Copyright Notice - Part 1

This chapter is about copyright notice. That's the "c" in a circle, followed by a publication date and name, usually seen on published works. The purpose of such a notice is to inform the public that a work is copyrighted, when it was published and who owns the copyright. Before March 1, 1989, a notice was required on all published works as a condition of keeping the copyright. For works published after that date, a notice is not required. Nonetheless, it's a very good idea to provide a notice anyway on all your published works.

The use of a copyright notice is the responsibility of the copyright owner and does not require any advance permission from, or registration with, the Copyright Office.

The extent to which you need to be concerned with the material in this chapter depends upon your particular situation.

Authors of books published by established companies As a practical matter, you don't have to worry much about the copyright notice if you're being published by an established publisher. The publisher, as a matter of course, will include copyright notices on all copies of the books they print and distribute. The author just needs to make sure that the information in the notice is correct.

Walt Whitman

Freelance writers Freelance writers whose work appears in magazines and other periodicals are protected by the notice the publisher provides for the periodical as a whole. But some freelancers choose to include a separate notice on their work.

Self-published authors Persons who self-publish their work must compose and format their copyright notices themselves and should carefully read this chapter, as should those who work in the publishing field.

When Copyright Notice Is Required

Copyright notice is mandatory for some works and not for others, depending upon the date of publication.

1. Works Published Before 1978

Until 1978, all works published in the United States had to contain a valid copyright notice to be protected by copyright. Failure to provide the notice resulted in loss of the copyright in the work—that is, the work was injected into the public domain, meaning that anyone could copy or otherwise use it without the author's permission.

EXAMPLE: Bernie self-published his poetry collection in 1977. He knew nothing about copyright law and failed to provide a copyright notice on the work. Shirley finds a copy of the collection in a used bookstore in 2000 and decides to include several of Bernie's poems in a compilation of modern American poetry. Since the book did not contain a copyright notice, it is considered to be in the public domain and Shirley may reproduce all or part of it without Bernie's permission.

2. Works Published Between January 1, 1978, and March 1, 1989

As the example above illustrates, the pre-1978 notice requirement often had draconian results—authors could lose their copyright protection just because they failed to comply with a mere technical formality. The harshness of this rule was moderated somewhat by the Copyright Act of 1976, which provided that a work without a valid notice that was published after January 1, 1978, did not enter the public domain if—within five years after the publication—the work was registered with the Copyright Office and a reasonable effort was made to add a valid notice to all copies of the work distributed after the omission was discovered.

3. Works Published After March 1, 1989

The copyright notice requirement for published works ended altogether when the United States signed the Berne Convention, an international copyright treaty. All you need to know about it now is that it required the U.S. to get rid of its notice requirement, which happened on March 1, 1989. Any work printed after that date need not contain a copyright notice, even if it was originally published prior to that date.

EXAMPLE: George self-publishes a book in 1988. The work had to contain a valid copyright notice to be protected by copyright. He then reissues the book in 2000. The newly printed copies need not contain a copyright notice, but it is a good idea to provide one anyway (see below).

4. Special Rules for Foreign Works

Works by foreign citizens or residents published in foreign countries without a copyright notice from January 1, 1978, through March 1, 1989, entered the public domain under the law then in effect just like any other work. However, as a result of the GATT Agreement, an international trade agreement, the U.S. copyright in these works has been automatically restored effective January 1, 1996.

Why Provide a Copyright Notice on Published Works?

Even though a notice is not required for works printed after March 1, 1989, you should still make sure that a valid copyright notice appears on every copy of every work you publish. There are several excellent reasons for this.

1. Notice Makes Infringement Suits Economically Feasible

Authors and other copyright owners enforce their copyright rights by suing persons who copy their work or otherwise exercise their copyright rights without their permission. Unfortunately, copyright infringement litigation is usually very expensive (copyright attorneys usually charge at least $150 an hour). As a result, copyright infringement lawsuits may be economically feasible only if the author can obtain substantial damages (money) from the infringer.

The way to get substantial damages is to prove that the infringement was willful—that is, that the infringer knew that he was breaking the law but did so anyway. Courts usually award far more damages where the infringement was willful than where the infringer didn't realize what he was doing was wrong. (See Chapter 12, Copyright Infringement, for a detailed discussion of infringement suits.)

