≡ Menu

Writing Without Copyright

In the 22 years I’ve been writing seriously, I’ve never registered a copyright with the US Copyright Office. In the beginning, I thought it was wonderful that once I wrote something, it was protected. Somewhere in that first year of writing, though, I learned that I didn’t stand much of a chance in winning a copyright case in court without registering a copyright with the US Copyright Office.

In my first year of serious writing, I made what averaged out to a couple hundred dollars a month writing independent (i.e., creator owned) comic books, short stories, and the occasional article. The $20 fee to register copyright for each substantial work — when I was producing, in some months, close to a dozen substantial works — was more than I could afford. So I took my chances and never registered a copyright.

I never really thought about it until a friend asked me how I’d view a world without copyright as a writer. My first thought was a knee-jerk reaction: “That would be terrible — we need copyright protection!” But when I thought about how I’ve never had to enforce a copyright in all my years writing, I came to this conclusion: copyright really benefits those who use it to coerce writers, artists, musicians, consumers, and others.

In the News

In much the same way that if somebody tells me to look for purple things throughout my day I will notice purple more than usual, I started noticing articles about copyright abuse: musicians producing original work being accused of stealing sounds; writers receiving cease and desist letters for writing parodies; independent filmmakers willing to offer what they were doing for free via bit torrents seeing their means of distribution shut down because some people used the same services to share movies. Just a few weeks ago, my wife loaded a video on YouTube that was flagged because she used a Creative Commons Haydn piano sonata. And just yesterday, I came home and read this on BoingBoing.net.

Add to that how it seems a handful of years can’t pass by when one doesn’t read about Disney — a company that largely exists from creating derivative works — claiming others are creating derivative works of their derivative works. If it weren’t so stifling, it would almost be humorous.

Fortunately, innovation often outpaces coercion, and there are now other ways for musicians and filmmakers to get their work out there. But at the time of Napster and the beginning of bit torrents, there were people offering their art and having their means of distribution shut down by corporations, organizations, and the government — all in the name of copyright protection.

The Writer’s Turn

Just as musicians and filmmakers have had to deal with the suppression of their rights to create and distribute their work by non-traditional means in recent years, writers are now getting their turn. Books weren’t the easiest thing to copy in the past; it was easier to just buy or borrow a book than to copy War and Peace one page at a time on a Xerox machine. Because of this (and many other reasons), publishing has always been a slow industry with gatekeepers deciding who got in…and who stayed out.

With the rise of e-books, novels are now like albums — something that can be copied, shared, and read on computers, tablets, and smart phones. Even with early demand, publishers were slow to catch on. At a 2009 South by Southwest panel called “New Think for Old Publishers,” publishers walked away looking like a lonely middle aged guy desperately trying to convince a bunch of 20-year-olds that he’s still hip. It wasn’t until Amazon pushed for e-books that people really paid attention.

The Big River (Apparently Full of Piranha)

Amazon quickly made the e-book a viable thing through the innovation of the Kindle and the means by which they were able to distribute e-books. While other e-readers existed, it’s safe to say it took Amazon to make the e-book an everyday thing. And with that quick success (Amazon making the market and then claiming 90%), came the cries that Amazon wasn’t playing fair. They were a monopoly with aggressive tactics — that was the claim by some companies angry that they didn’t think of it all first!

It’s hard to feel bad for Barnes and Noble — a company that aggressively targeted small booksellers in an effort to drive them out of business — crying foul when they are on the receiving end of similar tactics they once used. It’s kind of like seeing a playground bully bested in battle by a crafty, tough nerd.

I’ve heard people say “Amazon is a monopoly! They own the market share of e-books!” Why shouldn’t Amazon have the biggest share when they were the ones who thought, “Let’s make publishing easy and give indie publishers a 35% royalty on anything between $.99 – $1.99, and a 70% royalty on anything more than $1.99.”?

A seventy percent royalty is unheard of! Why wouldn’t writers consider self-publishing e-books when traditional royalties on hardbacks are considerably less than Amazon’s low end of 35%. When I self published comic books back in the 90s and got 40% for each book sold through the direct market, I thought it was the greatest deal in the world! And now I can do that with novels that cost next to nothing to produce.

