Understanding Copyright Protection for Creative Writers: What You Need to Know

If you are crafting a book, screenplay, film, or any other creative work, copyright law can be both a shield and a tool for protecting your ideas. Imagine spending years finalizing a creative work only to discover another has come along that shares your plot twists and characters. Is this coincidence, intellectual property theft, or infringement? To answer that, it is crucial to understand what copyright protection actually provides and what it does not, especially if you stumble upon a work from another party that seems strikingly similar to your own.

1. What Is Protected by Copyright Law?

Copyright law does not protect ideas, concepts, or themes. Instead, United States copyright law safeguards the unique expression of those ideas, such as the way you bring your vision to life through specific plot details & structure, characters, dialogue, and settings.

Copyright protectable elements include:

• The original arrangement of your work’s plot points and storyline;
• Distinctive characters with specific backgrounds, traits, and development;
• Unique dialogue between characters and other written expressions;
• The particular combination of elements within a work that gives it an overall concept and feel; and
• Specific settings, mood, and pacing, when expressed in a creative and original manner.

Conversely, copyright does not extend to:

• General themes, such as “good versus evil”, an “enemies to lovers” romance trope; or “boy meets girl”;
• Stock characters or archetypes, such as a wise mentor or a rebel leader;
• Settings and scenarios common in a particular genre, like a haunted house in horror fiction; or
• Other ideas that naturally flow from a concept or genre.

Differentiating these variables can be tricky if your work resembles another, or if you intend to investigate a potential case of copyright infringement. Proving substantial similarity between two works is often the hardest part of the analysis.

2. How Do Courts Determine Substantial Similarity?

Courts generally approach the question of substantial similarity in copyright law disputes by using both objective and subjective analyses. The objective analysis looks closely at two works for similarities in the ideas and the way such ideas are expressed, examining story elements, characters, and tone. The subjective analysis, meanwhile, considers whether an ordinary, reasonable person in the marketplace would find that the two works share a similar overall concept and feel.

In simpler terms, think of the tests in these ways:

• Objective analysis: A side-by-side comparison of story elements, characters, tone, and the way ideas are expressed.
• Subjective analysis: Asking whether an ordinary person would feel the two works share a similar overall concept and feel.

To further break down the process, courts may apply what are known as intrinsic and extrinsic tests when analyzing two works. The intrinsic test focuses on the impressions of a reasonable observer, asking whether the works appear substantially similar when viewed as a whole. The extrinsic test is more like a checklist: courts identify similarities, cross out generic or unprotectable material, and then ask how much protection the remaining creative expression deserves, ranging from broad to narrow depending on the work.

Courts located in different regions may use their own criteria when assessing substantial similarity, as well. Some courts look at specific aspects of a work, examining each element individually to see how closely the works align. Others measure the importance of copied material by considering both how much was allegedly “taken” from the original work and how significant those parts are to the original work as a whole.

Ultimately, deciding whether substantial similarity exists is a nuanced process, focused on whether the protectable parts of a creative work have been improperly used, rather than on random or minor resemblances.

3. Practical Steps: What Should You Document?

If you are a creator, keeping thorough records can make all the difference if your work is ever challenged or if you need to prove originality. Below, is a list of documentation related to your work you should consider keeping records of:

• Creation Dates: Save drafts, notes, and versions of your work with clear dates.
• Publication Dates: Record when your work is first shared publicly (including online posts and submissions).
• Correspondence: Save email records, contracts, or agreements related to your work’s development and distribution.
• Registration Certificates: If you have registered your copyright, keep all related documentation from the United States Copyright Office or other relevant authorities related to your registration.
• Idea Development: Maintain notes, outlines, or brainstorming documents that trace your creative process.
• Access & Exposure: Track where, when, and to whom you shared your work, such as agents, editors, or production companies.
• Consider Registration with the United States Copyright Office: Registration provides legal benefits such as eligibility for statutory damages, attorneys’ fees, and a presumption of ownership over your work in court.

If you are aware of another creator who has generated a work similar to yours, consider gathering the following information and documentation:

• Evidence of Confusion: If you are approached by a third party who suggests your work resembles another or accuses another creator of infringing on your work, keep that correspondence.
• Compare Works: Obtain copies of both works for side-by-side comparison, noting specific elements that are similar or distinct.

4. Conclusion

Protecting your creative work is vital in today’s digital landscape, where ideas and content can travel farther and faster than ever before. Even if you never end up in court, early registration and documentation can deter copycats and strengthen your position with publishers, studios, or agents. If you have questions about copyright or would like assistance obtaining formal registration, our law firm can help. Please contact an attorney in our Intellectual Property, Business, or Litigation practice groups for more information.