Proving willfulness can be difficult if a work lacks a valid copyright notice. The reason for this is what's known as the innocent infringement defense. If a person copies a published work that does not contain a copyright notice, the copier can claim in court that the infringement was innocent—that is, he or she

didn't know the work was protected by copyright. If the judge or jury believes this, the copier may still be liable for infringement, but the damages (monetary compensation) may be drastically reduced from what they otherwise would have been. On the other hand, if there is a valid copyright notice on the work, the infringer cannot claim innocence and will be treated as a willful infringer.

EXAMPLE 1: Mary self-publishes a book without a copyright notice. Izzy copies a substantial amount of it in a book of his own. Mary sues Izzy for copyright infringement. Mary proves to the court that she suffered $25,000 in damages due to the infringement. However, Izzy, while admitting that he copied Mary's work, claims that he did not realize it was copyrighted because it lacked a copyright notice. The judge buys Izzy's story, and as a result rules that Izzy need only pay Mary $5,000 in damages rather than the $25,000 required to fully compensate her.

EXAMPLE 2: Assume instead that Mary included a valid copyright notice in her book. She sues Izzy for copyright infringement. Since her book contained a valid notice, Izzy cannot argue that he did not realize the book was protected by copyright. As a result, Mary is awarded the full amount of damages required to fully compensate her—$25,000.

2. Copyright Notice May Deter Potential Infringers

Another important reason to place a copyright notice on all copies of your published work is that it may help deter copyright infringement. The notice lets readers know that the work is protected by copyright and may not be copied without the owner's permission. Moreover, since copyright notices appear on the vast majority of published works, a reader of a work not containing a notice might mistakenly assume that the work is not copyrighted, and feel free to copy it.

3. Notice Protects Your Work in Countries Not Adhering to the Berne Convention

There are about half a dozen countries that do not afford copyright protection to works not containing valid copyright notices. Providing a copyright notice on your work will enable your work to be protected in these countries.

Tip

Placing a copyright notice on your published work costs nothing and may end up saving you thousands of dollars by deterring others from copying your work and enabling you to recover your full measure of damages against those who do copy it. Always, always, always place a valid copyright notice on your published work!

When to Provide Notice

A copyright notice should be included on a work when it is first published and on every subsequent published edition. A work is published for copyright purposes when it is made generally available to the public by the copyright owner or others acting with the owner's permission—a publisher, for example. It is not necessary to sell or otherwise transfer any copies of the work—publication occurs if the work is made available to the public without restriction. For example, leaving copies of a work in a public place would constitute publication, as would distributing copies on a busy street. But distributing copies to a restricted group would not constitute publication. Sending five copies of a manuscript to five publishers would not be a publication, nor would circulating copies to colleagues (a restricted group) for comment.

A copyright notice has never been required for unpublished works, and will not bar an infringer from raising the innocent infringement defense. But, under certain circumstances, it might be desirable to provide a notice on an unpublished manuscript.

Form of Notice

There are strict technical requirements as to what a copyright notice must contain. Follow these rules exactly or your notice may be found to be invalid and not accomplish its intended purpose. A valid copyright notice contains three elements:

• the copyright symbol
• the year in which the work was published
• the name of the copyright owner. It is not required that these elements appear in any particular order in the notice, but most notices are written in the order set forth above. We'll discuss each element in turn.

1. Copyright Symbol

You should use the familiar © symbol—that is, the lowercase letter "c" completely surrounded by a circle. The word "Copyright" or the abbreviation "Copr." are also acceptable in the United States, but not in many foreign countries. So if your work might be distributed outside the U.S., be sure to always use the © symbol.

Adding the Word "Copyright" to Notice

Often, you'll see the word "Copyright" or the abbreviation "Copr." followed by or preceding the © symbol—for instance, "Copyright ©." Technically, this is not required—the © symbol alone is sufficient. However, it is a good idea to include the words anyway because they will further clarify that the work is protected by copyright.

