Do I need to copyright?

Someone I barely knew — the on-again, off-again girlfriend of the brother of a friend of mine, which is as fine a definition of a casual acquaintance as I’ve ever heard — called me the other day, full of questions about a very common brand-new writer terror. She had written a short piece — an essay, really — and had, through sheer persistence and the rare strategy of actually LISTENING to the advice she had been given by published writers of her acquaintance, gotten the publisher of a small press to agree to take a look at it. In mid-celebration for this quite significant achievement, she experienced a qualm: what if this guy stole her ideas, or her entire work? Who would believe her? And how could she ever prove that she had come up with it first?

Half of her friends laughed at her, saying that she was being paranoid and unreasonable; the other half told her, in all seriousness, that she should go through the arduous process of copyrighting what she had written before she e-mailed it to the guy. Confused, she did something very sensible: she called me and asked what to do.

As Gore Vidal is fond of saying, there is no earthly problem that could not be solved if only everyone would do exactly as I advise.

The problem was, all of her friends were partially right: the vast majority of reputable publishing houses would never dream of stealing your material, and yet, as in any other business, there are always a few cads. At most writers’ conferences, you will hear speakers scoff at the possibility, but anyone who has been in the writing and editing biz for any length of time knows someone with a horror story. Better safe than sorry, as our great-grandmothers used to stitch painstakingly onto samplers.

I should reiterate, though, that outright theft is rare. The single best thing you can do to protect yourself is to deal with reputable agents, editors, and publishing houses. The problem is, you can’t always tell. The Internet, while considerably easing the process of finding agents and small publishers hungry for new work, also renders it hard to tell who is on the up-and-up. A charlatan’s website can look just like Honest Abe’s. Agencies and little publishers go in and out of business so swiftly that there isn’t time for them to get listed in the standard guides — yet start-ups are often the ones most accepting of first-time authors.

So let’s say you did get involved with someone unscrupulous — what’s the worst that could happen? Usually, a premise or plot is what gets stolen, rather than the actual text itself — and this is legally tricky, since what is copyrightable is not the idea or the story, but the PRESENTATION of it. This legal ambiguity is the reason that, very sensibly, the screenwriters’ guild simply advises its members to register every draft of their screenplays with the guild before the ink dries from the printer. Other writers, however, do not enjoy the luxury of this kind of protection.

Copyrighting an individual work, however, is a long, tedious, and can be an expensive proposition; if you can, it’s best left to your publishers to handle. You don’t really need to spend the money to do it yourself, if you resort to the standard protective practice of former days, what used to be called the Poor Man’s Copyright. It is dirt-cheap and it has for decades stood up in court as proof that the original author was in fact the original author.

Here’s how to do a Poor Man’s Copyright — and no, Virginia, it’s NOT an actual copyright; it is merely a means of proving what you wrote when. Print up a full copy of your manuscript; if it is too long to fit comfortably in a standard Manila folder, break it up into chapters. Place it (or the chapter) into a Manila folder. Seal the folder, then sign across the seal, the way professors do with letters of recommendation. This will make it quite apparent if the seal is broken. Then, take clear adhesive tape and place it over your signature and the seal. Address the envelope to yourself, then mail it. When it arrives, DO NOT OPEN IT; store it in a safe place. Should you ever need to prove that you had written a work before someone else did, the postmark and the unbroken seal (let the judge be the one to open it) will be ample proof of your contention.

Repeat for every significantly revised draft — because, as I mentioned above, it is the PRESENTATION of the concept that you can claim as your own, not the story itself. There’s no need to go crazy and mail yourself a new version every time you change a comma, but a complete revision definitely deserves a new mailing.

You can also protect yourself by checking out agents with the AAR (Association of Authors’ Representatives) and WGA (Writers’ Guild of America), both of whom sponsor websites. Not all agents are members of one or the other, but if there have been complaints in the past, these groups should be able to tell you.

You can also protect yourself by avoiding sending ANY of your original material by e-mail. Yes, a lot of agents now prefer that kind of submission, so you may not be able to wiggle out of it, but ideally, literally every piece of your writing that you ever send to anyone in the publishing industry with whom you do not already share an established relationship of trust should be sent via tracked regular mail. If it is your first time dealing with this particular person or entity, send it registered mail, so someone will actually have to sign for it. That way, should a question ever arise, you can prove exactly when they received it.

If you absolutely MUST send a submission via e-mail, send blind copies to a couple of friends whom you trust not to forward it along. Ask them to save it until you send them an all-clear signal. That way, you can prove, if necessary, that as of a particular date, you were the writer in the position to send the material.

I frown upon sending original material via e-mail, anyway, for a variety of reasons. First, most NYC agencies and publishing houses are working on computers with outdated operating systems; the chances that they will be able to open your attachment at all, especially if you are a Mac user, are pretty slim.

Second, and more seriously, you never REALLY know where an e-mailed document is going to end up. It can be forwarded at the recipient’s discretion, and at the discretion of anyone to whom he forwards it, indefinitely. Technically, this can compromise your claim to copyright, since in order to copyright a piece, the author must have maintained control over how and where it can be read. (This, incidentally, is why postings on a blog are considered provisionally published, to protect the writer’s ownership of them.) If your piece has been floating around the computers of Outer Mongolia for the last six months, it’s going to be awfully hard for you to prove that you held control over who did and did not read your work.

What you do NOT need to do — and what many novice writers give themselves away by doing — is place in the header or footer of every page, “© 2005 Author’s Name.” Yes, copyright can be established by proving intent to publish, but intent to publish is also established by submitting work to an agent or editor. Technically, your work is not copyrighted at the manuscript phase, but at the time of actual publication, so adding the “© 2005 Author’s Name”  is actually a false statement, and one that will not protect you, should push come to shove. It will, however, give rise to substantial mirth amongst its first readers at most agencies and publishing houses. “Look,” they will say, pointing, “here’s another rookie.”

This unseemly mirth tends to cover an undercurrent of hostility: writers who so pointedly indicate distrust of the people to whom they send their work are in fact conveying a subtle insult. You are not to be trusted, such marks say, loud and clear, affronting those who would never steal so much as a modifier from an author and not scaring those who would steal entire books outright. Best to leave it out.

The beauty of the Poor Man’s Copyright, of course, is that it can be done entirely without the knowledge of your recipients. Ditto with the blind e-mail copies. There’s no need to advertise that you are protecting yourself. But for heaven’s sake, especially if you are dealing with someone that you do not know well enough to trust, take these few quiet steps to protect yourself. Chances are, you will never need their help, but remember that old-fashioned sampler: better safe than sorry.

Keep up the good work!

– Anne Mini