MYOB: Little legal things for writers

A little bit of legal know-how can go a long way in securing your interests as a professional writer. Whether you’re an author, a journalist, a freelance writer, a blogger, a lyricist, a screenplay/script writer, a dramatist or an academic writer, there are a few legal pointers worth remembering in order to keep doing what you do best, without having to worry about compromising important legal and business principles.

As a writer what legal right do I have over my work? 

This photo was shared under a Creative Commons Attribution License and was taken from the Flickr photostream
This photo was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of  mrsdkrebs

 

As a writer, you’re in luck because the nature of your creation (the fact that it has to be written/type i.e expressed in a tangible format that can be read) works in your favour. Your original literary work is eligible for copyright protection the moment it has been expressed in some kind of tangible medium. This means that you have a legitimate copyright over that note or essay you’ve written once you’ve put it down on paper. A huge misconception surrounding copyright is that you need a formal registration before being able to claim it. This is not true – automatic registration of a copyright over any creation of yours occurs once you can show that it is (1) original and (2) expressed and fixed in a tangible medium. You can learn more about the basics of Copyright law and how it works here. You can learn more about what is meant by originality in the context of copyright law here.

So what if I have a great pitch for a story or screenplay? 

There are two important parts to answering this question – (a) what if you have an idea that is yet to be expressed or written down? (b) what if you have a concept note or a brief plot summary?

(a)   Pitching an idea: A lot of the times in the publishing and entertainment world, you might have to discuss your idea with a bunch of investors and publishers before actually submitting a written manuscript to them. The thing to remember when you’re pitching or discussing an idea, is that your idea is not copyrightable. In accordance with Copyright law, ideas are not protectable. You can learn more about why that is here. Only the expression of such an idea is eligible for copyright protection. In a meeting where you have to pitch your idea, copyright law may not come to your rescue but you can use a Non-Disclosure Agreement or an NDA instead. The NDA basically protects your interests by making it clear to you as well as the person/company you’re meeting that all information discussed in your meeting will be considered confidential and cannot be disclosed publicly without your permission.

(b)  Concept note or brief: With a note, you’re obviously in a better situation since you have expressed your idea in a tangible format. In such a situation, the degree to which your concept has been fleshed out would be important in determining whether the content of your concept note is eligible for copyright protection. The copyright of concept notes and written pitches in India was discussed by the Bombay High Court in its 2008 decision in Zee Entertainment Enterprises Ltd v. Gajendra Singh.

Is it okay for me to work out a plot based on a real incident? 

When you write a story or a literary work that is based on a real incident, you are not violating any copyright. Newspaper stories and factual incidents fall into what is known as the Public Domain and are accessible to anyone and everyone. You can read more about the Public Domain here.

What happens when I write a fictional or non-fictional piece that refers to a real person, place or product? 

While writing a piece that refers back to a real person it is important to have taken that person’s prior permission. Failing to do so can amount to you violating that person’s right to privacy, that person’s Publicity Right or if you happen to say something negative about the person, then you face the added challenge of possibly being sued for defamation. All these are pretty serious grounds for litigation – particularly defamation, which is both a civil and criminal wrong in India.

If you’re setting your fictional story in a real place or you’ve incorporated a real product then it’s wise to ensure that you’ve added a disclaimer at the beginning of your manuscript or blog post letting people know that all references you make to the place or product or purely incidental and not meant to influence reader’s opinions on either the place or product. This however may not be enough to save you from a backlash from the company if you’ve shown their product in poor light. This is probably why it’s always better to use fictional names.

Can I protect fictional characters? 

It is theoretically possible to claim a copyright over a fictional character so long as you can show that the character is delineated and helps you tell the story by playing a substantial role in the plot. At the same time, the more visually distinct your character is (either through an illustration or a very detailed description of the character’s physical attributes), the better are your chances at showing that your character is more expression, and less idea. You can learn more about characters and copyright here.

Tell me more about plagiarism and safe copying? 

Sometimes, you might incorporate elements or extracts from a pre-existing literary work or lyrical content of a song. This does not always count as copyright infringement. If you make a parody or use content like a quote etc. to substantiate your own work, this does not count as copying but arguably falls under what is known as Fair use or Fair dealing. The fair dealing exception in India is a lot narrower that the Fair use exception in American law, however the essence of the fair use/dealing exception is to ensure that a creator of content can rely on other copyrighted works and take without permission so long as this new content is transformative in nature and socially beneficial. You can learn more about Fair dealing or fair use here. You can also expect a dedicated post on fair use and writing in the near future.

If you happen to be using content that is already in public domain, then you don’t have anything to worry about – for instance, you can use lines from any of Shakespeare’s dramatic works, in your story, screenplay or blog post without having to think about asking his heirs for permission.

And what about stories or screenplays that share similar plot lines?

Similar plot lines are not a problem – lifting specific expression however is. Three screenplays that revolve around the basic plot of a feuding family, star crossed lovers and their untimely deaths are not violating each other’s rights. However if Screenplay 2 and 3 have characters or dialogues identical to those in Screenplay 1 it is safe to presume that the writers of Screenplay 2 and 3 are going to be in big trouble on the grounds of copyright infringement.

Stories belonging to a genre – like say scary stories, murder mysteries or love stories may have certain stock elements and characters that are too generic to be attributed to any one source. The thing to remember again is that the more detailed and distinct your plot or characters, the more effective will be your claim for copyright.

 

This photo was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of Cambodia4kidsorg
This photo was shared under a Creative Commons Attribution License and was taken from the Flickr photo stream of Cambodia4kidsorg

 

 

So in a nutshell, what do I need to know as a writer?

When writing, it’s important to stay mindful of the possibility of defamation or unlicensed/unauthorized usage of other’s original content. If you want to reproduce lyrical content or someone else’s literary work, take permission and get the appropriate licensing. Fair use or fair dealing is a great exception however proving it is hard and so it’s good to never solely rely on fair dealing alone to escape infringement. Finally, if you’re entering into a publishing agreement or a work-for-hire situation, be mindful of your contract’s terms so as to ensure you’re aware of what you get to keep and what you have to give up.

This post was a brief overview of a few legal pointers useful to writers. If there’s something specific you’d like to learn more about let us know in a comment and do tell us if you found this post helpful.

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