2. Year of Publication

The copyright notice must also state the year the work was published. For first editions, this is easy. Put the year the work was actually published.

a. New versions

The copyright notice for a new version of a work must contain the date that version was published. The notice need not contain the date or dates of the prior version or versions. However, it is common practice to include such dates in the copyright notice. One reason is to let the reader know when the earlier versions were created. Another reason to do this is that it is not always easy to tell if a work qualifies as a new version under Copyright Office rules.

EXAMPLE: Sally Bowles published the first edition of her high school textbook on French in 2000. The copyright notice read "Copyright © 2000 by Sally Bowles." The book is revised and republished as a second edition in 2003. If the second edition qualifies as a new version, the notice need only state "Copyright © 2003 by Sally Bowles." However, Sally is not sure whether the changes she made were substantial enough to make the second edition a new version. She decides to err on the side of caution and writes the notice like this: "Copyright © 2000, 2003 by Sally Bowles."

b. Form of date

The date is usually written in Arabic numerals—for instance, "2003." But you can also use abbreviations of Arabic numerals—for instance, "’03"; Roman numerals—for instance, "III"; or spelled out words instead of numerals—for instance, "Two Thousand Three."

Tip

Copyright owners sometimes state the year of publication in Roman numerals in the hope readers won't be able to decipher it and will think the work more recent than it really is. However, dates not written in Arabic numerals may not be acceptable in some foreign countries.

3. Copyright Owner's Name

The name of the copyright owner must also be included in the notice. Briefly, the owner is:

• the author or authors of the work
• the legal owner of a work made for hire, or
• the person or entity (partnership or corporation) to whom all the author's exclusive copyright rights have been transferred.

a. Author or authors

Unless a work is made for hire (see below), the original author or authors own all the copyright rights. Where all these rights are retained, the author's name should appear in the copyright notice.

EXAMPLE: Eli Yale self-publishes a book on ivy gardening in 2003. Eli wrote the book himself and owns all the copyright rights. The copyright notice should state: "Copyright © 2003 by Eli Yale."

If there are multiple authors, they should all be listed in the copyright notice. The authors' names can appear in any order.

EXAMPLE: Joe Sixpack, Louis Loser and Benny Bigmouth write a book together about nuclear physics. All their names should appear in the copyright notice. For example: "Copyright © 2004 by Joe Sixpack, Louis Loser and Benny Bigmouth."

b. Works made for hire

A work made for hire is a work made by an employee as part of her job, or a work specially ordered or commissioned under a written work-for-hire contract. The writer's employer or other person for whom the work was prepared is the copyright owner and that person's (or entity's) name should appear in the copyright notice. The writer-employee's name should not be included in the notice.

EXAMPLE: Archie and Marion are technical writers employed by Datavue Publications, Inc. As part of their job, they write a technical manual that Datavue publishes. Only Datavue's name should appear in the copyright notice: "Copyright © 2004 by Datavue Publications."

c. Transferees

If all of the copyright rights owned by the author—or by the owner of a work made for hire—are transferred to another person or entity, that name should appear in the copyright notice on all copies printed and distributed after the transfer. However, any copies printed before the transfer occurred may be distributed without updating the notice.

EXAMPLE: Eli Yale self-publishes his book on ivy gardening in 2003. His name alone appears on the copyright notice. He prints 1,000 copies and by January 2004, 500 have been sold. In February 2004, Eli transfers his entire copyright in the book to Joe Harvard, the owner of a small bookstore. Joe is now the copyright owner. However, Joe can distribute the 500 unsold copies without updating the copyright notice they contain, even though the notice states that Eli is the copyright owner. But if Joe prints and distributes any new copies, his name alone should appear in the copyright notice.

The most common form of transfer of rights is by a writer to her publisher. A writer can sell all or part of her copyright rights to a publisher. This is a matter for negotiation. Trade book publishing contracts typically provide the publisher with an exclusive license to exercise the rights the publisher needs (for example, the right to publish the book in all Englishspeaking countries). In this event, the author's name should appear in the copyright notice, not the publisher's name, because the author has retained some of her copyright rights. Another approach, commonly used in textbook publishing, is for the author to transfer all his copyright rights to his publisher. Where this occurs, the publisher's name should appear in the notice.

What Name Goes on the Notice Where Rights Are Transferred to Different People?

