Should Writers Copyright Their Manuscripts?
About The Author:
Carl Vonderau grew up in Cleveland in a religious family that believed God could heal all illness. He left that behind when he went to college at Stanford and studied economics. Somehow, after dabbling in classical guitar, he ended up in banking.
Carl lived and worked in Latin America, Canada and North Africa, and conducted business in Spanish, French and Portuguese. He also secretly wrote crime novels. Now a full-time author, his debut thriller, Murderabilia, was published in 2019. He and his wife reside in San Diego. Check out more at http://carlvonderau.com/.
I worked on my thriller, Murderabilia, for years. Imagine my surprise when the TV show, “The Prodigal Son,” aired in September with a nearly identical premise. In my book and the show, the son of a serial killer has not seen his imprisoned father since he was a boy. Many years later, someone commits a murder that looks just the way his father would do it. The police need the protagonist to work with his father to find the copycat killer.
Had someone borrowed my work? Since 2015 my premise was right there on my website. The Advanced Reader Copies came out in February 2019 and the book in July. One of the TV writers, in an interview, said that he was very fortunate to draw on both fictional and nonfictional sources. He referenced Melissa Moore’s book, Shattered Silence, about growing up with her father, The Happy Face Killer. I also read that book to get ideas.
Of course, when I look closely at the TV show, there are differences. My protagonist is a banker and the hero on the show is a profiler. I have a warped religious element, some overseas locations, and a whole photography—all of which don’t appear on the TV show. My tone is very serious and the characters on the show are darkly comic. The book has a long through-line and the show is more episodic.
But the pilot had so many similarities. I decided to go out for some opinions from a couple of well-known crime writers, my agent, and my publicist. The agent and other authors thought the overlaps were coincidental. After all, it takes years to develop a TV show and get it into production.
My publicist, JKS Communications, put me in touch with two TV and film experts to further explore the what might have happened - Roy Freirich, an accomplished Hollywood writer with many credits, including the screenplay for “Winged Creatures” and author of the forthcoming insomnia thriller Deprivation; and Robert Cochran, co-creator of the hit TV show, “24” and author of the epic YA historical adventure The Sword and the Dagger. Both men confirmed that this kind of coincidence happens all the time in Hollywood. There are thousands of writers with all kinds of ideas.
We’re immersed in the same media and cultural stew, so we often come up with similar inspirations. It’s common for writers to look around for comparable shows, books or movies, while at the same time, not lifting anything specific from any other source. Cochran once was writing a script when his agent asked him to review a complete stranger’s screenplay. It turned out to be exactly the same premise.
Scientists call this phenomenon “the multiple.” It’s when the same idea occurs to several people at the same time. Four scientists in four different countries discovered sunspots in 1611. Just about every technical advance has “the multiple” in its story. Prior discoveries seed the same future discoveries all over the world.
In my case, children of serial killers have been in the news. Take Melissa Moore, the daughter of Keith Jesperson, The Happy Face Killer; and Kari Rawson, the daughter of BTK, Dennis Rader. They’ve both made numerous television appearances and written books. One of Charlie Manson’s sons recently gave some interviews. Freirich thought that a writer’s room could have come up with the same premise and plot twists that I did. But mine were completely original, right? Okay, maybe not. I’m certainly not the first person to write a thriller about the son of a serial killer.
So what are the legal protections for a writer’s ideas?
I consulted Valerie Nemeth, a California entertainment attorney. She confirmed that copyright is the best protection. It gives you, the author, the right to say—with a few exceptions—how other people can use your work.
Even before your book is copyrighted, common law protects it, as long as it is in a fixed and reproducible form. In other words, a completed manuscript and not a draft. When submitting your work, you can display the copyright notice “©” along with the date of creation and your name—even if you haven’t registered it. However, you still need to register the copyright to sue anyone for infringement under the Copyright Act.
Nevertheless, copyright only protects the expression of a writer’s work and not the idea itself. For instance, the movie, Body Heat, was inspired by the movie, Double Indemnity, but has significant differences. Copyright infringement normally means that the words themselves are copied. There’s a reason a publisher doesn’t copyright drafts.
How about the overall concepts in your book? To the extent that your ideas, plot, or characters are uniquely expressed, there may be some protection, but this is all a bit vague. In the past, courts have looked at the “heart” of the work and weighed how much the original expression may have been appropriated versus general ideas, settings, and places. Were the writers that you think copied you aware of your book, and did they have access to it?
The more specific and unique the tone, characters, dialogue, and major plot twists are, the greater the argument can be made for theft. As you can imagine, this gets very technical very fast. To prove someone has misappropriated your work requires a lawyer. And probably spending significant amounts of money.
Nevertheless, there are a few things you can do to protect your ideas. The Writer’s Guild Registry (MGWA) is used by more than twelve thousand writers, principally scriptwriters. For very little money you can register whole books, treatments, synopses, and even outlines online. The submitted material should be as detailed as possible. The Registry establishes a creation date and some evidence of ownership. It can serve as evidence in a legal proceeding but is not a substitute for copyright registration.
What about an agent? That person is bound by fiduciary duties. However, someone could still “suggest” your concept or idea to another writer. This would be extremely unethical and I’ve never heard of an agent doing it. Nevertheless, always keep acknowledgments of your submissions.
Finally, be careful how much you give away on websites and with discussions in public settings. Even—gasp!—with other writers. Keep the most original ideas close until you are ready to publish.
And if someone scoops you? Jump on their back and let them carry you. Use it to your advantage. That’s what my publisher, Midnight Ink, thought. You should reach out to the fans of the other work and draw them to yours. For instance, if you like “The Prodigal Son” but want something that delves more seriously and deeply into the characters…
I have a book for you. It’s called Murderabilia. I know the author.
William McNary is a private banker who keeps his clients’ secrets—and some of his own. His father is Harvey Dean Kogan, the infamous serial killer known as “The Preying Hands,” responsible for killing thirteen women who abused children in the Chicago area. He brutally butchered them and then arranged their bodies for his disturbing black and white photos.
These pictures started the “murderabilia” market, which William can’t seem to escape. Thirty years later, William has carefully constructed his life to exclude his father’s name and history. But a threatening phone call from a man claiming to be his brother shatters his idyllic life and makes him fear for his family’s safety.
