On Saturday at 7PM in Hyatt Embassy CD, Dwayne Keith Goetzel, James A. Hunter, Bethanne Kim, Courtney Lytle, James P. Nettles (Moderator), and Toni Weisskopf presented a program called “IP Here, IP There, Intellectual Property” that focused on copyright, patents, and trademarks. Nettles started the panel by stating that no attorney-client relationship resulted from the presence of attorneys on the panel and that nothing said should be taken as legal advice for any individual.

He then asked the panel to briefly explain copyright. Goetzel, an IP attorney, said copyright was covering the content of a book while trademark covers the title of a series (but not a single book) and patent applies to the process of manufacturing the book and to any trade secrets used in running the business. Kim works with the 1632 series. She explained that the family of its creator, Eric Flint, owns all the rights to the universe, and that anyone wanting to write in that universe must obtain permission from 1632, the Flint family, or Flint’s publisher, Baen.

Lytle, who is also an IP attorney, likened copyright to a bundle of sticks. One stick might be the right to publish a book. Another might be the right to generate media tie-ins, while yet another might be the ability to create derivative works. She added that copyright is a creation of federal statute, with no common law counterpart. Rights that are given away may be exclusive or non-exclusive, depending on the contract granting those rights.

Hunter, an author and publisher, added that while copyright enforcement requires registration with the Library of Congress, inherent copyright exists from the moment a work is created—though fan fiction presents a more complicated question.

Nettles noted that if infringement occurs before the work’s copyright is registered, the copyright holder cannot claim statutory damages or attorney’s fees. Goetzel pointed out that statutory damages can be up to $100,000.00 and that attorney fees on infringement cases are steep.

Registration is not free but is cheaper than losing out on recovery of attorney fees.

Baen publisher Toni Weiskopf said her company is contractually obligated to register copyright with the Library of Congress on behalf of its authors. As discussion turned to the impact of AI on copyright, she said some short stories submitted to them are clearly AI and identifiable as such. As AI becomes more sophisticated, so do programs designed to detect it.

Kim said submissions for 1632 through Baen’s Bar mostly come from writers their staff knows, but a lot of cover artists use AI, which they prefer to avoid. Weiskopf added that the question is how to get money to creators. Lytle said AI work is not copyrightable though there is no numeric percentage test for copyright. At what point does the AI stop being a tool and becomes the author? Until Congress acts, the copyright office applies existing law. Goetzel put in that the question of training AI by input of a copyrighted book could cause copyright issues, but the courts haven’t yet decided what that means.

A work must be complete to be eligible for copyright, and each book in a series requires its own copyright registration. Five books need five copyright registrations. This must be done through the Library of Congress. There is no such thing as “poor man’s copyright,” the act of establishing copyright by mailing oneself a copy of a manuscript in a sealed envelope and leaving it sealed, to be opened only at trial. The attorneys on the panel were emphatic that this accomplishes nothing from a legal standpoint.

The discussion then shifted to trademarks. The title of a single book cannot be trademarked. A series title can be, but not until there are at least two books published in the series. Authors can trademark their names, which may be more important to those using pseudonyms, or their business names. Registering a trademark costs $350 per class (or type) or object, such as a book or media tie-in. Total cost for a single class may run as high as $1500 to $3500, so whether or not to register requires a cost/benefit analysis. Does the author make enough on a series to be worth the cost of trademarking the series name?

The panelists also touched on predatory rights grabs. Examples included assigning a copyright to a publisher instead of a grant of publication rights for a time certain. Writers should be wary of anyone who contacts them without the writer reaching out first, as the contact is probably a scam. Writers should assign only rights the company actually can execute, not all rights.

Questions from the audience elicited the information that the copyright form itself is a public record anyone can see, but the copy of the work that’s deposited with the Copyright Office is not, except in related litigation.

Co-authorship raises its own issues. The attorneys on the panel emphasized the importance of having a contract. Federal statutes address co-authorship and require that the jointly created work be new, not a modification of something one party created previously. If the parties have a contract, however, they’re not bound by the statute. The SFWA website offers a form collaboration agreement as a free download. The SFWA legacy kit also contains helpful information for collaborators.

The panelists also advised everyone to be careful who they work with, avoiding giving anyone the ability to lock down their IP or their website. Work for hire is an important concept because, absent a contract, the copyright for cover art or other property belongs to the artist who creates it, not the person hiring the artist.

With that the panel concluded, leaving the audience with new information and cautionary tales to reflect on as they go forward and create.