The “Evils” of Amazon’s “Monopoly”

Amazon no longer has a 90% share of the e-book market; in large part because their aggressive tactics and “stranglehold” on the industry opened the door for other booksellers, publishers, and e-reader/tablet manufacturers. The Nook, in part, owes its life to the Kindle — and Barnes and Noble followed Amazon’s lead with an online store and e-book sales. Barnes and Noble and other companies are all benefiting from Amazon’s innovation.

But there are still those who think otherwise. My favorite Internet battle in recent weeks has been J.A. Konrath and Barry Eisler’s challenge to Author’s Guild president, Scott Turow. (More about that here and here.) The quick version: Scott Turow came out in support of the agency pricing model in publishing, and in the process, attacked the way Amazon does business. Instead of siding with the interests of the writers he’s supposed to support, he sided with the pricing model used by major publishers that puts a smaller percent of royalties in writers’ pockets.

If you’re not familiar with Konrath and Eisler, they are midlist writers who broke away from traditional publishing and did it on their own, using e-books as their main product. Konrath was unsuccessful at convincing his then publisher to re-release his out-of-print books. He was told it wasn’t worth it. He fought for the rights, released them as e-books, and they’ve pulled in decent 6-figure totals. Eisler, seeing Konrath’s success, walked away from a 2-book, $500,000 publishing deal to do it himself. (He says it was more than worth it.)

When the same friend who challenged me to imagine a world without copyright sent me the graph featured by Stephan here last Saturday, I was not at all surprised to see Amazon moving more books in the public domain — and then since the rise of print-on-demand technology and e-books. The dip in the numbers of books released during times of industry coercion through copyright claims says it all.

The Traditional Way

I’m lucky enough to be friends with a handful of writers much more successful than me. A few of those writers — and a couple writers I follow online — have made no secret that they would love to see fewer writers being published. Fewer writers being published means more for them. In some ways, I find it hard to totally fault them; they are writers who came up in a time of gatekeepers. Once invited to that side of the wall, they want to cling to what they have — even if they are the same writers who once complained about gatekeepers holding them back.

Should one believe I’m bitter because I’m not on that side of the wall, I am not opposed to going the traditional publishing route. While genre fiction has seen e-book successes like Amanda Hocking and John Locke, upmarket and literary fiction doesn’t have a similar kind of e-book success story. Despite getting rejections letters that amount to, “Loved this–you’re a talented writer, but…it’s too quirky and I don’t know how I’d market this,” I still try to find success the traditional way with some stories. But I’m also a fan of e-books. I’m an even bigger fan of having so many options!

Where I Stand

I offer some of my writing for free, and some for $.99 – $2.99 in the hope that people will buy it instead of copying and distributing it themselves. But if people want to copy and share my writing (everything I offer is DRM-free), I’m fine with that. While I want nothing more than to write full time, I am not owed a career as a writer.

There seems to be a belief that if one works hard at a creative pursuit that it’s somehow more noble than the person making a widget or other product. (And having to fight patent law like some writers fight copyright law.) I love what I do, but it’s no more special or requiring extra protection than a guy who loves making bars of soap.

To those who say we need at least some kind of IP law to protect me, since the night a friend challenged me to imagine a world without copyright, I’ve realized that if I’m doing my job right, you know who I am. If you don’t know who I am (and most people don’t), I need to work harder to generate excitement about what I do so people come to me for my writing — not go to others. But even if others released my writing, I find it hard to lay claim to your interpretation of the stories I write as you see them in your heads.

In addition to being paid to write, I’ve been paid for photographs accompanying travel articles I’ve written. I have a hard time believing that I should be extended copyright for those photos, when all I’ve done is capture what’s already there. If I do my job as a writer — like a photograph — I’m simply capturing what’s already there around me. And I find it quite arrogant — even bordering on hostile — to lay claim to my surroundings.

