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About Writing Right: The Blog


Someone asked me the other day if he'd be stealing from the Terminator books if he wrote about a character with a retractable bayonet in its gauntlet. Oh, yeah. Let me at this one! Here's my response.

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Copyright pertains to specific creative expressions and how they're assembled in a precise arrangement. If, for example, you wrote about a character with a retractable bayonet in its gauntlet and described the scene in your book word-for-word as it's described in the Terminator work, you're committing plagiarism—that is, you're violating copyright by stealing someone else's work. But, if you use a different description than the original (paraphrasing by using a different word order, words with similar meanings to the original words, changing sentence structure), you're not. Regardless of whether or not the bayonet is "logical," as one commentator foolishly advised, it's not infringement. Logic has NOTHING to do with copyright.


Remember: For a writer, WORDS in their specific arrangement in original works are copyright-protected by their creators or assigns from the moment of creation; concepts, gizmos, and gimcracks aren't. And, no, it doesn't matter whether or not the gizmos go back a thousand years into history. Words written in a specific order can be copyrighted; concepts or things can't be.

Think about it for a moment. If people could copyright concepts, we'd all be screwed. No one could write anything about which someone else has already written. Copyright laws exist to protect original, creative intellectual rights against theft. If you steal someone's exact creation, whether a paragraph, sentence, book, film, recording, painting, drawing, etc., you're depriving the originator of all the rights that duly belong to him or her as the original creator, including potential monetary rights. There's no practical difference in a court of law between stealing $1,000 from someone's home safe or gaining $1,000 in sales or royalty payments for misappropriating someone else's creative work. In both cases, you're $1,000 richer at the expense of someone else, who is $1,000 poorer. See?


Now, with that said and the green light flashing for you to proceed, you should understand that, besides copyright protection, creators may also be entitled to trademark protection. So, whereas a retractable bayonet can't be copyrighted by the Terminator creators, it might have been trademarked (although in this case, where the actual item has been in use for centuries, it's doubtful that a trademark application would be honored).


Think of it this way. The words, "quarter-pounder," commonly trigger thoughts of McDonald's, but since that phrase has been used generically forever, McDonald's can't copyright it. That means anyone can (and does) use it without concern. But McDonald's CAN trademark its recognizable golden arches image, and it has done so.


Unfortunately, trademark laws are far more complex than copyright laws, with all sorts of exceptions to the rules. Fortunately, few writers have to worry about trademarked images unless they really get down and dirty. And copyright laws, when you stop to think about them, are simply common-sense protections against proprietary theft.


Got it? As always, when in doubt, consult an attorney who specializes in proprietary rights. But, in most cases, common sense should prevail.


D. J. Herda is author of the new eBook series of writing advice, About Writing Right, available at Amazon and at fine booksellers everywhere.

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