for Poetry Submissions

Copyright © :  #*$ !  &  ? ? ?

by F.J. Bergmann

As poets, we should understand what copyright is, and what rights it actually gives us. Copyright for literary intellectual works protects both written work and sound recordings. Your writing, or recorded performance, is automatically protected by copyright from the moment of its creation, defined as when it is first recorded in a fixed form (written down, or made into an audio or video recording). Bear in mind that titles and short phrases cannot be copyrighted, and that to copywrite means to write copy (words) for advertising—an entirely different animal.

Contrary to what many people believe, it is no longer necessary to register your copyright with the Library of Congress, nor to place the little © symbol upon your work for your copyright to be valid. Registration does establish a public record of your copyright. Otherwise, the only advantage of prior registration is to entitle you to much larger damages and attorney’s fees in the event of infringement; you must register to sue for infringement in any case. Copyright registration was $30 in 2005, but you can register as many poems (2 copies) as you can fit in a package for one fee. You will need to refer to it as a “collection” and give it a title. Correcting errors—what we poets call revisions—in a previously registered document will cost you $100 a pop. Mailing yourself a copy of your work gives no legal protection whatsoever.

Work published before 1989 must bear a copyright notice to maintain protection, and the notice does protect against "innocent" infringement, e.g. “Oh, I didn’t realize that was copyrighted.” If you choose to include a notice, it should be in this form: the copyright symbol © (Option-G for you Mac users) or the word “Copyright”; the year of first publication; and the name of the copyright owner. Bear in mind that including a copyright notice on work submitted to literary journals is generally considered tacky; yes, the editor is familiar with copyright law, and no, he’s not going to rip off your poems.

Copyright protection is not perpetual—yet. Disney is doing all in its fell power to change this before the copyright on Mickey Mouse(®) expires. Work created from 1978 on is currently protected for the author’s lifetime plus 70 years. Once this limit has passed, the work is considered to have entered the public domain, and copyright restrictions no longer apply.

Plagiarism, even of works in the public domain, violates the ethical criteria of academic and other publications. The onus of being considered a plagiarist is probably harder to bear in the literary community than mere financial damages. The internet makes it easier than ever before to catch lifted material: putting a suspect phrase (in quotes) into your favorite search engine will elicit the source if it exists online.

The concept of fair use is somewhat indeterminate. “Limited portions” may be used for critical commentary, news articles, academic writing, or educational material; the law does not specify the exact number of words. The intent of the use is a major factor, but so is its effect on the potential market. It’s all well and good to distribute information as a non-profit, educational, public service; but if the content is lifted from a work for sale intended for the same consumers, the copyright owner can rightfully sue for loss of profit due to infringement. Infringement occurs regardless of whether the source is cited; getting permission (in writing!) from the copyright owner is the critical aspect.

Parody is always considered fair use, but derivative work is another matter. Using the work of bygone luminaries as inspiration is a time-honored tradition in the arts—but if the material you adapt is not yet in the public domain, you will be liable. If Shakespeare had been a contemporary of Leonard Bernstein’s, West Side Story might have been considered infringement.

Interestingly, the use of lines of other’s work as epigraphs to individual poems does not seem to be covered by law, but no one ever seems to get sued over that. Note that epigraphs at the beginning of published books, as well as lines from song lyrics and poems appearing in the text of a book, are normally used with permission. Translators must also get permission from the publisher of the text they are translating, if still covered by copyright; this is normally given free of charge for translations of individual poems.

This is not meant to be a comprehensive article on copyright, but a quick overview. As the U.S. Copyright Office tells us, “If there is any doubt, it is advisable to consult an attorney.” For more information, see the horse’s mouth: www.copyright.gov.

© 2005 F.J. Bergmann

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