Transferring Copyright Ownership, that a copyright is completely divisible—that is, the owner may transfer all or part of her exclusive copyright rights to whomever and however she wishes. For example, a copyright owner can transfer less than all of her rights and retain the others, or transfer some rights to one person or entity and all the others to other transferees. In this event, it can be confusing to determine just who the owner of copyright is for purposes of the copyright notice. The general rule is that unless the author—or owner of a work made for hire—transfers all her copyright rights to a single person or entity, the author's name should appear in the notice.

EXAMPLE: Lucy has written a novel. She sells to Schultz Publishing Co. the right to publish the book in hardcover in North America. Lucy sells the paperback rights to Pequod Press. Finally, Lucy sells the right to publish her novel outside of North America to Linus Publications. Lucy's name alone should appear in the copyright notice on the hardcover, paperback and foreign editions of her book. In contrast, if Lucy sold all her rights to Schultz, its name should appear in the notice.

The one exception to this general rule is where a collective or derivative work is created from preexisting material.

d. Form of name

Usually, the owner's full legal name is used. However, it is permissible to use an abbreviation of the owner's name, a last name alone, a trade name, nickname, fictitious name, pseudonym, initials or some other designation as long as the copyright owner is generally known by the name or other words or letters used in the notice. For example, the novelist David Cornwell could use the pseudonym John le Carré (by which he is generally known), or the International Business Machines Corporation could use the abbreviation "IBM." However, if the author is generally known only by her full name, only that name should be used in the notice.

If You Want to Remain Anonymous

The word "anonymous" should not be used in a copyright notice because an author is obviously not generally known by that name. Likewise, it is not advisable to use a pseudonym by which you are not generally known. You can avoid revealing your name in a copyright notice, and still ensure the notice's validity, by transferring all of your copyright rights to your publisher. This way, the publisher's name may appear in the notice. Another approach would be to form a corporation, transfer your entire copyright to it, and then use the corporation's name in the notice.

If the copyright owner is a corporation, it is not necessary to include the word "Inc." in the name, even if this is part of the corporation's full legal name. Nor is it necessary for the word "by" to precede the copyright owner's name, although it is commonly used—for example, a notice can be written as "Copyright © 2004 by Joe Blow" or "Copyright © 2004 Joe Blow."

Copyright Basics

This chapter is an introduction to some basic copyright concepts and vocabulary. It is designed to pave the way for more detailed discussions in later chapters. We therefore urge you not to use this material to reach a final conclusion about any particular issue. Only after reading one or more of the later chapters will you be in a position to make a judgment about a particular question or course of action.

Why Have a Copyright Law?

The Founding Fathers recognized that everyone would benefit if creative people were encouraged to create new intellectual and artistic works. When the United States Constitution was written in 1787, the framers took care to include a copyright clause (Article I, Section 8) stating that "The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited times to Authors … the exclusive Right to their … writings."

The primary purpose of copyright, then, is not to enrich authors; rather, it is to promote the progress of science and the useful arts—that is, human knowledge. To pursue this goal, copyright encourages authors in their creative efforts by giving them a mini-monopoly over their works—termed a copyright. But this monopoly is limited when it appears to conflict with the overriding public interest in encouraging creation of new intellectual and artistic works generally. (See Section E, below.)

What Is Copyright?

Copyright is a legal device that provides the creator of a work of art or literature, or a work that conveys information or ideas, the right to control how the work is used. The Copyright Act of 1976—the federal law providing for copyright protection—grants authors a bundle of intangible, exclusive rights over their work. These rights include:

• reproduction right—the right to make copies of a protected work
• distribution right—the right to sell or otherwise distribute copies to the public
• right to create adaptations (or derivative works)—the right to prepare new works based on the protected work, and
• performance and display rights—the right to perform a protected work such as a stage play, or display a work in public.

An author's copyright rights may be exercised only by the author—or by a person or entity to whom the author has transferred all or part of her rights. If someone wrongfully uses the material covered by the copyright, the copyright owner can sue and obtain compensation for any losses suffered.

In this sense, a copyright is a type of property—it belongs to its owner (usually the author) and the courts can be asked to intervene if anyone uses it without permission. And, like other forms of property, a copyright may be sold by its owner, or otherwise exploited for her economic benefit.

How Is a Copyright Created and Protected?

