Thursday, September 10, 2009

Phillips Provides Copyright Basics for Writers

AT FCCW we have many members in different stages of the publishing journey.  We have many beginners as well as many accomplished authors. 

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Our latest speaker J. Winston Phillips, a retired physician, is currently working on two novels. The first, Making the South Beautiful One Procedure at a Time; Recollections of a Southern Plastic Surgeon, is told through the eyes of his main character, Bocephus Beauregard Beaumont, IV, MD as he recounts his life as a Plastic Surgeon in the fashionable Buckhead District of Atlanta, GA. His second novel, a medical-legal international thriller deals with human cloning and the legal issues surrounding the cloned individual.

Dr. Phillips has an extensive educational background which has contributed to his wide and varied interests both in fiction and in the business world. In addition, to an M.D. from the University of Louisville, Dr. Phillips also has an M.B.A. from Jacksonville University, a J.D. from Florida Coastal School of Law and LL.M. from Thomas Jefferson School of Law. While in law school Dr. Phillips took an upper level course in Intellectual Property, dealing in depth with copyrights and trademarks. It is this specific knowledge which is useful to the writer in protecting his writings.  Dr. Phillips hopes to educate doctors and writers with all his extension and knowledge in the field of law and business. It is this training that he shared with us.

A Copyright is a form of protection provided to authors of original works of authorship fixed in any tangible medium of expression which can be perceived, reproduced, or otherwise communicated directly or with the aid of a machine or device.

The U.S. Constitution, Article I, Section 8, clause 8 provided Congress with the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their Respective Writing and Discoveries. In addition, clause 3 provided Congress with the additional power to regulate Commerce among the several states.

The Copyright Act of 1909 provided for a dual system of copyright protection. Unpublished works were protected by common law (state law), while published works were granted federal protection upon publication as long as copyright notice was in the 1) correct form, 2) correct place, and 3) on all copies of the work. Otherwise, copyright protection would be lost.

The Copyright Act of 1976 did away with the dual system of protection. Fixation in a tangible medium of expression, rather than publication denoted the time when Federal rights attached. The Act retained mandatory notice requirements for copyright.

The Berne Convention Amendment, effective March 1, 1989, eliminated the notice requirements to comply with the Convention. However, Act provided that if proper notice was attached, defendant could not claim innocent infringement in infringement case.

Copyright protects the following categories; 1) literary works, 2), musical works, 3) dramatic works, 4) pantomimes and choreographic works, 5) pictorial, graphic, and sculptural works, 6) motion pictures, and 7) architectural works.

Copyright does not protect works that have not been fixed in a tangible form of expression. In addition copyright does not protect titles, names, short phrases, slogans, ideas, works consisting of information that is common property and containing no original authorship and scenes a faire.

Copyright owners have the following exclusive rights; 1) to reproduce the work in copies or phonorecords, 2) to prepare derivative works based on the work (e.g. screenplays, translation into another language), 3) to distribute copies of the work to the public by sale or other transfer of ownership, 4) to perform the works publicly, 5) to display the works public ally, and 6) in the case of sound recordings, to perform the work public ally by means of a digital audio transmission.

As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. Joint works protection last for the life of the last surviving author plus 70 years. Anonymous works, pseudonymous works and works made for hire enjoy copyright protection for 95 years from first publication or 120 years from the year of first creation.

Copyright ownership rights can be assigned or transferred individually or in combination with other rights. Portions of an individual right can be transferred, e.g. assignment of right to perform work in New York City only while retaining rights to perform work all other locations.

Copyright protection is secured automatically when the work is created when the work is fixed in a copy or phonorecord for the first time. Although not required, one may place people on notice by placing on copies of the work the following three elements; 1) the symbol ©, or the word Copyright, or the abbreviation Copr., 2) the year of the first publication of the work, and 3) the name of the owner of the copyright in the work.

© 2009 J. Winston Phillips

Although the work is copyrighted when created and fixed, you are not able to bring an infringement suit in federal court unless you work is registered. Additionally, registration establishes a public record of the copyright claim.

Registration of a copyright is relatively simple and inexpensive. The website,, provides the necessary instructions for submission. Requirements include a completed application fee, a non-refundable filing fee of thirty-five dollars if filing online, and one complete copy of the work being registered if it is unpublished or two complete copies of the best edition of the work if it has been published.

by Tracy Redman
FCCW Treasurer

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