COPYRIGHTS – In the modern era, literally every artist and writer lives and dies on their copyrights.
But what exactly is copyright? Where does it come from? Who created it and how? What does it mean? What exactly do you own when you have a copyright? What are your rights to your own work? How do you prove or register your rights? Do you even need to? How long does it last? How do you market it, what are you selling? Where is the line between your copyrights and someone else’s? When is copyright infringed? What about reviews?
A basic understanding of copyright is a fundamental, critical need for any writer or artist to navigate through life. This presentation is intended to provide the tools to appreciate and explore rights.
Enclosed are my presentation notes for When Words Collide, 2026.
Hi. My name is D.G. Valdron, I’ve been a writer all my life. I’ve had 27 books published, lots of short stories and articles. I’ve also published fifteen books by four other authors. In my day job I am a lawyer, with a Practice in Aboriginal Law – I represent Indigenous peoples and fight for indigenous issues. I do not actively work in or make my living as a lawyer in the fields of intellectual property and entertainment law. My avocation as a writer, work with arts and writers organizations. volunteer work with writers, research and reading gives me some grounding in this area. I do not pretend to be an expert – I know a little more than you do. My objective is to share. This Crash Course does not constitute a formal legal opinion, nor does it constitute legal advice. It is solely for education and information only, intended to provide a basic grounding in key concepts and their application. The recipient is encouraged to continue to learn, read and research on the subject and the issues surrounding same. This is the beginning of your journey, not the end.
COURSE OVERVIEW
What is Copyright? It’s the right to make copies.
Examples – reproduction, translation, interpretation, exhibition, broadcast
When is it created, how is it created, how it works, who owns it
Limits and exceptions
Similar rights – Moral rights, privacy rights, publicity rights, trademarks
Focus on Canadian copyright, will touch on Americans
CAVEAT: Can’t make you an expert – do your own homework – but know where to look
Canadian Copyright Act is 188 pages, lots of details, qualifications, exceptions. Copyright Act
Changing law, gray areas Broad overview – focus on writers and writing. Music and recording different area
CAVEAT: Not legal advice – educational
HISTORY OF COPYRIGHT
Control over reproduction – sense of ownership, difficulty
Printing Press – and the threat – French – Etienne Doulet, burned at the stake. (800
printers, publishers, authors and book dealers were in the Bastille at the time of storming)
Printing presses were licensed and strictly controlled in England,
Even into the 19th Century – McKenzie King, printers and pamphleteers were attacked, presses destroyed. Subversive, dangerous and confrontational.
Europe – multiple jurisdictions, different approaches here and there.
English Copyright – statute of Anne 1709 – limited copyright 21 years – 14 years for new books, plus a renewal of 14 years if the author survived the first 14 -think about that.
French ‘Rights of Authors’ and moral Rights
Dutch Piracy
Berne Convention 1886-1887 – (Victor Hugo ‘Les Miserables’) (United States signed in 1988)
Universal Copyright Convention, 1952 – extended to states not part of the Berne Convention, provided reciprocal rights. (US didn’t sign)
United States – Big ass pirates – developed an alternative system, based on registration. That’s why so many American films ended up in public domain.
Now it’s China – Middle East has also had a history of not paying attention – Turkey, Iran
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
WHAT DID THESE CONVENTIONS DO
International recognition of copyright
Inter-country recognition, reciprocity
Basic rights and standards – but each country has its individual
Sets a floor – but can go beyond
BASIC ELEMENTS
Distinction Between a work and the copyright
– Picture of a duck, a book, a painting
What are basic elements of copyright.
– creative work – stories, novels, poems, jingles, photographs, pictures, films, any number, songs, sheet music, video, sculpture, statue, etc.
– must be fixed or recorded
A dance or improv show, no go
A recording of an improv, or a choreography
This lecture, notes for this lecture, videotape of this lecture
– ideas are not copyright, anyone can use an idea
Copyright covers the expression of an idea
– facts not copyright – DaVinci Code / Holy Blood Holy Grail
– title cannot be copyright –
Bundles of rights
– includes copying, translation into languages, re-imagining, characters, settings, components, interpretation into formats (books to movies) (drawings to sculptures), broadcasts,
– time periods, jurisdictions
IMPORTANT – rights can be sold or given selectively.
