Journalists, novelists, poets and song lyricists all have rights under the law designed to protect their work. As a creator, it’s important that you understand your rights and how to enforce these against potential infringers. Below, we explain copyright, trade marks and splitting IP rights as they apply to writers.
Copyright in Australia is automatic and only protects the expression of ideas – not the idea itself. This means that you too can write a story about a wizard that goes to wizarding school without infringing JK Rowling’s copyright, provided it isn’t a substantial imitation of her work. Copyright law works differently depending on the country, so it is always best to double check the way copyright law works if you are planning to publish outside of Australia. For example, while copyright is automatic in Australia, it must be registered in the United States.
However, there are exceptions under the Copyright Act 1968 (Cth) (Copyright Act), for example, section 41A which states that it’s “fair dealing” where any work that is for the purpose of “parody or satire” does not constitute copyright infringement. So, the fanfiction “Barry Trotter” is not considered copyright infringement.
Importantly, you should understand that your copyright can be transferred and ensure this does not inadvertently happen without your knowledge or consent. For example in 2013, Harper Lee made a claim against her publishing agent stating that he had duped her into signing away her rights regarding To Kill A Mockingbird.
Trade marks are one of the strongest ways to protect your intellectual property. So, why don’t more writers trade mark their brand? Trade marks are unique identifiers of a product or service. As such, writers cannot usually trade mark the title of the book they have published.
However, as with most things under the law, there are exceptions. Some writers become well known enough that their name itself has become a brand, or perhaps a book series has been popular enough to be turned into a business or franchise – think Enid Blyton or Harry Potter, both of which you will find as registered trade marks in IP Australia’s database.
If you are thinking of registering the name of a book as a trade mark, it is generally only possible to do so if and once you have decided to start merchandising your book, since one of the requirements of a trade mark is to show your intention to use it. For example, “The Very Hungry Caterpillar” (published 1969) is a registered trade mark and is now used for a wide variety of products aside from the books, and it was not registered as a trade mark until 2008.
What can you do if another writer infringes your IP rights? As the owner of the IP, you have several options available.
1. Copyright Infringement
If the infringement is a breach of your copyright, you can seek a remedy under section 115 of the Copyright Act. Under this section, you can make a claim for damages or account of profits and, potentially, an injunction. The court in awarding a remedy will consider the following factors:
- The flagrancy of the infringement;
- The need to deter similar infringements;
- Conduct of the defendant after infringement;
- Whether the infringement involved converting the work into other subject matters or forms;
- Any benefits accrued from the infringement; and
- All other relevant matters.
As a writer, you should also take care that you don’t inadvertently infringe another writer’s intellectual property. For example, you may be thinking of quoting two lines from a poem in your epigraph or using a song’s name as your book title. If the IP of what you are quoting is not in the public domain and for public use, then you are likely to have infringed the copyright of another author. We recommend that you seek consent before reproducing any part of another creator’s work.
Trade Mark Infringement
If someone has infringed your trade mark, you can seek a remedy under the Trade Marks Act 1995 (Cth). Section 120 states that a registered trade mark is infringed when someone uses their mark as a sign that is substantially identical or deceptively similar to your mark. Importantly, remember that alternative dispute-resolution methods are favoured before any IP infringement case goes to court.
Splitting IP Rights
Finally, some writers will split their IP rights. For example, whereas JK Rowling owns the copyright to the Harry Potter series, Warner Bros (as the distributor of the film franchise) owns the Harry Potter trade mark. This arrangement makes sense for any well-known author or book series that has moved beyond its novel-bound status to become a brand and business in itself.
In Rowling’s case, Warner Bros effectively “runs” and uses the Harry Potter brand by turning it into a franchise and selling merchandise based on the movies. At the same time, as the individual who wrote and imagined the Harry Potter universe in the first place, Rowling undoubtedly owns the copyright.
Writing is an art form that can take months and even years to perfect. It’s prudent for all writers to familiarise themselves with their intellectual property rights so that they can enforce them and protect their work. However, it’s even more important for you to know what type of IP protection is right for you, and what remedies are available if someone has infringed your IP. If you have any questions about your rights, get in touch with our IP lawyers on 1300 544 755.