Is Copyright Now Necessary?

Hi Writers,
Wow, I hate to be a buzz-kill over the holidays, but I read an alarming report in Publishers Weekly and thought it was important to share with you: Court Voids Settlement in Tasini v New York Times

Here’s an excerpt:
The Second Circuit Court of Appeals has thown out a settlement between freelance writers and publishers reached after a 2001 Supreme Court ruling that publishers had violated the copyright of freelance writers by using their works in electronic databases without their permission. The 2001 Supreme Court decision was reached in Tasini v. The New York Times, a case involving Jonathan Tasini, then president of the National Writers Union, and five other plaintiffs. The appellate court ruling voids a settlement that created a pool of $18 million that was to be paid out to freelance writers in an associated class-action suit.

In the 2 to 1 decision, the appellate court ruled that only writers who had registered their works with the copyright office were eligible to file claims for damage. Since the overwhelming majority of freelance writers did not register their works, the appellate court reasoned that the courts did not have jurisdiction over the dispute and were wrong to approve the class action suit as well as the subsequent settlement. However, in a dissenting opinion, Chief Judge John M. Walker, argued that registering for a copyright was more of a “claim-processing rule,” rather than a “jurisdictional prerequisite.”

If so inclined, you can read background on the case here: Tasini vs. New York Times.

Also, it currently costs $45 (ouch!) to copyright a manuscript. To learn more about copyright, here’s the U.S. Copyright Office website

Until now, Writer’s Digest hasn’t recommended writers getting their own copyright, since it was deemed both costly and unnecessary. Unfortunately, we may soon have to change that stance.

Here’s my question for you: In light of this new threat to writers’ rights, is it now necessary for writers to get each and every manuscript copyrighted?

Keep Writing,

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11 thoughts on “Is Copyright Now Necessary?

  1. Lori

    Gawd, this is unsettling. It sets a very dangerous precedent, if indeed it isn’t eventually overturned. I would love to know the exact circumstances of the case – that may give some good reason for the ruling, though I cannot fathom what that might be.

  2. Maria Schneider

    Good discussion everyone. Unfortunately, I don’t have all of the answers to your questions right now, but I’m looking into this and will keep you posted. I’m going to consult with lawyers who are familiar with copyright law. Let’s hope this anti-writer ruling gets over-turned.

  3. fernand

    This piece is highly informative. Forward looking writers would say that the registration cost will discourage many people from registering articles. However, the big advantage is that once you have a work(a full lenght manuscript for example) that is circulating among literary agents, publishers and editors, you are advised to undertake the copyright registration in your own interest.

  4. :Donna

    I’m sorry, but this is VERY scary stuff here!

    What I want to know is this: I register my work (a picture book) through the WGAE for a fee of $22 (I believe it was just recently). Doesn’t this count as protection? Granted, having to do that for things like articles, etc. is totally unreasonable.
    : Donna

  5. Cheryl Barker

    Maria, thanks for the discussion on this topic. The cost for copyrighting things like articles and poems would certainly negatively impact those of us writing for smaller markets. I think it would also make it difficult for those smaller markets to find writers as well.

  6. Tom Colvin

    I’m surprised that this decision is not attracting more attention. As I read the decision, it voids all those previous understandings that actual registration was not necessary to protect our work.

    Yes, I agree that any longer work should definitely be copyrighted. But what about magazine articles, pieces that don’t bring in much pay in the first place? To copyright all of those would be expensive indeed for the productive freelance writer.


  7. Greg

    First, let me say this: Writers, you should ALWAYS REGISTER YOUR WORK WITH THE COPYRIGHT OFFICE AT THE LIBRARY OF CONGRESS. THERE ARE NO EXCEPTIONS. NONE. Yeah, it’s $45. But it has ALWAYS been the case that by doing so, you entitle yourself to up to $150,000 in PUNITIVE damages for a copyright violation, in addition to any foregone consideration. What does that mean in plain English? It means that if JoeSchmuck or BigPub steals your work, publishes it, and MAKES NO MONEY on it, he is STILL liable to you for up to $150k, so long as you registered your work. If not, he doesn’t owe you anything because he didn’t profit from your work. The AUTOMATIC protection you enjoy the moment your work is REDUCED TO TANGIBLE FORM (i.e. you type it into a computer or otherwise write it down) will benefit you only if someone steals it and MAKES MONEY on it. Then, you can file a copyright infringement suit and go after the money they made, or at least a good portion of it. One problem: There’s nothing automatic. All intellectual property protection is only as binding as YOUR willingness to defend it. That applies to Trademarks, Copyrights, Patents, etc.

    Tasini is an interesting case. I assume the case was appealed to the 2nd Circuit after a ruling by the STATE Supreme Court. The next step would be to bring it before the Supreme Court. I hope that happens. If I understand this case (and I probably don’t), but it looks very much like the appellate court got it wrong. According to the National Writers Union, the case involved "… charging copyright violation regarding the electronic reuse of work produced and sold on a freelance basis." That electronic reuse most assuredly falls under the definition of a derivative sale. Hence, unless the writer signed away such derivative rights (as one generally has to do in the case of a screenplay, for example), the publisher has NO such right to derivative sale or distribution, electronic or otherwise. One nuance involves a possible confusion in the copyright law between the punitive provisions that inure to the writer who formally registers versus the general protections as outlined above. If the publisher made no money on the electronic distribution, that may have nuanced the case. And I’m not an intellectual property attorney. It would be useful to look at the case law surrounding copyright defense under the premise of foregone consideration. (Viz. they distribute it electronically, they receive no consideration [money] for doing so, but by doing so, they eliminate the writer’s ability to generate further profit from that work.) Interesting. Thanks for bringing this to our attention, Maria!

  8. Sera Phyn

    This is definitely worrying. I’d always heard that something was protected under copyright law as soon as it was in reproducible form. If this has changed then I am going to have to expend a fair amount of money to get legal copyrights for all of my work.

    I hope you keep us updated on any developments in this area!

  9. Kim Switzer

    I hope the writers in question are going to contest this. Here’s a quote from the U.S. Copyright Office website:

    "How to Secure a Copyright
    Copyright Secured Automatically upon Creation

    The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. (See following note.) There are, however, certain definite advantages to registration. See “Copyright Registration.”

    Copyright is secured automatically when the work is created…"

    Here’s a link to that page since there’s more useful info:

    And here’s a link that states that notice of copyright is not required:

    Hope this helps some of your other readers.

  10. Georganna Hancock

    What I’m wondering about is the judge’s assertion that creations must be registered in order to receive protection under copyright law. When did this change? Or is this judge trying to change copyright law? Or have I been deluded all these years and passed on bad info?


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