A copyright automatically comes into existence the moment an author fixes her words in some tangible form—for instance, the moment a book or article is typed, handwritten or dictated. No further action need be taken. However, it is wise to place a valid copyright notice on all published works and to register these works in the U.S. Copyright Office shortly after publication.

What Constitutes Publication

Knowing whether a work has been published or not can be important because many important copyright rules differ for published and unpublished works. A work is published for copyright purposes when copies are sold, rented, lent, given away or otherwise distributed to the public by the copyright owner or by others acting with the owner's permission—for example, a publisher. It is not necessary to sell thousands of copies of a work for it to be considered published. So long as copies of a work are made available to the public, the work is "published" for copyright purposes even if no copies are actually sold or otherwise distributed.

1. Notice

In the past, all published works had to contain a copyright notice (the © symbol followed by the publication date and copyright owner's name) to be protected by copyright. This is no longer true. Use of copyright notices is now optional. Even so, it is always a good idea to include a copyright notice on all published works so that potential copiers will be informed of the underlying claim to copyright ownership.

2. Registration

Prompt registration in the U.S. Copyright Office makes your copyright a matter of public record and provides a number of important advantages if it is ever necessary to go to court to enforce it. To register a work you must fill out a registration form and deposit copies of your work with the Copyright Office.

What Copyright Protects

Copyright protects an author's words if and to the extent they are original—that is, not copied from other authors' works. Since the main goal of copyright is to encourage creation of new intellectual and artistic works, it follows that copyright protection extends only to material authors write themselves.

There is also no reason to protect works whose creation is a purely mechanical or clerical act. Protecting works such as phone books or certain blank forms would not help develop the arts and sciences. An author must employ a minimal amount of creativity in creating the work. This does not mean that to be protectible a work has to be a great work of art, but a minimal amount of thought or judgment must have been involved in its creation.

A work need not be entirely new to be protectible. Copyright protects new material an author adds to a previously existing work. For example, copyright protects derivative works. A derivative work is a work that is created by adapting or transforming previously written material into a new work of authorship. Examples include a screenplay or stage play based on a novel, an English translation of a work written in a foreign language and condensed versions of articles (such as those found in Reader's Digest). Copyright can also protect "compilations." These are works in which preexisting materials are selected, coordinated and arranged so that a new work of authorship is created—for example, anthologies or catalogs.

Limitations on Copyright Protection

We've seen that the purpose of copyright is to encourage intellectual and artistic creation. Paradoxically, giving authors too much copyright protection could inhibit rather than enhance creative growth. To avoid this, some important limitations on copyright protection have been developed.

1. Ideas and Facts Are Not Protected

Copyright only protects the words with which a writer expressed facts and ideas. Copyright does not protect the facts or ideas themselves; facts and ideas are free for anyone to use. To give an author a monopoly over the facts and ideas contained in his work would hinder intellectual and artistic progress, not encourage it. For example, imagine how scientific progress would have suffered if Charles Darwin could have prevented anyone else from writing about evolution after he published The Origin of Species.

Because copyright only extends its protection to words rather than the underlying facts and ideas, works in which the particular words used by the author are important and distinctive—such as poems, novels and plays—enjoy the most copyright protection. Works that readers buy primarily for the ideas and facts they contain, not their language, receive less protection. This includes most types of factual works, such as histories, biographies, how-to books, news stories and so forth.

2. Fair Use

To foster the advancement of the arts and sciences, there must be a free flow of information and ideas. If no one could quote from a protected work without the author's permission (which could be withheld or given only upon payment of a permission fee), the free flow of ideas would be stopped dead. To avoid this, a special fair use exception to authors' copyright rights was created. An author is free to copy from a protected work for purposes such as criticism, news reporting, teaching or research so long as the value of the copyrighted work is not diminished.

3. Works in the Public Domain

Any work that is not protected by copyright is said to be in the public domain. This includes works in which the copyright was lost, works in which the copyright expired and works authored or owned by the federal government. Public domain means what it says—such works belong to the public as a whole. Anyone is free to use them any way she wishes without asking anyone's permission. And no one can ever obtain copyright protection for public domain material, no matter how she transforms it. Everything published in the United States before 1923 is now in the public domain, freely available to us all.

