D. J. Herda

Someone wrote in and assked if a person can make "changes" to another author's copyrighted book and republish it. I know, I know. But read on anyway to see how I answered.

*     *     *

Sure. Absolutely, no problem. Just make sure you have tons of money in a bank account somewhere, because you're going to need it.

Of course, you can't make "changes" to someone else's book and republish it under your name--or any name, for that matter. That would still be misappropriation and copyright infringement. Copyrights exist for a reason—and preventing misappropriation of creative or intellectual property is number-one on the Hit Parade. When you infringe upon someone else's IP, you're depriving that person of the potential ability to generate income and notoriety from the work over which he has sweated, often for years. No matter how you slice it, that's a big no-no.

Now, you can completely rewrite an existing book about the same topic or genre as the original book and publish that under your name. But it must be a completely new work written with completely different wording that makes it a unique publication in itself. The same holds true for book cover art. Artists, designers, and photographers, too, are protected from misappropriation of their work. Unless you take an existing copyrighted image and completely transform it into something unique, you can't use it without permission. Read More 

Have you ever wondered how you can create a unique book when it's eerily similar to another book that's already been written? Good question.

First, ignore the similar elements between your book and any other, and see your story in your mind as if it were playing out as a movie on a screen. Describe it to yourself. Fine-tune it. Flesh out the weak spots and trim the dead weight. Then, push the original story as far from your mind as possible. After all, there's a reason for the phrase, "There's nothing new under the sun." That applies to books as well as life in general. Get used to the fact that your book, no matter how unique you think it is, will be "similar" to another book or two or ten thousand in one way or another. So?

If you're still concerned someone may compare your work to a previous tome, emphasize the differences. After all, you're the author; you can write whatever you want. Be more detailed. Place your book in a different part of the world. Populate it with different characters, different places, different descriptive narrative, and different dialogue. Set it in a different time period. Use your own literary voice, of course, and not the other author's. (Which, I would hope, you're beyond temptation to do in the first place.)

For instance, you're writing a book about the Civil War and how your main southern belle falls in love with her cousin's fiancé but marries a scallywag who abandons her to her beloved Tara in the end. Oops. Let's revisit that one a bit. Read More 

Someone asked a question online recently that stumped even me ... for a while at least. He wanted to know what happens to an author's book rights if the book isn't selling. Here's how I finally decided to respond.

*     *     *

This is an easy one. If your book is not selling, the Copyright Cops show up at your front door, usually around 3 a.m. although sometimes right in the middle of your favorite television show, and serve you a court order and an injunction forbidding you to receive any future royalties from book sales and ordering you to sign over all rights to your book to the federal government.

Surprised? You shouldn't be. Uncle Sam is trying to grab everything else you own, why not your creative endeavors, too? Read More 

When a writer asked online the other day if he could legally write a sequel to an existing work, he received a predictably muddled and incorrect response from one resondent in particular, who went out of her way to define what a derivative work is and what writing one entails--incorrectly, of course. Here's how I broached the subject.

*     *     *

Well, the Queen of Wrong missed the boat yet again. Funny how often it sails away without her!

The truth is that copyright laws pertaining to derivative works and whether or not an author can create a sequel based upon an original, copyrighted work are complex and can't be answered with a glib, and inaccurate, "No!" Giving such an answer is irresponsible and harmful to the world of truth and reality, not to mention the derivative work's author and his or her potential for success. Who would have guessed?

So, with Queenie's misinformation out of the way, here's what the U.S. copyright office has to say about the subject. Read More 

I came across an all-too-frequent question the other day from a novice writer who wanted to know if his publisher was scamming him by publishing his story in an anthology along with other writers in exchange for $500 each. He mentioned that the publisher's name will appear on the book's cover as the author. Here's what I advised.

*     *     *

If you ask a question like this one, you already suspect the answer, and you're right. The publisher, if promoting itself as a publisher, is scamming you. It's not a legitimate, conventional publisher, as other respondents have pointed out. It's a company that preys upon the dreams, hopes, and aspirations of the uninformed. Since you can't land a contract with a legitimate publisher, you turn to anyone who seems genuinely interested in your work. In fact, your "publisher" is genuinely interested only in your money. And that's a scam. A legal scam ("Let the buyer beware") but a scam nonetheless.

My suggestion to you: If you want to see your name "in lights" (and you do) but you don't have the skills to make it as an author with a conventional publisher (and you don't), ask yourself if having a book with your name on the cover (oops, it sounds as if the publisher is taking claim as the author, so scratch that) is worth paying $500. If so, go for it. On the other hand, if you're being led to believe that getting your first piece "published" will make getting other work published easier or that it will make you any money in the end, forget about this "deal." Believe me, it's no bargain, so I suggest you hit the bricks running. A little sadder but a whole lot wiser. Read More 

I ran across someone who wanted to know if he'd be commiting plagiarism by copying and pasting someone else's work into an online paraphrasing tool. Now, whenever I come across forum questions about plagiarism, I'll bet the farm that some horrendous answers follow. This day was no exception. Here's how I replied.

