There are certain persistent legal myths that refuse to die. For instance, every few weeks l come across a blog post that advises writers to use the “poor man’s copyright” by mailing themselves a copy of their manuscripts and never opening the envelopes. Somehow, the postmark is supposed to provide legal protection.
Nonsense, I yell at my computer screen. I’ve emailed bloggers to explain that they are encouraging writers to waste paper and postage for no reason.
But a few weeks later, the poor man’s copyright pops up again.
Legal Myths Put to Rest
Today, I want to point out a few Legal Myths that seem to live on and on in the writing world. Typically, they worry writers unnecessarily, and I am all for reducing unnecessary worry.
Myth #1: Poor Man’s Copyright
Most likely, you’ve heard that mailing yourself a copy of your manuscript and never opening the envelope is a less expensive way to claim your copyright and protect your work. Not so.
I suspect this myth was born decades ago when artists could lose their copyrights if they failed to register their work with the US Copyright Office. That is no longer the law. Today, copyright attaches automatically as soon as a creative work is captured in tangible forms such as a piece of paper, a hard drive, or a recording device. Your first draft, riddled with typos and clichés, enjoys the same copyright protection as a finely-polished blockbuster.
Registering the copyright in your work with the US Copyright Office is a separate and optional step, but typically a good idea. Registration creates a public, searchable record of your claim and is required before an infringement suit may be filed. Prompt registration (within three months following first publication) increases the damages recoverable in an infringement action. Even if you miss that three-month window, you may—and should—register the copyright in your book.
And it’s cheap. Online registration costs $35, a price most of us can afford. If you ever have to pursue an infringer, it’s time and money well spent.
Myth #2: You Can’t Use Real Names
I frequently receive emails from writers who want to list names in their acknowledgments. Or they want to name names in a memoir. They wonder if they need permission. In almost all cases, the answer is no.
You do not need permission to use someone’s name if you are mentioning them in a positive or neutral light, such as in your acknowledgments. Also, you do not need permission if you are using a name in an informational and neutral manner, such as identifying your fourth grade teacher or who attended your wedding. Similarly, you may use names that are part of historical events such as saying Neil Armstrong landed on the moon.
You need to be careful when:
• You have a professional relationship with the person. Medical, legal, financial, and other professionals are bound by stricter privacy rules.
• It appears as if the named person has endorsed, approved of, or is somehow related to the work. Create a false impression could get you in legal trouble.
• The information you are disclosing may be damaging or seriously embarrassing to the person. In that case, you need to consider the risks of defamation or invasion of privacy claims. I write about that more in my post, How To Use Real People In Your Writing Without Ending Up in Court. This brings me to my next myth.
Myth #3: Changing One Letter is Enough Protection
Suppose you create a villain who is abusive, incompetent, corrupt, and clearly based on your boss. Secretly, you hope your boss reads your work and feels humiliated. But to avoid a lawsuit, you change one letter in his name. Will that be enough to protect you?
Defamation is a false statement of fact about a living, identifiable person that causes reputational harm. Invasion of privacy is the disclosure of private facts about a living, identifiable person that are damaging or seriously embarrassing and not of public interest.
If you are publishing risky material, consider masking the distinguishing characteristics of the wrongdoers so they are not identifiable. Alter physical descriptions. Switch genders. Move events to new settings. These changes are permitted, even in memoirs, to protect privacy and your wallet.
Here’s a great example of what not to do. Andrew Greene sued Paramount Pictures for $25 million claiming he was defamed by the character Rugrat Kiskoff in the movie The Wolf of Wall Street. Greene claims he is easily identifiable because Rugrat, like Greene, wears a toupee. In fact, Greene was particularly offended that the toupee is “accentuated and mocked in an egregiously offensive manner.”
Frankly, the film producers were asking for trouble by using something as distinctive as a toupee since it was so clearly connected to an identifiable person. But a toupee, particularly a bad one, must have been too funny to resist.
My advice is—avoid the bad toupee.
Myth #4: My Ideas are Worth a Fortune
Many writers, particularly new ones, are sure their story ideas are worth a fortune. To make matter worse, these writers are distressed to hear that ideas are not protected by copyright. After all, aren’t ideas the core of creative work and the spark most worth protecting?
Unfortunately, the law disagrees.
Think about it. How many times have you had what seemed like a brilliant idea, but when you sat down to turn it into a book, the idea sputtered out around page 30, or page 5, or page 2? An idea has little value unless you do the hard work of bringing it to life in a story. It’s the execution of the idea that is valuable and protectable, not the idea alone.
This gets me to a related myth.
Myth #5: Agents/Editors/Producers Will Steal My Work
Many writers are reluctant to send out query letters and submit manuscripts because they fear agents, editors or film producers will steal their work.
While this may happen, it’s a rare occurrence and mostly when big-ticket movies are involved. Disney, in particular, seems to get hit with these lawsuits.
But stealing claims are less common in the publishing world. The success of a publishing professional depends on a solid reputation. If she damages her reputation by stealing work, writers and publishers would avoid dealing with her. It could be a career-ending mistake.
What are your favorite legal myths?
(Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.)
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