The Magic Bullet:
Q&A for Writers
Posted: August 18, 2006
© Jane Friedman
Q: I would like to know if I could amalgamate two old children's
stories, which are in the Public Domain, into one new tale. The
stories are Hansel & Gretel and Goldilocks & the Three Bears.
I have written the story, but am not sure if it could be published.
-Hartley Hines
A: The short answer is: Yes, you can publish it. For any work in
the public domain, you are free to publish it or creatively manipulate
it without payment to, or permission from, the original author.
Any published or distributed material on which a copyright has expired
is considered to be in the public domain.
If you're ever unsure about whether work has fallen into the public
domain, you can try searching the records of the U.S. Copyright
Office at www.copyright.gov/records.
At the site, you'll find excellent FAQs on determining the copyright
status of a work; you can also pay a modest fee and have the office
conduct a copyright search for you.
Some readers might wonder: What if the two children's stories in
question were not in the public domain? Would the author still be
free to publish his story? Probably not. You may use themes from
copyrighted stories, since themes cannot be copyrighted, but if
you want to use another author's characters (especially characters'
names), which are associated with a particular work in the public
mind, then you're infringing on that author's rights.
Also: While this question doesn't specifically ask about copyright,
you should understand how copyright works so that you know your
own rights and avoid infringing upon others' rights. The first thing
every writer should know about copyright is that it is effective
as soon as you create a work in a tangible form. That means as soon
as you commit a few lines to paper (or screen), it is protected
under U.S. copyright law, even if you don't include a copyright
symbol or register the work with the copyright office.
If you do formally copyright your work through the U.S. Copyright
Office, protection lasts for the rest of your life, plus seventy
years after your death. (For works published prior to 1978, the
term will vary depending on several complicated factors.)
When you sell various rights to your work, this does not affect
your ownership of the copyright. So when a publisher publishes your
book (or a magazine publishes your article), your rights should
not be diminished in any way (unless you've agreed to work-for-hire).
Even if you do sign away specific rights, the law contains termination
provisions that allow you to regain rights assigned to others, after
a specific period.
There have been some interesting developments on the copyright
front, especially as it applies to termination rights. A U.S. district
court recently backed the claims of John Steinbeck's heirs to his
classic works, who want to reclaim publishing rights from Penguin.
Under the Copyright Act, heirs have the right to reclaim publishing
rights during very specific time frames; the judge said that the
act is "designed to protect authors of older works from having
to live with a bad deal they entered into when they had little or
no negotiating power." (An article in the June 19, 2006 issue
of Publishers Weekly gives more detail.)
Many aspiring authors ask: Should I put in the effort and expense
to register my work at the Copyright Office? In general, I advise
authors not to bother. Since your work is copyrighted from the moment
you create it, the existence or validity of your copyright will
not be affected if you don't register the work. You can still bring
a lawsuit against anyone who infringes upon your copyright without
having a formal registration, though you may not be able to collect
as much in damages, and you may have a weaker case. The only situation
in which you do need to worry about registration is when writing
scripts. (See the Writers Guild of America at www.wga.org
for more info.)
Also, keep in mind that if a publisher accepts your work for publication,
a clause in most contracts between publishers and authors sets up
an agreement whereby the publisher takes out the copyright in the
name of the author. The publisher merely handles the paperwork (and
expense) on behalf of the author, and the copyright is the author's
property. If you glance through a few books on your shelf, you'll
find that the author's name, not the publisher's, follows the copyright
symbol.
___
Jane Friedman is an editorial director at F+W
Publications, where she oversees several imprints, including Writer's
Digest Books and Writer's Market Books. She is the author of The
Beginning Writer's Answer Book (Writer's Digest Books, 2006).
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