my life. I had no reason to know about this. And as soon as I came across it like a reasonable person would have, I started the process of enforcing my copyright.

Susan Friedmann [00:17:36]:
Now from the legal standpoint too, with regard to when you mention somebody's name in a book and that person is living. I always say to my authors, you've got to get written permission from this person that they can appear in this book and that they said what they said or however you've quoted them. Is that enough? Or should there be something over and above that?

David Faux [00:18:05]:
Well, if it's a private person, you might wanna get permission. Yeah. When you're using real people in your works, we divide them into private figures and public figures. Private figures, you know, there's some steps that I usually suggest to authors. And I always with the caveat that I'm not a creative person. I'm telling you from a legal perspective what would be a good defense, good position against anybody accusing you of any sort of defamation or right of publicity or anything like that. If you're writing about, like, a a biography, an autobiography, and you're including other people in the book, if you don't say anything nasty about them, it's probably gonna be fine. If you can get their approval and get them to sign a little paragraph that says I've read these parts and, you know, I release you from all claims, that that's great.

David Faux [00:18:53]:
But if you are saying something off color about them that could be controversial or provocative, then there's usually 3 steps you can take. If you can take all 3, that's great. But usually, you might have a disclaimer in the book saying any representation to, you know, some of the names have changed and you can't assume who this is. Any resemblance to a real person is purely coincidental. You can change immutable characteristics of the person. If you're writing about me, I'm bald as a cue ball. You might wanna make my character in your true nonfiction work have a full head of hair. No one will suspect it's me.

David Faux [00:19:32]:
Right? Or change a black woman to a white man or vice versa or change the sexuality. Whatever the hot button thing is, you know, you can change some of the other immutable characteristics so that it kinda throws people off of the trail of who it might actually be. And then the third thing, and this is more with famous people, is you can actually include a reference to the actual person in the document. So if you're writing about a local politician, John Doe, the local mayor, but you don't want people to associate it with John Doe, the local mayor, you can have that character say, you're trying to paint me like I'm John Doe, the local mayor. I'm not. Now you can kind of throw something in there. So it's like, well, like, nobody could assume that it was John Doe, the local mayor, because they separated him out from that character within the book itself. I don't know if that's helpful.

David Faux [00:20:23]:
Is that

Susan Friedmann [00:20:24]:
Oh, yeah. I mean, it is very helpful. We actually have a situation now with authors who are writing a book about weight loss, and they're using case studies. We talked about the fact that they need to change some aspect of it because otherwise, the person might definitely recognize themself in that case study, and they would be concerned about that. I think you described what they need to do, which is literally change some aspect from male to female or young to old or different relationship. Instead of a parent, it could be an aunt, an uncle, the next door neighbour, or something like that.

David Faux [00:21:04]:
Yeah. I think that's right.

Susan Friedmann [00:21:06]:
That's what we talked about because they were very concerned that somebody read that, that they would say, Oh, that's me.

David Faux [00:21:13]:
And do you think those passages would have been defamatory or more of a privacy issue?

Susan Friedmann [00:21:18]:
I think it might be a privacy issue Yeah. More than anything. Yeah.

David Faux [00:21:22]:
With privacy, privacy is state based law. So I don't do anything really with privacy issues because a lot of my authors don't live in the same state that I do. So it's like, look, you gotta look into the specific state law. I'm not licensed to practice in your state, so you gotta find somebody else. But, generally, with privacy, there's false light privacy comes up, which is sort of like a diluted form of defamation, and there's public disclosure of private facts. And you have to be sensitive to those according to the state law wherever you're living.

Susan Friedmann [00:21:56]:
Yeah. They're being super cautious about this because, Exactly. They don't want people to recognize, but it's still the symptoms that other people might be able to learn from. And so they're using the case studies. But again, as I say, being very cautious about how they use them. Yeah.

David Faux [00:22:16]:
Yeah. Well, some states don't have very strong privacy laws. You know? Certainly, New York doesn't. And from what you described, it's probably not defamatory, especially if it's truth. Right? Truth is an absolute defense to defamation. That said, people sue anyway. Defamation is when you make an untrue statement published to third parties that lowers the subject's reputation. And if it's a public figure, then it has to be done with actual malice as well.

Susan Friedmann [00:22:42]:
Which there would be none with regard to this at all. It would just be purely educational standpoint using that as a case study.

David Faux [00:22:50]:
Yes. And it probably wouldn't lower their reputation. It's a true statement. So it's more about privacy and whether a reasonable person would be sufficiently embarrassed enough to file an action.

Susan Friedmann [00:23:01]:
Excellent. Well, Dave, I know that our listeners would be eager to hear more about how they could get in touch with you because, as I say, this is something that we don't really know very much about, you know? They were like, how can I find out more? So take it away.

David Faux [00:23:21]:
Oh, well, my website is dhf-law.net. My name is David Faux, f a u x. I'm fairly Googleable, and I do consults after doing events like this. I'm thankful for getting the exposure that, Susan, that your podcast might give me. So if anybody calls and mentions Aviva Publishing, I'd be happy to give them a half-hour free consult just to talk over their issues, and we can take it from there.

Susan Friedmann [00:23:49]:
Brilliant. That's wonderful. That's super generous. Thank you so much. And, Davis, you know that we always like to end off with our guests leaving a golden nugget. What are those final words of wisdom that you'd like to leave our listeners with?

David Faux [00:24:06]:
Register your copyright with the US Copyright Office.

Susan Friedmann [00:24:10]:
Amen. I should put that link in the show notes as well because it is one that's, it's a good one. But as you say, you need a little bit of time to go through those forms. They don't make it easy. That's for sure.

David Faux [00:24:26]:
Right. Well, they try to. I know people at the copyright office. They're good people, but they're definitely overworked and underpaid. That has its effects.

Susan Friedmann [00:24:34]:
Of course. Well, thank you. Thank you so much for sharing your wisdom. Really appreciate it.

And by the way, listeners, if your book isn't selling the way you want it or expect it to, let's you and I jump on a quick call together to brainstorm ways to ramp up those sales because you've invested a whole lot of time, money and energy, and it's time you got the return you were hoping for. Go to BookMarketingBrainstorm.com to schedule your free call. In the meantime, I hope this powerful interview sparks some ideas you can use to sell more books. And until next week, here's wishing you much book and author marketing success.

Here's how to connect with David

Register your copyright with the US Copyright Office