A Court Case…
More than likely, this is something almost no indie writers and publishers even know about.
Seven years ago, WMG Publishing got a demand letter from the copyright office that we needed to submit two of our best copies of every title we had published. Or pay a $250 fine per title.
Yikes… Yeah, I know you didn’t know about this… Not something talked about in indie publishing circles and because most writers refuse to learn copyright, not something that would ever come up.
Until you get the demand letter from the Copyright office like we did. Kris and I knew about it from our days at Pulphouse Publishing, but to be honest, until that demand letter, we flat didn’t care.
We spent a stupid amount of time and money for books getting this caught up and then put the copyright office on all our subscription lists and tried to set up a system to do this. We had about 400 titles at that point. (It cost us a lot in copies, thankfully not all 400 titles were in paper, but $250 per title fine might have really hurt… Do the math.)
And every-so-often, one of us would remember and we would send the copyright office two copies of a bunch of titles.
This has NOTHING to do with registration of the copyright. It was just a part of the copyright act, Section 407 to be exact.
And it has NOTHING to do with the copyright on anything. These days that is automatically given at fixation of the work.
A very quick history how we got to this in the US.
Author’s rights to their work and to benefit from it is in the United States Constitution. And in the Copyright act of 1790 (Mostly because Thomas Jefferson wanted to get books for the Library of Congress), a mandatory deposit of a physical copy was required to get copyright protection.
In the Copyright Act of 1909, a bunch of things were changed, but deposit of copies was still needed to maintain copyright in a work.
The Copyright Act of 1976 made copyright in any work automatic on fixation. It removed any idea that a creator could lose copyright for not depositing books with the Library of Congress. But they left in Section 407 that demanded two copies from all publishers.
In 1988, the Copyright rules were again changed in the US to conform with the Berne Convention. No requirement of any kind is needed for the creator to retain copyright under Berne. But yet Section 407 continued.
As the judge in the DC Circuit Court case decided a few days ago said,
“Those statutory changes brought us to the present-day version of Section 407, whose obligations are triggered upon publication but whose fulfillment provides no marginal benefit to copyright owners.”
So back about 2018, a small indie press in Virginia called Valancourt Books got a demand letter from the copyright office for deposit of “best edition” of their books they had published. After some negotiation (which we did as well a few years earlier but sent the books), Valancourt Books gave up and sued the US Government.
They initially lost and appealed to the DC Circuit Court.
The court ruled two days ago that the government can not do this anymore. Since the publishers get NOTHING in return for the government demanding books, and no copyright requirements attach under the 1988 changes to the copyright act, the demanding books or a fine was an unconstitutional taking of property in violation of the Fifth Amendment.
In this country, the government cannot take property without paying a fair price for it. Or giving fair value in something in return.
So guess what, indie publishers? Even though you didn’t know about this and were not following the law under Section 407 of the copyright act, you are now off the hook.
As of two days ago.
Here is the link to the full ruling and trust me, it is worth reading.