*     *     *

Wow! I can't remember when I've seen so many absolutely ridiculous—and thoroughly wrong—responses! Did you draft your question by the light of a full moon? If so, I think you'd better send out the hounds because the vampires are flooding the countryside!

Seriously, to all those geniuses who haven't yet learned how to read and assumed that you, the questioner, are talking about writing research or academic papers, you're acting out of ignorance and slothfulness. It's like assuming the questioner is using a Xerox machine to make paper copies of a work and gluing them to his computer screen with wallpaper paste. Is it possible? Sure. Is it a given? Of course not. Wake up, you other "respondents." School is out. You get no points just for showing up! Or for shooting from the lip! Read More 

I was trolling the Internet the other day when I came across a question from someone who wanted to know whether or not he could write a sequel to an existing film if he changed all the names and places used in the film. Interesting question. Here's my response:

*     *     *

Could you? Sure. If you change the names and places and don't use any dialogue or other material from the film word-for-word, you're creating a new work of art. It may be derivative, but then again, all new creations are derivative of one thing or another. Remember the phrase, There's nothing new under the sun? It's a memorable euphemism because it's true. Story ideas can't be copyrighted; names can't be copyrighted; descriptions and settings can't be copyrighted; other elements within common usage can't be copyrighted, all for obvious reasons. Just because you pick up a story at a point in time where the film leaves off, you can't be found legally guilty of plagiarism or copying something (a story) that doesn't actually exist yet (the sequel you're writing). Remember: Stories can't be copyrighted. Plots can't be copyrighted. Only the word-for-word representations of them (the verbatim manner in which the writer chooses to express them) can be copyrighted.

Now, with that said, "could you" write a sequel novel to a film is a lot different from "should you" write a sequel novel to a film, if you know what I mean. As another respondent pointed out, film companies, particularly major ones, have deep pockets. They can enjoy increased profitability from the publicity of a copyright-infringement action against you, even if they fail to prevail in a court of law. In other words, even if they lose, they win. Read More 

Someone asked this question on-line the other day, and you wouldn't believe the ridiculous answers people sent in. Here's how I responded.

*     *     *

There are lots of problems with several of the answers you received, beginning, of course, with the Queen of Wrong, who said incorrectly that "the very best outcome you can expect is a cease and desist letter, being banned from every possible platform you published on, and having your name known in the publishing industry as poison." Dead wrong. The very best outcome you can expect is to have no one notice your plagiarized material; so, you walk away thinking you outsmarted the world. All of the things Queenie mentioned as the "best" are actually varying degrees of the worst you can expect—just the opposite of what she said.

Now, add to the list of worst things a plagiarizer may experience are a criminal complaint, a court injunction against the plagiarizing author, and—yes, let's dig deeper into the well—a legal finding for the plaintiff in a court of law. That could indeed leave the plagiarizer paying a hefty fine, all court costs for both sides of the action, and punitive damages. How likely is that to break the financial back of the plagiarizer? That depends upon the severity of the infraction, but in the case of an entire book, for example, the total could run into the millions of dollars. Read More 

A question came up the other day on how to go about buying republication rights for copyrighted material. That's relatively simple to do--once you know the answer. Here's my take on the situation.

First, whether or not you'll have to pay for using copyrighted content depends upon the amount of content, the attribution you provide, and when, where, and by whom the original content was published. It also depends upon where and how you propose to republish the content. Some publishers welcome limited use of their content with appropriate credits as effective, free, word-of-mouth promotion. Others don't. The only way to find out for sure is to write the Rights and Permissions department of the publisher, which information should be listed on a book's copyright page or on a magazine or newspaper's masthead.

In your request, provide the publisher with the exact material you'd like to republish, the original publication's name, publication date, and author's name plus any other pertinent information you can think of. Then, propose an attribute, such as "Reprinted with the permission of Random House, Inc." or whatever is appropriate. Don't mention paying for the rights. If the publisher gives you the go-ahead, you're home free. (Retain a copy of the permission for future use, just in case.)

If the publisher replies to your request positively and suggests a proposed fee, feel free to negotiate. If they ask for $500, for example, offer them half that amount. You'd be surprised at how many books a publisher has to sell to make up $500—or anywhere near it. By granting limited republication usage rights, the publisher is raking in what is in effect "free money." And that contributes to the publisher's annual statement, which looks good to the corporate offices.