Term of Copyright
– Originally 50 years – many jurisdictions still lower end
– Life of Artist plus seventy years
– Corporations and unknown artists – 70 years
– Europe – 70 years from death of artist.
– Longer periods – United States – now 70years. But for works published before 1978, a maximum of 95 years.
Watch Out for – United State: Copyright Term Extension Act – aka Mickey Mouse Protection Act 1998. The 1998 Act extended for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier
This is why we are finally seeing old works like Winnie the Pooh or Mickey Mouse enter public domain.
Caution – not everything goes into public domain at once. New elements added to an ongoing work will have later copyright – Mickey Mouse’s white gloves, or his voice were later additions.
– ‘Tweaking’ new lease – 2016 American decision – ‘Remastered’ work has new copyright. Elvira Mistress of the Dark series.
Who Owns Copyright?
– Creators own –
– Work for Hire – American… Canada has an equivalent.
– Subsidiary Copyrights, nested copyrights – movies as an example
King Kong complications – Two Kongs in 70’s. King Kong cartoon and Toho
– Joint Copyrights – Malazan
– Independent creations
– Unpublished
Fair Dealing/Fair Use – Exceptions to Copyright
Canada – Fair Dealing
research,
private study,
education,
parody or satire
review and criticism, if maker is acknowledged
news reporting, maker acknowledged
In the US – Fair Use
commentary,
search engines,
criticism and review,
parody,
news reporting,
research, and
scholarship.
Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor test.
1) Purpose and Character – transformative
2) Nature of the Work
3) Amount and substantiality of the infringement
4) Effect on the Work’s value
5? Acknowledgement
Field is changing –
Rap and Music Sampling, a lot of litigation then
Internet is a challenge, file sharing, MP3, streaming, downloading, still at issue
Commercial entities throwing their weight around – It’s a wonderful life
What about the little guy
Copyright Registration – Canada and the US
– Canada – registration system, not a requirement
Registration of copyright—filing online
– US registration system, used to be mandatory
1790 – 14 years, plus a 14 year renewal
1831 – 28 years with a fourteen year renewal
1909 – 28 years with a 28 year renewal
1976 – life of author, plus 50, or 75 years for corporate
1992 – removed requirement for renewal
Register Your Work: Registration Portal | U.S. Copyright Office
– Why? – Historical
– Registration fees
– Proof
– Amazon
What is not registration?
– ISBN (International Standard Book Numbers)
– National Archives/Library Deposit
– Registered mail
TRADEMARKS
Trademarks and Copyrights are often confused.
Blame corporations like Disney – in order to hold onto their intellectual properties, to extend copyright, they will trademark work.
So you see overlap – indicated by ‘tm’
There are similarities – both trademarks and copryights have a ‘public domain’ for ‘free use.’
There is an equivalent to ‘fair dealing’ or ‘fair use’ in the form of something called nominative use.
What is a trademark and how does it differ? A Trademark is a “MARK IN TRADE’ an identifier of a commercial product. It is designed to br recognized and distinguish from similar products – the Pepsi Logo, or the shape of a coke bottle. It’s to tell you that this is the ‘genuine article’ and not a knock off or genericl product.
Trademarks can arise through common law and regular usage, but are not well protected.
Real Enforceable Trademarks – There is a government Registration System.
Copyright does not require registration – its a creative work. Trademarks are created to be registered, its a marketing product.
Trademarks can exist forever, no time limit.
But Trademarks must be enforced – if a trademark is not enforced and becomes part of common use, it goes into the public domain, its no longer distinctive.
A ‘Nominative’ use, is a use of a trademark which does not pass itself off or undermine the product. You can mention someone drinking a coke in your novel – you’re not offering to sell soft drinks or confusing coke drinkers. A book about New Kids on the Block is a nominative use of the New Kids on the Block trademark, because they’re not marketing a boy band.
