Are you the next William Shakespeare, Sylvia Plath, Walt Whitman, Edgar Allan Poe, Maya Angelou? Do you want to protect the fruits of your literary, poetic, creative labour? Read on.
Copyright law protects creative works including literary works (i.e. any work that is written, spoken or sung) such as poetry.
The good news for budding poets is that, unlike other intellectual property rights such as patents and trade marks, no application, filing or registration is necessary to secure ownership of copyright in your poetry.
Instead, copyright law provides that copyright arises automatically from the moment of creation, and vests (i.e. is owned by) the author or creator of the copyright work. Therefore, the first and most important step, when it comes to protecting the copyright in your poetry, is to prove that you actually wrote/create the poetry and to retain a written record of the creation.
In the old days, the advice used to be to sign and date your poetry in your own handwriting and post it to yourself in a sealed envelope. The logic was that if you were ever called upon to prove that you wrote your poetry on or before a particular date, a signed and dated copy of the poetry in a sealed envelope with a dated postmark would provide good evidence.
These days, the advice is usually to reduce your poetry to writing in a digital/electronic document (e.g. a Microsoft Word document or a PDF document), incorporating your name/signature, the date and a copyright notices (e.g. © Copyright Joe Poet 2022. All Rights Reserved.), and email it to yourself and/or save a copy in the cloud (e.g. your Gmail, Google Drive or Dropbox account). The logic is that digital/electronic documents are digitally dated and email/cloud storage providers digitally date documents and emails (which, again, provides good evidence if you are ever called upon to prove that your wrote your poetry on or before a particular date).
The presence or absence of the copyright notice referenced above, does not impact copyright protection (i.e. copyright protection will not be lost, gained, improved or disimproved by applying or not applying the copyright notice). However, by applying the copyright notice, you ‘assert’ copyright ownership and put the public on notice that your poetry is a work protected by copyright, and that you are the copyright owner.
There are exceptions to copyright vesting automatically in the author or creator of a copyright work. The first exception is where the author is an employee acting in the course of their employment, in which case the employer automatically owns the copyright instead of the employee. Another exception is where the default position is reversed or modified by a contract entered into between the author and a third party. For example, if a third party commissions a poet to author a poem, and the parties enter into a commissioning agreement in advance stating that the commissioner will own the copyright in the poetry, then the commissioner and not the poet will own the copyright.
Understanding what copyright protects is as important as understanding what copyright does not protect.
For example, copyright does not protection mere concepts or ideas. Therefore, if you disclose the idea underlying your intended poetry to a third party, but never actually reduce your poetry to writing, copyright will not help you if that third party takes/uses your idea. This is because copyright protects the expression or fixation of an idea, but not the idea itself. In the scenario described above, if you want to prevent a third party from taking/using a confidential idea that you have disclosed to them the best course of action is: (a) not to disclose the idea in the first place; or (b) if you must disclose the idea (e.g. to a commissioner or a publisher), enter into a written non-disclosure agreement in advance (in which case, the law of confidence and the law of contract is protecting you, rather than the law of copyright).
Second, copyright may not enable you to prevent a third party from using the mere title of your poetry and/or mere snippets from your poetry. This is because copyright may not protect very short literary works (e.g. titles comprised of a few sentences) and/or short excerpts from literary works (e.g. short quotations). In addition, there are a number of ‘fair dealing’ and/or ‘fair use’ defences/exceptions to copyright protection which allow third parties to use copyright works without permission (e.g. for criticism or review, for caricature, parody or pastiche etc.). If there are key aspects/sentences of your poetry that you are determined to protect (e.g. the title or a particular phrase), it may be possible to register that title or phrase as a trade mark (in which case, as above, trade mark law is protecting you, rather than copyright law).
After you have identified that poetry that you want to protect, and after you have taken the steps necessary to protect copyright (i.e. maintaining records of your work and entering into a contract if applicable), the next step is to consider how to commercialise your copyright and/or enforce your copyright should you need to do so.
Copyright is usually commercialised by assigning/selling your copyright (i.e. transferring full ownership of your copyright to someone else for money) or by licensing/granting rights in your copyright (i.e. retaining ownership of your copyright, but authorizing someone else to use it; usually subject to certain conditions or restrictions). The most common type of licence in the context of poetry is a publishing agreement (i.e. you grant a publisher the right to reproduce, publish and distribute your poetry, and the profits generated by the sale of your published work are shared between the author and the publisher).
Copyright can be enforced in a number of ways. If your poetry is reproduced, distributed or performed online without your permission, it may be possible to issue a ‘take down’ notice via the online platform on which your poetry has been posted (e.g. Amazon, Facebook, Twitter, Instagram, YouTube etc.). If you do not get satisfaction by making a complaint to the platform, and/or if the infringement does not take place online, the first step is usually to send an informal notice to the infringer putting them on notice of your copyright ownership and asking for the infringement to stop. If the informal notice does not do the trick, the next steps is usually to send a formal cease and desist letter or letter before action to the infringer, setting out the details of your infringement claim, and putting the infringer on notice that unless the infringement stops and/or you receive appropriate compensation and/or an appropriate explanation/defence within a short period of time (usually 14 days) court proceedings will follow.
In many cases, that formal cease and desist letter will be sufficient to bring the matter to a close, so it is always worth asserting your rights, even if you think that would not have the funds and/or the appetite to issue a court claim. If that first cease and desist letter doesn’t do the trick, it may still be possible to achieve a good outcome by applying pressure (e.g. sending a further letter or sending court papers in draft form) and/or by ultimately issuing a claim. Therefore, it is always worth taking advice from a copyright/IP expert as early as possible to ensure that you follow the correct procedure and avoid any missteps.
Briffa are experts in all aspects of copyright law and practice. If you have a question or concern about the protection, commercial and/or enforcement of your copyright, please get in touch to arrange a free consultation.
Written by Éamon Chawke – Partner
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