If you can't reach an agreement with the publisher, of course, you can always sidestep the entire rights situation by rewriting, rewording, and republishing your own interpretation of the material you had hoped to purchase. Remember: Thoughts, ideas, and concepts can't be copyrighted. Their stylistic rendition (how those thoughts are written) can be.

Present the same concepts in your own words, and you're home free. And you won't have to pay for republication rights. Simple, no? Who would have thunk it?

Smoke if you've got 'em.

*     *     *

D. J. Herda is author of the new series of writing advice, About Writing Right, available in eBook, paperback, and hardcover formats at Amazon and at fine booksellers everywhere. You can check out his column, "The Author-Ethicist," which runs at Substack.com weekly. Well, almost weekly. Occasionally weekly. Sometimes weekly. (Hey, I do my best!)

In effect, that's what someone wanted to know when he asked online if he could use characters already in existence, such as a kidnapped princess with long hair and healing powers. He received some answers that were predictably ridiculous. Here's how I responded.

*     *     *

I see you've received a couple answers so far, both of which are dead wrong and horribly misleading. Your character can have long hair, can lower herself on it like on a ladder, and even have the same name. (Most likely—more about names below.)

Ideas cannot be copyrighted, or else all of humanity would be in court defending against copyright infringement continually. Names cannot be copyrighted for the same reason. Likewise common descriptive words such as blonde, brunette, and redhead. Ditto for commonly used nouns such as tire, train, and fart (which is a bit like what the responses you've received so far smell like. And likewise for verbs such as run, procrastinate, and litigate.

People who have no idea what copyright means and what the U.S. copyright laws are shouldn't be telling other people what's copyrightable and what isn't. Phrases taken from a published work word-for-word may be copyrighted (assuming the work isn't old enough to be in the public domain, in which case you can do whatever you want with that work, including republishing and even selling it yourself). Entire sentences from a published work not in the public domain are taboo to use subject to the previous exception. In other words, the form an author uses to express himself in words—and not the names, descriptions, titles, and individual words—can be copyrighted.

Now, with that said, you can use the name Mickey and you can use the word mouse in your own writing without any fear of repercussion from copyright violation. But you can't use the name "Mickey Mouse" because, although not copyrightable, Walt the Disney Person was smart enough to take out a trademark that prevents anyone else from using that moniker. How you find out what phrases are trademarked or in the public domain is another issue entirely. You can begin with an online search of the U. S. Patent and Trademark Office. You'll find them at THIS address:
 
https://www.uspto.gov/trademarks/search
 
You can also contact an attorney, but that will cost a few bucks. You may want to do that in the end, anyway, if you want to be certain something isn't trademarked before you use it in your own work and risk getting blowback from the trademark holder, which is more likely than not a large, well-heeled corporate entity with a large, well-heeled legal staff on retainer.

Just my thoughts on the matter. Before taking any actions that might result in your legal embroilment, you should check with an intellectual rights attorney or, if you're a member of a writing association such as The Authors Guild, run it by their legal department. That won't cost you anything more than the cost of annual dues for membership.

Meanwhile, smoke if you've got 'em.

*     *     *

D. J. Herda is author of the new series of writing advice, About Writing Right, available in eBook, paperback, and hardcover formats at Amazon and at fine booksellers everywhere. You can check out his column, "The Author-Ethicist," which runs at Substack.com weekly. Well, almost weekly. Occasionally weekly. Sometimes weekly. (Hey, I do my best!)

Someone I never met asked someone he never met if he could legally change the book cover and rewrite the copy for a book originally published in 1937. It has no copyright notice anywhere inside. Interestingly enough, several people responded. Here was my buck-and-a-half reply.

*     *     *

I see you have received several answers to your question. Congratulations. Unfortunately, none of them adequately advises you on the legalities of what you're asking. One respondent's advice to wait another decade before proceeding is woefully inadequate. Another one's suggestion to check the title with the Library of Congress likewise may tell you when the book was published but not whether or not it's still under copyright or ever has been. And a third respondent's suggestion that you Google it is absurd. All that will tell you is whether or not the book has been mapped by Google's spiders.

To know for sure what the law is, why not go directly to the horse's mouth? Here's what the U.S. Copyright Office has to say about it: Read More 

So, you're contemplating writing under a pen name but worry that doing so may obscure your legal rights to your work, is that the issue? If so, you can relax. Using a pen name when publishing a book doesn't change your legal name, rights, or responsibilities. You can be born Robert Smith on your birth certificate and go through life calling yourself Bob Adams, but that doesn't change your legal name, and it doesn't shelter you from your responsibilities under the law. Even if you were to sign a contract under a pseudonym, the law recognizes that the legal YOU signed it, no matter what name you used on the agreement, and YOU are legally responsible for all eventualities.