Copyright Ownership and Transfer of Ownership

The copyright in a protectible work is initially owned by the work's author or authors. But a person need not actually create the work to be its "author" for copyright purposes. A protectible work written by an employee as part of her job is initially owned by the employer—that is, the employer is considered to be the work's author. Such works are called works made for hire. Works created by nonemployees who sign work-for-hire agreements may also be works made for hire.

Like any other property, a copyright can be bought and sold. This is the way authors other than self-publishers profit from their work. Typically, authors sell their work to publishers for a fee or royalty. However, transfers of copyright ownership are unique in one respect: Authors or their heirs have the right to terminate any transfer of copyright ownership 35 years after it is made.

How Long a Copyright Lasts

Few things in this world last as long as copyright protection. Indeed, an author's work is likely to be long forgotten before her copyright in it expires. The copyright in works created after 1977 by individuals usually lasts for the life of the author plus an additional 70 years. The copyright in works created by employees for their employers lasts for 95 years from the date of publication, or 120 years from the date of creation, whichever occurs first.

The copyright in works created and published during 1923-1963 lasts for 95 years from the date of publication if they were timely renewed. It may be necessary to do some legwork to determine if a renewal was filed for a work. The copyright in works published during 1964-1977 lasts for 95 years regardless of whether a renewal was filed. The copyright in works created but not published before 1978 lasts at least until 70 years after the author dies.

Copyright Infringement

Copyright infringement occurs when a person other than the copyright owner exploits one or more of the copyright owner's exclusive rights without the owner's permission. This type of theft is also commonly termed copyright piracy.

The Copyright Act doesn't prevent copyright infringement from occurring, just as the laws against auto theft do not prevent cars from being stolen. However, the Copyright Act does give authors a legal remedy to use after an infringement has occurred—they may sue the infringer in federal court.

An author who wins an infringement suit can stop any further infringement, get infringing copies destroyed, obtain damages from the infringer—often the amount of any profits obtained from the infringement—and recover other monetary losses. This means in effect that an author can make a copyright pirate restore the author to the same economic position she would have been in had the infringement never occurred. And, in some cases, the copyright owner may even be able to obtain monetary penalties that may far exceed her actual losses.

Other Protections for Intellectual Property

The copyright law is not the only means available to protect products of human intellect that have some economic value. The state and federal trademark laws protect distinctive words, phrases, logos and other symbols that are used to identify products and services in the marketplace. The federal patent law protects new inventions. State trade secret laws may protect novel and generally unknown ideas, processes or technical designs that provide a commercial advantage in the marketplace.

1. Trademarks

The copyright laws do not protect names, titles or short phrases. This is where trademark protection comes in. Under both federal and state laws a manufacturer, merchant or group associated with a product or service can obtain protection for a word, phrase, logo or other symbol used to distinguish that product or service from others. If a competitor uses a protected trademark, the trademark holder can obtain a court injunction and monetary damages.

EXAMPLE: The word "Kleenex" is a registered trademark of the Kimberly-Clark Corporation. None of Kimberly-Clark's competitors can use this word on a box of facial tissues without Kimberly-Clark's consent. If they do, Kimberly-Clark could get a court to order them to stop and could sue for damages.

The trademark laws are often used in conjunction with the copyright law to protect advertising copy. The trademark laws protect the product or service name and any slogans used in the advertising and the copyright laws protect any additional literal expression that the ad contains.

2. Patents

By filing for and obtaining a patent from the U.S. Patent and Trademark Office, an inventor is granted a monopoly on the use and commercial exploitation of her invention for a limited time. A patent may protect the functional features of a machine, process, manufactured item, method of doing business, composition of matter, ornamental design or asexually reproduced plants. A patent also protects new uses for any such items. However, to obtain a patent, the invention must be novel and non-obvious.

EXAMPLE: Mickey invents an entirely new and non-obvious type of mousetrap. He applies for a patent on his invention. If and when it's issued, no one can make, use or sell Mickey's invention without his permission for the term of the patent (20 years from the date the patent application was filed). If they do, Mickey can sue them for patent infringement.

The basic difference between a patent and a copyright is that a patent protects ideas as expressed in an invention, whether a machine or process of some type. Copyright protects only the words an author uses to express an idea, not the idea itself.