But be careful – consider Friendly Giant and Omegaverse lawsuits.
OTHER RIGHTS
Moral Rights – originally french
Right to be recognised as author
Right to integrity of the work –
US recognises moral rights only for visual arts
Can be Waived – not sold
Publicity Rights – Kim Kardashian, Son of Bela Lugosi, Three Stooges
Privacy Rights – the right to be left alone.
WORKING WITH THESE RIGHTS
Assignments and Licenses, difference – express
Always go with licences
Unequal bargaining power
The rights you sell
– duration/time period
– jurisdictions
– specific bundles
Remedies for infringement – on your own
– commercial loss – lost profits calculated in different ways
– restriction
Abuse.
Criminal Copyright Infringement
Public Domain (Addendum)
(following are my moderator notes for a panel on Navigating Public Domain, October, 2024, NASFIC in Buffalo, NY.)
WHAT ARE THE BIG, PRESSING MODERN ISSUES WITH PUBLIC DOMAIN AND WRITERS, CURRENTLY?
HAVE THERE BEEN ANY MAJOR SCANDALS – IE – OMEGAVERSE
WHAT’S A GOOD WAY TO DETERMINE IF SOMETHING IS IN PUBLIC DOMAIN
IF YOU THINK ITS IN PUBLIC DOMAIN, WHAT SHOULD YOU WATCH OUT FOR? DANGER ZONES.
HOW CAN WE AS WRITERS / PUBLISHERS MAKE USE OF PUBLIC DOMAIN?
ARE THERE LEGAL AVENUES OR LOOPHOLES THAT HAVE THE SIMILAR EFFECT – FAIR COMMENT
Distinguish COPYRIGHT versus TRADEMARK
* Both Copyright and Trademark have registered and unregistered interests;
* Full rights vest in Copyright whether registered or unregistered, there are just additional protections;
- Unregistered Trademark is recognized but risky – can be pre-empted by registration.
* Both have Public Domain –
* Copyright Public Domain is usually expiration.
* Trademark Public Domain is typically through widespread use – Zipper, Kleenex, Colorisation
Distinguish Public Domain from Fair Dealing / Fair Use
* Copyright is retained – you just have a limited exception to use the work
Public Domain is an International Issue – Each Country has its own rules
UNITED STATES
* US initially had a Registration System – facilitated piracy – if you didn’t register it, you didn’t have copyright.
* Copyright could be registered by third parties – Dracula
* Failure to register or register properly lead to variou works falling into public domain.
Night of the Living Dead
* Or it lead to a giant swamp.
King Kong
* United States – – Longer periods – United States – now 70years. But for works published before 1978, a maximum of 95 years.
Watch out – even when something enters public domain, new unique elements may still retain copyright – Pooh’s red shirt, Mickey’s white gloves.
OTHER COUNTRIES – BERNE & UCC – INTERNATIONAL TRADE AGREEMENTS
* Originally general rule of life of the artist plus fifty years – no registration, automatic on creation
* Corporate owned /created work – fifty years.
* Extended to 70 or 75 years now.
* Diff jurisdictions had slightly different rules
– Canada published a collection of James Bond stories – Bond was in public domain there.
– Gutenberg Australia published ERB novels out of place.
* What went into public domain before the extension of period stayed there in public
– Possible national variations.
* Applied only to existing works.
ITEMS DELIBERATELY PLACED IN PUBLIC DOMAIN
* Tricky, no valid registration or tracking system – do your homework to verify
CREATIVE COMMONS
MYSTERIOUS WORK – ABANDONED ARTISTIC OR LITERARY ESTATES
* Something of a problem – not in Public Domain – but at the same time, may be difficult or impossible to track down the copyright owners. Copyright interests may be split.
* Clear problem when reprinting old or obscure work.
THINGS FOR WHICH COPYRIGHT DOES NOT APPLY AT ALL
* Names
* Titles
* Sufficiently generic concepts, ideas, phrases
* Test is substantial similarity
* Not same as plagiarism – subgroup
* But watch out for poetry, song lyrics or melodies – threshold is very different.
