Agent Paul S. Levine On: Copyright Basics
Copyright protects the expression of an idea, not the idea itself. For example, the idea of a play or movie where a boy meets a girl, but both sets of parents are against the boy and the girl “getting together” (think “Romeo and Juliet,” but also think “West Side Story”) is not protected by copyright (or by anything else for that matter). Paul S. Levine is the founder of The Paul S. Levine Literary Agency. He is also a copyright lawyer.
Editor's note: I am declaring November 2010 to be "Agent Guest Column Month," and therefore, every weekday, I will be posting a guest column by a literary agent. Day 5: Today's guest agent is Paul S .Levine of The Paul S. Levine Literary Agency.
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Copyright protects the expression of an idea, not the idea itself. For example, the idea of a play or movie where a boy meets a girl, but both sets of parents are against the boy and the girl “getting together” (think “Romeo and Juliet,” but also think “West Side Story”) is not protected by copyright (or by anything else for that matter).
If Shakespeare were alive at the time “West Side Story” was released, he could not have sued the studio or anyone else involved with the movie for copyright infringement, because all that was “taken” from his play is the basic idea of boy meets girl, both sets of parents don't want anything further to happen. If, however, characters, plot, theme, lines of dialogue, settings, etc,, are “taken” from one work and incorporated in another, there might be a claim of copyright infringement.
Because copyright protects the expression of an idea and not the idea itself, book proposals are not protected by copyright—only the actual full-length manuscript of your nonfiction book (e,g. the actual methods for losing weight, and the way you tell people how to do so, and not merely the idea of eating a low-carbohydrate diet) is protected by copyright. So, don’t register your book proposal for copyright, because you’re not gaining anything by doing so. Wait until your manuscript is completely written, and then go ahead and register it for copyright. And remember that the publisher will register it again (on your behalf) once your book is actually published.
A claim for copyright infringement must satisfy two essential “elements” - “access” and “substantial similarity.” The claimant must prove that the infringer had access to his or her work—sometimes no easy task. The “chain of custody” doesn’t have to be direct, however; your giving your manuscript to your Aunt Martha for a quick read, who then decides to give it to her hairdresser, because she just “knows” how much she will enjoy it, who then gives it to … You get the idea. As long as every “link” in the “chain” is established, culminating with the infringer getting your manuscript so that he or she can rip it off, you have proven the element of “access.”
And, even if the claimant proves that infringer had access to the work, the claimant must also prove (i.e. make a judge or jury believe) that the infringing work is substantially (not just somewhat) similar to the claimant's work—that whole scenes, lines of dialogue, characters and character description, etc., are “too close for comfort”—that the similarities are so striking that it is virtually impossible to chalk it up to “mere coincidence.”
Paul S. Levine is a literary agent and entertainment law attorney. Learn more at paulslevinelit.com (lit agency website) and paulslevine.com (attorney website).
