Consideration and Protection to Avoid Copyright Infringement (Part 3)
Eventually, copyright protection expires, which depends on how long ago the work was originally created. Under current law, works created on or after January 1st, 1978 have protection for the lifespan of the creator plus 70 years post-death. If collaborative, the protection lasts 70 years after the last surviving author’s death.
For pseudonymous works, however, and those anonymously created (“works for hire”) copyright protection lasts 95 years from the publication or 125 years from the original creation, whichever is soonest. But what about works published prior to 1978?
According to the U.S. Copyright Office, “the 1976 Copyright Act retains the system in the previous copyright law—the Copyright Act of 1909—for computing the duration of protection, but with some changes.” For older works in this category, a copyright spanned 28 years from the date the copyright was first secured and could be renewed for a second term of 28 years, and if not renewed, the copyright expired at the end of the first 28-year term, and “the work no longer protected by copyright.” (1, 2)
In all cases, when a copyright expires, work enters the public domain.
“Creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws” are considered in the public domain; they “belong to the public.” (3)
Work can end up in the public domain in one of four ways:
- Expiration of the copyright
- Failure to renew copyright by the owner
- The work is deliberately placed by way of “dedication”
- Copyright law is unable to protect the work
However, while individual works might belong to the public, the work might be protected by copyright when compiled into another published work that is then copyrighted, such as a collection of poems, in which case there is risk of infringing upon a ‘collective works” copyright, or the work might be managed by an estate.
Sherlock Holmes, for example, a character created by Arthur Conan Doyle (1859 to 1930), is quite popular. His character or character likeness has been used in a multitude of fiction and film. He died in 1930, so does that mean his work is in the public domain? Not necessarily.
Doyle’s work is managed by the Conan Doyle Estate, who work with creators from around the world to keep his character alive and portrayed for the foreseeable future as accurately as possible. To use any part of Doyle’s original creation, one must reach out to the estate to first obtain permission.
“Collectively, we give unique access to personal knowledge, archive material and family connections,” so says their website. “Together we reveal the legacy and potential of Arthur Conan Doyle’s endeavours, achievements and fictional characters.” Want to write Sherlock Holmes into a novel? It’s best to reach out for permission to avoid a potential lawsuit. (4)
Other popular writers and poets have similar estates established to protect and extend copyright on their published works long after death, including William Goldman (The Princess Bride, Marathon Man), William Golding (Lord of the Flies), Robert Frost (poet), and Pablo Neruda (poet), so before ever attempting to copy their words, even if suspected in the public domain, do a little research. If widely popular and quotable, it is most likely protected.
Material to Avoid Quoting / Referencing in Written Work
To protect the writer, avoid quoting from the following, unless researched to be in the public domain, or by first obtaining permission (preferably by signed contract) from those who own copyright, either the original creator or their estate:
- Song lyrics
- Quotes from movies / television
- Quotes from fiction / creative nonfiction (novels, memoirs, etc.)
- Quotes from uncited material (without attribution)
- Quotes from unreliable sources (Wikipedia, Pinterest, quote sites)
- Graphs or charts created by others
- Photographs or artwork created by others
- Anything else created by others
There are always exceptions, but always thoroughly research beforehand. For a nonfiction book, for instance, a writer may want to quote a memorable line from a documentary series or nonfictional podcast, or include statistics or data. This is not a problem, as long as it is sourced and cited properly.
Yet a hard “no” exists for what is acceptable to quote in fiction writing, so play it safe.
Legally Acquiring Reprint Rights
“But Stephen King does it, all the time” one might argue. “I read a book in which he quoted song lyrics from the Ramones, and another time he—” Yes, because he is Stephen King. He most likely had his people contact their people and/or paid a lot of money to reproduce words that were not his; or, back when he was getting started, he most likely quoted without permission as many writers did before U.S. Copyright Law was created (or ignored) and his people later went through the trouble to correct such actions in later editions of his books.
