Copyright for authors can be confusing, but understanding the basics is crucial to protecting your work. As a trademark and copyright attorney — and as a bookworm! — working with authors is one of the best parts of my practice. But there are a lot of things I wish the authors I’m privileged enough to work with knew from the outset of our work together.
Below are the top five things I think all authors should know about copyright and IP — plus a bonus suggestion aimed at avoiding unnecessary headaches.
1. Register your copyrights
Copyright registration is optional for authors, but I highly recommend it. For US works, you need a federal copyright registration to sue for infringement in the United States. As a practical matter, having a registration can deter copying and make online takedowns and other enforcement actions much easier to navigate.
If your publisher has agreed to register your copyrights for you, always check to make sure that they follow through — ideally, get a copy of the registration certificate! If you do not have a registration, you may not be taken seriously if a dispute arises. Additionally, if you are planning to sell film/TV rights to your books, many studios are going to want to see that the work has been registered. As with most federal application experiences, getting help from someone who understands the process and knows the terrain is the way to go.
2. Register early
You can lock in additional useful benefits when you register soon after a book’s publication date. If you register a work super early (i.e., within three months of publication) or, at a minimum, before a work is infringed, you will be able to seek statutory damages and attorneys’ fees if a dispute arises. This affords you greater leverage as it makes it riskier for infringers to fight you.
If you register within five years of publication, you will walk into court with additional presumptions. Specifically, the court will assume that your registration is valid and the representations in your application true and correct, unless and until your opponent can prove otherwise. It is never too late to register your copyrights, but it is a very good idea to register early.
3. You can register without revealing your legal name
You can validly register your copyrights in your pen name — for example, by listing your pen name as both author and claimant. This can impact the duration of your copyright — it will be the shorter of 95 years from publication or 120 years from creation, rather than your lifetime plus 70 years. But you (or your heirs) can adjust this by filing additional paperwork with the Copyright Office down the line.
In short, privacy concerns should not keep you from registering your copyrights.
4. Consider trademark protection
Your name (or pen name) and your series titles may be eligible for registration as trademarks. As with copyright registration, federal trademark registration is optional. However, while copyright registration for books is often a “no-brainer,” trademark registration for aspects of your brand or business is not. In the US, you obtain rights in a trademark simply by using a mark in commerce, but someone with prior rights in a similar mark may have a stronger claim that can trump yours.
Both trademark and copyright registration can meaningfully enhance your rights in very different ways, and each can protect you in different areas. For instance, trademark registrations can be far more useful to combat unauthorized merchandise, fake book listings, or other online shadiness. To avoid legal disputes, you should confer with experienced trademark counsel — ideally, one with experience counseling authors — to ensure that the marks you wish to register are available.
5. Own the assets that are important to your business
You should establish terms of ownership before you begin relationships with other creators. If you hire someone to create assets for you — artwork for covers or giveaways, translations, audio recordings, newsletter content, web content, etc. — all you “own” is a license (i.e., permission) to use what they create unless that creator validly assigns the copyright to you in writing. The scope of that license may not encompass everything you want to do, and an author rarely wants to be beholden to another when it comes to their work.
Bottom line: if you want freedom of control over your work, you need the copyright. And for that, you need either a valid assignment or a written work-for-hire agreement. A knowledgeable IP attorney can help you prepare the right paperwork for the situation.
Bonus tip: Keep your IP organized
If you register your copyrights yourself, pay attention to who you list as “claimant.” I often encounter authors who register differently each time. It’s best to be consistent.
Why? As with any property, knowing who the actual legal owner is can be critical to controlling it, including when it comes to commercialization. Some authors transfer their IP rights to an LLC or other entity that they set up for their business. If they decide to dissolve their entities — often when they move to a new state — and they forget to transfer their IP before dissolution, it can cause problems. Sometimes this is fixable, but only sometimes. It is far better (and way less expensive!) to assign any assets to your new entity before you dissolve the old one. Again, a good IP attorney can help you prepare the right paperwork.
Finally, if you work with a trusts and estates lawyer, make sure they understand how you have organized your IP assets. If your entity owns your IP, that is something they need to know.
Final Notes
Intellectual property is a challenging area of the law, and it is widely misunderstood — even good lawyers can get it wrong! Do not be afraid to ask a qualified professional for guidance. You have likely poured blood, sweat, and tears into your books, and they deserve strong protection.
This blog post is for informational and educational purposes only and does not constitute legal advice. The content is intended to provide general guidance on IP and publishing-related legal topics, but it may not apply to your specific circumstances. Reading this post does not create an attorney-client relationship. For advice tailored to your situation, please consult a qualified publishing or intellectual property attorney.
