Completely hypothetical situation, for a story I’ve been working on and off on.
Say I’ve produced a copyrightable work, in private. The first person I show the work to happens to be a dirty double-crosser, and unbeknown to me she takes a copy and she publicly bills it as her own, before I have a chance to show it to anyone else or get the copyright registered. I have no proof other than my own word that it’s my work.
I’m thinking of two possible variants of the situation. In both of these, I’m blissfully unaware that she’s stolen from me until weeks or months later, after I’ve registered my copyright and I’m busy releasing the work.
[ol]
[li]I beat the thief to the copyright office (but a significant number of people saw her bill the work as her own before I mailed it in)[/li][li]The thief beats me to the copyright office, so she not only has public opinion, but the weight of copyright law on her side.[/li][/ol]
Who is likely to prevail in any resulting lawsuits in those two scenarios? What’s a lawyer likely to tell me or tell her even before a suit gets filed in either direction?
What’s likely to happen at the U.S. copyright office if two people try to register the same or incredibly similar works? Is there any kind of search done when someone registers a work to see if it’s already been registered before? Have things changed over the last few decades? My story is tentatively set in the early-mid 70s, and may have “deja vu” segments set in the 80s and 00s.
There were a couple major changes to U.S. copyright law, in 1978, and the Berne Convention was ratified in 1988. Does the situation change depending on exactly when the story is set?
Do the answers to any of the above change depending on the type of work?
IANAL, but as a publisher, I’ve had a fair amount of experience with copyright law.
Unlike patents and trademarks, which are examined and evaluated by their respective government offices, copyright registration is essentially an automatic process: the Copyright Office merely certifies that it received your document on a given date, and sends you a certificate to that effect. Registration of copyright is not legally necessary, but it does allow for substantial statutory penalties ($150,000 per violation, IIRC) when infringement is proven in court.
However, the Copyright Office makes no attempt to check an application against previously registered documents. And considering the millions, nay, billions, of copyrighted documents on record, no such procedure would be feasible, even if all copyrighted documents were fully digitized. Needless to say, the vast majority are not.
So in the situation you posit, the outcome would have to be determined by a civil suit. One party would have to sue the other for infringement and each would then present evidence in court that they had created the work.
Since I’m not a lawyer, I can’t say how such a suit would be conducted or what strategies would be likely to succeed. Presumably, the holder of the official registration would have the strongest prima facie case. But obviously, much would depend on the specific facts of the case.
No doubt one of our resident Doper lawyers will be along soon to advise you on those issues.
You don’t have to register something with the copyright office to claim a copyright. All you have to do is be the author of the work. If someone else steals your work and registers the copyright first, you can still fight it by proving you were the original author.
The problem is that the assumption of a copyright goes with the person who registered the work. If you want to dispute the claim, you would have to show strong evidence that the person who registe the work isn’t the actual author. For example, it was published under your name in an obscure magazine before the thief filed the copyright claim, or that you have a letter from the thief saying “That sounds like an interesting story. Why don’t you mail it to me, so I can give you some pointers about getting it published?”
It would be tougher fighting the copyright infringement if you wrote the work in a secret journal, never told anyone about it, and somehow the thief finds your journal and claims your work as their own.
If they didn’t have a journal, but had previous works could it be considered good enough evidence if someone could pose that the writing style/narrative devices/etc are much closer to A’s than B’s (aren’t there people who specialize in that sort of comparison, mostly for trying to figure out which dead author wrote which anonymous work)?
It seems shaky to me, but I’m still curious whether it’s even technically possible.
Everything you write is automatically copyrighted the moment it exists under current law. The copyright notice had to be affixed on works published up to March 1, 1989, but that has not been true since.
Registration is a different process. What registration does is provide a time stamp of proof of creation, gives you the ability to file a lawsuit, and allows you statutory damages. Registration does not have to be done at the moment of creation, but there are limits as to how long you can wait and still make your case.
These regulations have changed repeatedly since the 1970s. A pdf document called Copyright basics gives a summary of earlier conditions.
Almost no cases ever go to court, unless millions of dollars are at stake, so the case files are few and irregular. Nobody knows who would win anything until a case goes to court (although the suits against famous authors like J. K. Rowling and Dan Brown were so nutso that nobody thought they had a chance). The exact particulars of any case will determine what the verdict is. Intellectual property lawyers will never say anything that comes remotely close to a definitive statement on a general question like this. I know. I’ve dealt with them.
Basically, cases like the one in the OP don’t exist in the court record. I don’t know what circumstances you’re thinking of that would cause someone to spend hundreds of thousands if not millions of dollars on this, but if you’re dealing with a manuscript that becomes a best seller the lawyers will spend years arguing over things you never dreamed were important.
I’m afraid you have two choices.
Write the sort of nonsense law that you see on television.
Write about something you have a better chance of researching a real answer to.