What are the guidelines for using copyrighted material in my own title?

In the last blog post we discussed the basic legalities involved in protecting your work with a copyright, and I hope that you are now comfortable knowing that your title is safe and sound.

However, copyright is a two-way street. Just as we expect others to honor our copyrights, we must honor theirs too. So, let’s stop and ask ourselves whether our writing is free of copyright infringement.

Four Questions

What does the law have to say about these common publishing scenarios?

1. Can you publish your rabbi’s best speeches without his permission?

2. Can you publish a cookbook of your favorite recipes collected from your best friends and family over the course of the past 50 years without their permission?

3. Can you publish a book about the war between Gog and Magog and call it The War of the Worlds, or is the title copyrighted by H. G. Wells or his publisher?

4. Can you download a photo from iStock or Wikimedia Commons and use it on the cover of your book?

Let’s quickly cover the basic legal parameters of “borrowing” others’ material so that we can enter the publishing world with a clear conscience and without fear of facing a lawsuit. Once again, I want to make a disclaimer that you should not rely on the details of this blog post as legal advice. They are only intended to serve as a reference point for further research.

Can It Be Copyrighted?

The first question we should ask is whether the material we wish to make use of is actually copyrighted. A lot of people would like to claim that they own the intellectual property rights of a work (and they’ll insert a copyright symbol to impress the point upon you) so that they can reap all the profits themselves, but in actuality they may not have any rights at all.

Here are some common examples of publishing items that cannot be copyrighted.

Public Domain

Material that cannot be copyrighted is said to be in the “public domain.” Contrary to the way that sounds, public domain does not refer to material found freely on the internet, where copyright works just like for printed material. Works in the public domain are either not eligible for copyright, as we will explain, or have had their copyrights expire. (Follow this link for more details about when a copyright expires.)

Names and Titles

Believe it or not, names of fictional characters and titles of books cannot be copyrighted. One reason for this is that only a significantly creative concept can be copyrighted, and names and titles don’t fall under that criteria. If you really want to retain exclusive rights to these things, you might be able to register your character or title as a trademark, but that is another discussion altogether.

The upside of this is that if you really like your title, you don’t have to worry that it has already been taken. It won’t get you into trouble with the law. Nevertheless, it might not be such a good idea to use an already well-known title, because it could lead to confusion or complaints of misrepresentation. Before you publish, it’s best to run a search for your preferred title on Amazon Books to see if it has already been taken.

Ideas

Can you write a book about a boy who goes to wizard school, or is that concept copyrighted? The answer is that neither J. K. Rowling nor her publisher, Bloomsbury Publishing, can copyright such an idea. Not only that, but I am sure she wasn’t the first to write about that idea herself! On the other hand, what they can copyright is the tangible medium of their specific idea, namely their books and paraphernalia, including the characters of Harry Potter and his friends.

In the words of the US Copyright Office: “Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.”

Creative Commons License

There is yet another instance when you are allowed to use others’ material freely, and that is when the author publishes his work with a Creative Commons license. In the words of Wikipedia, which operates under such a license: “A Creative Commons (CC) license is one of several public copyright licenses that enable the free distribution of an otherwise copyrighted work. A CC license is used when an author wants to give people the right to share, use, and build upon a work that they have created. CC provides an author flexibility (for example, they might choose to allow only non-commercial uses of their own work) and protects the people who use or redistribute an author’s work from concerns of copyright infringement as long as they abide by the conditions that are specified in the license by which the author distributes the work.”

Royalty-Free Images

Many websites offer “royalty-free images” – some are literally free downloads, while others can be purchased but don’t require the payment of any royalties for their use. The impression one gets is that after downloading the image it is yours to do with as you wish . . . but sometimes there are a few strings attached.

In general, the licenses associated with these images do grant full permission to use the image as you wish. However, in some cases you’re required to credit the source – either the website or the creator of the image; some licenses do not permit altering the image; and mass printing a book featuring an image might require a special extended license. These conditions usually do not interfere with the way you’d use an image in a regular book, but it is certainly worthwhile to carefully read the license that comes with your chosen image before sending your book to the printer just to be sure you aren’t overstepping your rights.

Answers to Our Questions

Now that we have covered the basics of what is included in a copyright – and what is not included, we can address our original four questions.

1. Yes, you are allowed to publish your rabbi’s best speeches without his prior consent. The reason is that these are merely ideas, and the first person to commit them to a tangible medium becomes the copyright holder. (But your rabbi might stop talking to you!)

2. Yes, you can publish a collection of other people’s recipes without their permission, because those, too, are just ideas. The US Copyright Office writes: “A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection.”

3. Yes, you can use the title The War of the Worlds – for two reasons. First, there is no copyright on book titles. Second, the book itself is now in the public domain because the copyright has expired. You can even copy and publish it yourself for profit (and people are doing it).

4. You can definitely use downloaded images from iStock or Wikimedia Commons for your book cover, but check the licenses for any limitations or conditions.

 

As part of JewishSelfPublishing’s services, we advise our authors on how to approach specific copyright issues. In general, we feel that it is not in the author’s best interest to risk violating another author’s or publisher’s copyright. Aside from the possible financial damage and the hassle involved in dealing with legal challenges, we prefer to abide by the Golden Rule.

The next blog post will complete this series on copyright by explaining the principle of fair use.