Writer’s Groups and Copyright

Clients often ask, “Can distributing my novel in my writer’s group “lose”  copyright?”

No, you can’t “lose” your copyright unless you assign or transfer your copyright in writing.  The correct question is “Have I met the definition of ‘publication’?”

Why is it important that you have “published” your novel?  There are numerous reasons.  First, any subsequent purchaser of your work – whether a magazine or a book publisher – wants to be the first to publish, in order to maximize its sales.  Second, if you have not registered your copyright within three months of publication, you lose the right to recover “statutory” damages and attorneys’ fees from subsequent infringers.  (As I have frequently stated in this column, registration is not required in order to obtain copyright – you have automatic copyright in your work the instant it is “fixed” in any medium; registration simply gives you additional benefits in the event of infringement).

Here’s the definition of publication under U.S. copyright law (17 U.S.C. Section 101):

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.  The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.  A public performance or display of a work does not of itself constitute publication.

Clearly, you have distributed portions or all of your novel to your writer’s group – presumably for critiquing purposes – but there also is no sale or transfer, even if it can be assumed that the writer’s group is “the public.”  (The law does not define “public” per se, but does state that to perform or display a work “publicly” means “to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”)

But what if your writing group is online, and you circulate your novel via the Internet?  In that case, as long as access is limited to the members of the group, the same rule applies.  If, however, you allow the group to freely distribute the work to others, that could constitute publication. Likewise, if you post sample chapters on your web site that anyone can read – whether or not you charge a fee – that too can be considered publication.

Again, it bears repeating – even if you do meet the definition of publication, you do not lose copyright in your work – it only changes your potential market with publishers, and may affect the remedies available in the event someone infringes your copyright.  So – easy solution – when in doubt, pay the $35 fee and register your copyright at copyright.gov.