* * *

About Christopher Gronlund

Christopher Gronlund is a writer living in Texas. His first novel, Hell Comes with Wood Paneled Doors, can easily be seen as a derivative of National Lampoon’s Vacation, Stephen King’s Christine, and TV’s Wonder Years. He blogs at thejugglingwriter.com.

{ 9 comments… add one }
  • coturnix April 4, 2012, 8:25 am

    A market, in the most general sense, is a way to limited resources among unlimited desires using a framework of some kind of property. that’s weird definition, but let’s see where it goes… in a material possessions’ world, material possessions are always limited, and people’s desire to use them are close to unlimited, therefore people bid for things, and things have value. But in the world of intellectual ‘things’, and particularly books, situation seems to be getting quite reversed. The amount of time that people can spend on reading books is severely limited, just like people are. Strange consequence of this is that already amount of books written is more than people can possibly read. Therefore, the limited resource is people, and … what next? There is a place for a market, quite different from a normal market, but still a free market according to given definition, and how is it going to embed itself into ‘regular’ market? I don’t know, but it is interesting topic to ponder…

  • JdL April 4, 2012, 2:12 pm

    My first thought was a knee-jerk reaction: ‘That would be terrible — we need copyright protection!’ But when I thought about how I’ve never had to enforce a copyright in all my years writing…

    Did it occur to you that maybe, just maybe, the reason you’ve never had to enforce copyright is precisely because there IS a copyright law which deterred people from ripping off your work?

    You anti-copyright types seem to have a bit of trouble embracing logical thinking.

  • Christopher Gronlund April 4, 2012, 7:35 pm

    Coturnix: I think the writers who would like to see the amount of books published limited definitely see it as, “There are too many books watering down the market, making it harder for me.” Your point is definitely interesting to ponder. What I find interesting about those who argue “Too many books–not enough people,” is that their solution is to limit the number of books published…not figure out ways to get more people reading.

    I definitely look forward to seeing where things go next, and how new opportunities and markets will find their light.

  • Christopher Gronlund April 4, 2012, 7:49 pm

    JdL: Did it occur to you that maybe, just maybe, the reason you’ve never had to enforce copyright is precisely because there IS a copyright law which deterred people from ripping off your work?

    I don’t see copyright protecting me from having my work ripped off. Every writer I’m friends with, especially comic book writers, has had their work ripped off (by your definition)…quite regularly. Copyright does not stop people from downloading the series or novels they write. The interesting thing is most of these friends are fine with it because, as their work is shared, they’ve seen their sales rise. Now, I’m not saying writers must accept that’s just the way it is, but the writers, musicians, and artists I know recognize that it’s helped them. What worries them is when other people use copyright law to try to stop people like them from pursuing what they love.

    When a group of filmmakers play by the rules and are licensed to make a film based on a property and a studio doing something similar suppresses that right, I have a problem with it. People using public domain music deal with companies claiming they own the copyright on classical pieces composed in the 1700s and recorded by musicians releasing their recordings under Creative Commons licenses. Do you really find that okay? Elderly people who don’t even know what an MP3 file is receiving letters saying, “Pay up, or we’ll take you to court.”

    I don’t think that’s right.

    I’ve had friends who spend a lot of time getting movies, music, and stories from bit torrents. Their collections, in some cases, are so large that there’s no way they can consume it all. Copyright does not deter them one bit.

    If somebody wants to steal my writing (if you want to call it stealing; I don’t, because I’m fine with people copying and trading my work), they’re going to steal it. Just because I’m okay with it, do not think I believe every writer should be like me. If one wants to try enforcing their copyright, I won’t begrudge them that right. (Even though I do think it’s a path to madness in many cases.) I’ve seen some friends have success with cease and desist letters, but most — when they see just hard a battle it’s become — just give up. The people who seem to be “winning” are those winning cases against parents whose kids downloaded — in some cases — a handful of tunes and are faced with settlements reaching 6 figures.

    I have yet to see a creator like me, the kind of person copyright is supposed to protect, win a copyright case in their favor reaching even 4 figures. (I’m not saying it’s never happened — I’m just saying I haven’t seen it.) Of the people I know, the closest thing to victory is either somebody abiding by a cease and desist letter, or convincing the person who took their work to pay a couple hundred dollars and stop pawning the writer’s stuff off as their own.