EXAMPLE: Mary has invented the widget, a device only dreamed about for decades. She obtains a patent for her invention. She manufactures and sells the widget herself. She also writes and publishes a technical manual, The Widget Owner's Survival Guide. The patent law prevents anyone from manufacturing and selling widgets without Mary's permission. The copyright law prevents anyone from copying the manual without Mary's permission.

Obtaining a patent can be a difficult and timeconsuming process (it usually takes years). See Patent It Yourself, by David Pressman (Nolo), for a detailed discussion.

3. Trade Secrets

A trade secret is information or know-how that is not generally known in the community and that provides its owner with a competitive advantage in the marketplace. The information can be an idea, written words, formula, process or procedure, technical design, list, marketing plan or any other secret that gives the owner an economic advantage.

If a trade secret's owner takes reasonable steps to keep the confidential information or know-how secret, the courts of most states will protect the owner from disclosures of the secret by:

• the owner's employees
• other persons with a duty not to make such disclosures
• industrial spies, and
  competitors who wrongfully acquire the information.

That is, the trade secret's owner may be able to sue the infringer and obtain an injunction and/or damages. However, once information becomes widely known—for example, through publication—it loses its trade secret status and courts will not protect it.

EXAMPLE: Recall that Mary, in the second patent law example above, wrote a training manual for her widget invention. This manual was automatically protected by copyright. If the manual is also kept confidential (Mary only allows her employees to read it and makes them sign agreements to keep it confidential), it may also be entitled to trade secret protection. However, once Mary publishes and distributes the manual widely to the public, any trade secret protection would cease.

Since most authors want their work to be published and as widely read as possible, trade secret laws usually have little application to written works. However, trade secret protection may be important to authors of written works containing competitively advantageous information that has been kept confidential. Trade secret protection is provided only under state law, and varies from state to state. For more information on protecting trade secrets, see Nondisclosure Agreements: Protect Your Trade Secrets & More, by Richard Stim and Stephen Fishman (Nolo).

4. Contract Protection for Ideas

Consider this example: Manny, a TV producer, agrees to pay Sally $10,000 for telling him an idea she has for a new TV show. Sally tells Manny the idea, but he fails to pay. Does Sally have any recourse against Manny?

We know that copyright does not protect ideas, so Sally cannot sue Manny for copyright infringement. Her idea is not for a new invention, so she gets no help from the patent laws. And let's assume the idea is not a trade secret.

All is not lost for Sally, because some courts have held that if a person agrees to pay another person for disclosing an idea she has, the agreement constitutes an enforceable contract. This means that if the person fails to pay what he promised, the person who disclosed her idea may be able to sue and collect the promised payment. This might mean that Sally can sue Manny for breach of contract and collect the $10,000. Some courts would permit Sally the $10,000 only if her idea was novel and concrete and Manny actually used it. Others would not require this. See Nondisclosure Agreements: Protect Your Trade Secrets & More, by Richard Stim and Stephen Fishman (Nolo), Chapter 8, for a detailed discussion of idea protection.

However, there are very few Mannys or Sallys in the real world. Rarely, if ever, will a producer, publisher, editor or other person agree to pay an author for a mere idea. Thus, contract protection for ideas is usually more theoretical than real. The best way to protect your ideas is to disclose them only to people whose integrity can be trusted.

Some Common Copyright Misconceptions

Copyright is a fast-changing area of the law. The copyright laws were completely rewritten in 1978 and major changes were made again in 1989 and 1998. Many people who are unaware of the impact of these changes have ideas about copyright that are no longer true. For example:

• "A work must be registered with the U.S. Copyright Office to be protected by copyright."
• This hasn't been true since 1978. Copyright protection begins automatically the moment a work is set to paper or otherwise fixed in a tangible form.
• "Only works that have a copyright notice on them are protected by copyright."
  Use of copyright notices has been optional since March 1, 1989.
• "No one can use or photocopy a protected work without the owner's permission."
  This has never been true. You can photocopy or otherwise use protected works so long as the use comes within the bounds of fair use—that is, does not diminish the value of the protected work.
• "You can copyright your great ideas."
  This also has never been true. Copyright only protects the expression of an idea, not the idea itself.