We Connect The Dots So You Don’t Have To

March 21st, 2005 · 2 Comments
by Booksquare

Much as we love Edward Wyatt (and we do), we cannot help but leave his story about Glynn Wilson dropping his case against Kitty Kelley, et al, without a few questions. Maybe it’s because we don’t get it (we are admittedly slow, but that isn’t a crime, necessarily). Let us begin by noting that the Kansas City Star story (first link) suggests that the judge was about to rule that copyright law didn’t cover the story on the Internet; Wyatt’s story (second link) notes that, because the way the law is written, Wilson’s ability to recover damages was limited because he did not file a formal copyright registration. We believe Wyatt’s assertion is correct.

Then Wilson is quoted (Kansas City) as saying such a ruling would erode protections for Internet based writers — this is a rather interesting assertion and Wyatt, our darling Wyatt of The New York Times, doesn’t help clarify:

The writer, Glynn Wilson of Birmingham, Ala., said yesterday that he had decided to withdraw the copyright infringement suit, which had been filed in Federal District Court in Birmingham, after realizing that he was likely to lose because he had failed to register his copyright with the United States Copyright Office.

Under federal law, if a copyright holder fails to register with the office before an alleged infringement takes place, the holder is limited in the damages and lawyer’s fees he can recover.

This is where we admit we don’t fully understand things. Paragraph one: Wilson would lose because he failed to register is work with the copyright office. Paragraph two: Wilson’s ability to recover damages would be limited, but, ostensibly, not denied. This, to our mind, does not necessarily lead to “losing” a case, but it does make things somewhat sticky, if moeny and such is your goal. Wilson could recover minimal damages by following proper channels. This does not deny the plagiarism case.

Both articles seem to be lacking basic, helpful information, like, for example, how A = B. First, we start with this statement from the American Society of Journalists and Authors:

As a freelance writer, unless you’ve signed a work-made-for-hire agreement or otherwise transferred copyright, what you write belongs to you. You need not put a little “c” in a circle on it. You need not register it with the Copyright Office. The work need not even be published for your copyright to take effect. The copyright is yours immediately. If your work appears in a periodical, the publisher owns the copyright in the entire issue as a collective work, but not in your individual work. The publisher may print a little © with its company name and file the issue with the Copyright Office, but its protection covers the issue as an issue, not the articles within. The copyright in your writing is yours unless and until, induced by cash or cowed by threats, you sign it away.

The ASJA goes on to say:

Under the law, if your copyright is infringed, you can’t sue unless the work has been registered with the U.S. Copyright Office. You can, of course, wait until there’s a problem before you bother filing a registration application. But there’s a good reason to file as a matter of routine. [we recommend following the link and reading this article for more on the good reason]

Perhaps it would be better to say (and this goes for both newspapers) that Wilson did not properly register his copyright in a timely manner, and, as with all authors (not just Internet-based writers), was limited under current copyright law. It appears that someone, somewhere along the line, filed in the wrong court. It also appears that Wilson didn’t help himself by failing to register his copyright. The ASJA site offers some helpful advice on this matter — we’ve said it before and we’ll say it again: ignorance is no excuse. You need to understand your business…even if your business is art.

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2 responses so far ↓

  • Bill Lindsley // Mar 23, 2005 at 7:29 am

    I concur that the articles raise many questions. While “actual damages” are usually not much and difficult to prove, for this kind of book, with revenues in the millions, and particularly for material allegedly used in the promotional materials, it seems like they would be substantial, perhaps more than the statutory damages available if the copyright was timely registered prior to the infringement. I suspect the case was either weak on the merits or Wilson failed to register before filing the lawsuit. None of the articles are clear in this regard. The suggestion that the court was poised to make a ruling that would have a broad, negative impact on authors of Internet content is disconcerting, but I doubt there is cause for panic. Something else had to be going on here.

  • Booksquare // Mar 23, 2005 at 10:02 am

    Yes, agreed that actual damages, if awarded, would have been substantial. By all accounts (that I can find), Wilson failed to register his copyright in a timely manner, and therefore filed in the wrong court (that’s some bad lawyering or advice somewhere). However, the actual merits of the case (the alleged plagiarism) would not have been changed if he’d proceeded in the correct court. All that would have changed would have been the money.

    This leads me to conclude, as you have, that something else was going on.