    You anti-copyright types seem to have a bit of trouble embracing logical thinking.

    An interesting thing: I’m friends with a private investigator who backs SOPA and makes a decent living tracking down people who make counterfeit goods. Another friend helps people enforce copyrights (with victory usually being a cease and desist letter that’s heeded). We chat and see things differently, but I never address them as “You copyright types,” and then accuse them of not understanding logic. I think it’s much too easy to brand an entire group as I see fit. Apparently, you don’t.

    I am not an “anti-copyright” type. I am not out there advocating for the destruction of copyright because really — I just want to do my thing and write. Personally, I don’t care if there’s copyright or if there isn’t copyright; I will write in either case. I wrote this entry because I was invited to, and it’s a subject I’ve found very interesting since the evening a friend asked me how I’d function as a writer in a world without copyright.

    Experience tells me that copyright doesn’t help people like me — the people it was created to protect. I don’t say this based on some theory I have; it’s based off of many friends who have seen their work traded online and have had no luck stopping it. At the same time, I’ve seen people as close to me as my wife have companies that can afford to coerce people claim rights to things they didn’t create. Logic and many other things tell me that’s not right, and maybe it’s time to think of other ways of doing things. If that includes the end of copyright, so be it. I am a resourceful person and would survive without it; in part, because it does very little for many creative people I know.

    Since you ended accusing me of not being capable of logic, I’ll stoop to your level and make this point again: you say the reason I’ve never had to enforce copyright is because copyright exists. But right now you can go to Demonoid or many other sites online and find pretty much whatever you want for free. Copyright law is not deterring a thing. It’s clear it’s not working as it was meant to — any logical person can see that.

    So for me, the conversation becomes, “What next?” Like Coturnix above, I will ponder other ways of doing things…because what we’ve been doing isn’t working; in fact, a logical person can argue that it’s only gotten worse.

  • Christopher Gronlund April 4, 2012, 8:33 pm

    JdL: I’m genuinely interested in discussing reasons for and against copyright. I’m also interested in seeing why people stand where they do on issues. It seems fair to assume you believe creators need copyright protection? And I won’t fault that. I think it’s also safe to assume that you’d have issue, were you me, if somebody copied and traded your stories?

    What I’m really interested in is where you stand on companies using copyright against creators, in the examples I’ve included in my first reply to you. Do you feel that the concept of smaller creators actually being protected by copyright is worth allowing such a level of coercion that laws like the proposed SOPA are a possible reality? (I say “concept” because a look at any bit torrent site proves copyright doesn’t protect creators like me.)

    Where do you draw the line when it comes to enforcing copyright? If I write a story about a family traveling cross country in a possessed station wagon and I’m close to releasing it and you have a similar story about a family traveling cross country in a possessed station wagon, do I have the right to try to stop you (even though we came up with the ideas independently), simply because I’m a step closer than you to release? Because there have been cases where similar things have occurred, and if I have a lot of money, I can make your life miserable as I try to lay claim to an idea.

    I really do want to hear your side, and hear what your stake in copyright is…and why you think copyright protects people like me when I know people who have their work available for free on bit torrents and other places online against their will. (But just not caring about it anymore.)

    Please chime in with more than, “Did it ever occur to you who can’t grasp logic…”

    I hope I’ve made a case that yes, it’s occurred to me quite a bit and that I’ve shown that copyright doesn’t protect creators. I also hope that in my replies that you view me as somebody who doesn’t just attack when attacked and can engage in a logical discussion.

  • Joe April 5, 2012, 1:30 pm

    As a copyright lawyer, I’d just remind you that one thing to keep in mind is that copyright vest automatically – there is no need to register it does give one additional benefits tho.

  • Aidy April 6, 2012, 10:29 pm

    Writing online can be tricky. But there are standing copyright laws that will still protect writers from copyright theft and infringement. Brilliant and informative article and Christopher, great commentary as well.

To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.