There's a good reason for this, of course. Except for the permanent responsibility (and rights) assigned to you as your legally registered self (most often determined by the name on your birth certificate unless legally changed by court order), you could change identities every ten minutes simply by using a pen name or pseudonym. You could claim that, since you used a pen name on a contract, that YOU aren't legally responsible for whatever "Robert Smith" didn't sign but "Bob Adams" did. Read More 

Someone asked online the other day about whether or not a beginning author needs copyright insurance for any sort of liability. He received some ridiculous and potentially harmful answers. Hopefully, my response set him straight.

*     *     *

There have been some horrible answers here. Possibly because the phrase "copyright insurance" is meaningless in English. There is no insurance for copyright of which I'm aware because it's unnecessary. If, however, you're asking about author's liability insurance against copyright-infringement actions, then I get it. No one else did, including the respondent who advised you that you won't need liability insurance as long as you write fiction or tell the truth in your nonfiction writing. That respondent is way off base. Here's why.

Anyone can sue anyone else for virtually anything in the United States. Whether or not that plaintiff's action will prevail in a court of law is another matter. So, with that understood, it all boils down to a question of likelihood. Just as with any type of insurance coverage, you have to ask yourself about the chances of your needing it before buying it. As a writer, in other words, you won't actually need liability insurance until you actually need liability insurance. Read More 

A novice author asked a forum question the other day about why a publisher should object to his making 100 copies of his book to give to his relatives. Here's how I responded.

*     *     *

I see that one respondent, Andrew, gave you sound advice. Several other respondents should learn not to speak without thinking things through or knowing what they're talking about. Not the first time by far, and knowing at least one of them and her propensity for her shoot-from-the-lip, misleading replies, it won't be the last.

The bottom line has nothing to do with who copyrights the book in your name—you or a publisher. You already own copyright; who registers that copyright for you is a moot point. Nor has the bottom line anything to do with making a publisher's job "more complicated and difficult for them to deal with." It does have to do with sales. Whether or not you already have a publishing contract or hope to land one down the line, when you cut into the marketing gene pool, you deprive a publisher of that many potential sales. That's true whether we're talking about 100 or 100,000 copies and whether it's an existing or a potential publisher. Read More 

That's what someone asked on a forum the other day. Luckily for that person, I happened to read some of the answers others provided him. Here's what I wrote:

*     *     *

First off, yes, it's okay from a copyright standpoint to write a scene from a movie using different characters and, of course, your own wording. That's called rewriting or paraphrasing, and it's perfectly legal. As for the other answers you've received to your question, I once gave a lecture at Dixie State University and knew several students and teachers there, and while I don't want to cast aspersions, I wouldn't put a whole lot of stock in advice about copyright law that someone who "studied Psychology and Creative Writing" there just gave you. Ditto for anyone who says that the "scene, as well as the movie, is the intellectual property of the writers."

What?

So, if I describe a scene of Tara from Gone with the Wind in my own words in my next book (that's the question here, remember?) and I rename it Terrance, I'm going to Copyright Hell? Is that the way things work in your world? Uh-uh.Not in mine. In my world, scenes can't be copyrighted. Only the exact phrasing one uses to describe it, assuming it's not a generic descriptrion already in wide use throughout the lexicon. I suggest you study the U.S. copyright laws before leading people down that "yellow brick road" (which, by the way, is not a copyrighted "scene" and can be used anywhere by anyone at anytime, although there may be other reasons than copyright infringement for not doing so—read on). The reason you can use it is that, if copyright extended to scenes, we'd no longer be able to describe a setting as an "idyllic wooded grove," "a babbling brook," or a "rusting old farmhouse with a dilapidated white picket fence." Get it? Yeah, I didn't think so. Read More 

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.

*     *     *

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. Read More 

Someone asked me the other day if I thouight she could use "short phrases" from another author's work as long as they weren't related to the plot or essential to the author. Now, I had to think about that one for some time before responding (about a second-and-a-half). Here's what I told her.

*     *     *

Absolutely, you can use short phrases from another author's work. Just remember that, if you do, you should be prepared to go to court because you're going to be sued.

Can you use short phrases with proper acknowledgement without being sued? Possibly, and possibly not. That depends in part upon what your definition of "short phrases" is: You never do define it, which I find interesting. Are these short phrases three pages, three paragraphs, or three words in length? It makes a difference.

Peculiar, too, is your contention that these appropriated phrases are not related to the plot or essential to the author. I'm curious: Upon what do you base those two assumptions? Are you an analytic literary expert? An attorney who specializes in copyright infringement? A justice on the U.S. Supreme Court? A mind reader? Obviously not. If you were, you'd know that neither one of your contentions offers legal atonement for infringement. Read More