“Wait, Michael Bailey, didn’t you include an entire page of text from Fahrenheit 451 by Ray Bradbury in one of your stories?” Yes, but I reached out to the Bradbury estate beforehand to obtain permission, and they requested to read the story before it was ever published to make sure it was indeed an homage and in likeness to Bradbury’s work as proposed. Later, before that same story was reprinted in a collection, I reached out to the estate a second time and they were again generous.
The key is that a contract was agreed upon and signed by both parties prior to the work going into print, and with certain stipulations to protect the copyrighted material, such as proper acknowledgment on the copyright page of the original work that included the protected, reprinted work.
In order to obtain reprint rights to Bradbury’s writing in my short story “Primal Tongue / The Fireman,” permission was legally required, requested, and granted. This is the process to reprint another’s words if not entirely in the public domain or if copyright has been extended.
The Bradbury estate could have asked for a decent chunk of money. They could have also denied the request, leaving me with the option of not including his words or reprinting them without permission, but the latter would have landed me in serious trouble, even though Bradbury’s novel was published 60 years before my story and Ray was no longer alive at the time of publication.
For another short story I wrote years later, “Time Is a Face on the Water,” I wanted to include five memorable words from a Beatles song. Like before, I reached out for permission, as all writers should do, and who owned copyright of the song came to an agreement on their end. They wanted $30,000 for five words and requested a limited print run of 1,000 copies of my work, which didn’t make sense financially. So, I politely declined, and instead wrote a fictitious song from a fictitious band and included those words in the story instead. This begs the question: Was the Beatles song ever needed? No.
Had I tried to go “under the radar” and publish the story without permission, it would have surely cost more than $30,000 in legal fees and fines if those holding the rights to the song (even five simple words strung together, written 50 years prior) decided to sue for copyright infringement.
It should also be noted that some intellectual properties have people (or teams of people) constantly searching for stolen work (it is, in a sense, theft). Disney and Led Zeppelin, for example, both seek and destroy regularly for copyright infringement.
Want to include a lyric from The Lion King? Think twice. Use it to influence the writing, or to suggest theme, but then take it out. If the writing is solid and indeed inspired by the quote(s), that should show clearly through the finished product and render the quote(s) unnecessary.
Before considering to include another’s creation, research what might be needed to obtain rights. It never hurts to ask, and is sometimes as simple as filling out a form on website (run by the deceased’s estate), but plan ahead because obtaining permission takes time. The Bradbury rights, for instance, took three months; the Beatles rights took over a year. And if lucky, as I was in obtaining permission to include a short essay by the late Jack Ketchum for my nonfiction book Writing Righting, it took only a few days.
Is the desired song lyric or poem or string of text even needed? Probably not. It may be wanted by the writer, but most likely will not be needed by the reader.
1. U.S. Congress. United States Code: Copyright Office, 17 U.S.C. §§ 201-216. 1958. Periodical. https://www.loc.gov/item/uscode1958-004017003.
2. U.S. Congress. United States Code: Copyright Office, Copyright Infringement and Remedies, 17. §§ 501-510. 1982. Periodical. https://www.loc.gov/item/uscode1982-007017005.
3. Stim, Richard. Getting Permission: Using & Licensing Copyright-Protected Materials Online & Off. El Segundo, CA: Nolo, 2022.
4. Conan Doyle Estate. Arthur Conan Doyle – Licensing – Official Website of the Sir Arthur Conan Doyle Family Estate. Accessed April 10, 2023. https://conandoyleestate.com.
Michael Bailey is a Senior Editor and the Head of Developmental Editing at Manuscripts, LLC. He is a recipient and nine-time nominee of the Bram Stoker Award, a four-time Shirley Jackson Award nominee, and a multiple recipient of the Benjamin Franklin Award, along with over thirty independent publishing accolades. He has written, edited, and published many books. His latest is Righting Writing, a nonfiction narrative about dedication to the craft. He is also the screenwriter for Madness and Writers: The Untold Truth, a creative documentary series about writers. Find him online at nettirw.com, or on social media @nettirw.