BOTTOM LINE
There is no road map, registry or authoritative source for works.
Minefield, tiptoe through, take each case carefully.
USEFUL LINKS
Canadian Copyright Guide
https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html
Canadian Copyright Registration
https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00021.html
https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/vwapj/DA-CR-form1-eng.pdf/$file/DA-CR-form1-eng.pdf
United States Copyright Act
https://www.copyright.gov/title17/
United States Copyright Registration
https://www.copyright.gov/
SHAMELESS SELF PROMOTION
Are you still here?
Fine.
Look, this isn’t my field of law, I’m not one of the professionals making a living off of this, or specializing in the field. I don’t know, and I don’t work with Agents, Publishers, different sized presses, etc. I have no standing in the industry.
But for various reasons, including being around for a long time, and having my own scars, from listening and researching, and just picking stuff up as a writer, I know a few things.
If you have a problem, or a puzzler, if you’re uncertain and need someone to talk to, and you can find me… I’m happy to talk and try and help you. I’ve helped people in the past.
So if you can find me…
In the meantime, I’m just going to mention a few books I’ve written, just in case you’re interested.
Nonfiction – LEXX Unauthorized, Lexx was a Canadian space opera created and produced in Halifax Nova Scotia by Salter Street films. Surrealistic and innovative, it’s a cult item, and I’ve written the definitive book. Also Starlost Unauthorized and the Quest for Canadian Identity, Harlan Ellison can kiss my ass. The Pirate Histories of Doctor Who goes down the unexplored corners – Stage Plays, the Audio Universe, Gray Market issues, Copyright issues, Reconstructions, fan production of film and audio, the intersections of intellectual property and fans, of culture and technology, of creativity at the margins.
Horror – Squad Thirteen – An 80s slasherfest that delves into both cosmic and existential horror, and a story that somehow seamlessly merges Francis Ford Cuppola’s Apocalypse Now with Mattel’s Hungry Hungry Hippos board game. Also short story collections – There are no Doors in Dark Places, Giant Monsters Sing Sad Songs, and What Hungers also Devours.
Comedy – Drunk Slutty Elf and Other Stories and Drunk Slutty Elf and Zombies. Nuff said.
Alternate history – The Bear Cavalry, A True (not!) History of the Icelandic Bears. A chronicle of domestication, cultural evolution, and royalty behaving badly, told as if you were watching a Morgan Spurlock documentary. Also Axis of Andes / New World War, in the real world, in 1940, a little brushfire war took place between Ecuador and Peru – it didn’t amount to much, killed very few people, lasted a month, but in the end, Ecuador lost 40% of its territory. In this alternate history, the Ecuadorans are determined to fight, Adolph Hitler has a passing involvement, and circumstances careen out of control until an entire continent is burning. Written as an actual history book, rather than a romance novel, deeply researched and fascinating, where the countries are the characters.
The Mermaid’s Tale – my big breakthrough, and a fantastic grimdark novel. The Mermaid’s Tale follows a nameless orc on a mission to track a monster through a warring city. What she discovers is her world’s first serial killer. A novel of transformation, redemption and creatures of darkness crawling up into humanity. The reviews were absolutely fantastic.
The Time Traveler’s Chronicles – True fact – Did you know that in the summer of 1913 in Vienna, Adolph Hitler, Joseph Stalin, Leon Trotsky, Josef Broz Tito, Sigmund Freud and a certain Archduke were all living within a couple of square miles of each other, passing each other on the street, waiting in the same lines, attending the same shows, reading the same newspapers, etc., unknowingly rubbing shoulders. If that’s not amazing, and if a story based on that that doesn’t sell you, then I don’t know what to say.
Murder Chickens on Mars, The Dawn of Cthulhu, The Fall of Atlantis, and B-Movie Monsters in Love. Grade A weirdness, I promise.
I have other books, I will have other books, I’m a dedicated writer. Buy something, dammit.