The problem of how to protect unpublished writing from people you plan to work with puzzles many writers. Whether and how you should share work before it has been finalized, published, and protected by an application filed with the Copyright Office is a valid concern.
While the act of writing is a lonely one, no writer ever finishes a project alone. The prepublication cast of supporting characters for writers includes: editors, agents, cover artists, beta readers, proof readers, and even publishers. Those individuals provide insight and expertise for a polished book. How can a not yet fully realized manuscript be shared with people who need to see it and still be protected?
The Risk of an Unprotected Manuscript
A notorious case of [an allegedly] pilfered unpublished work is that of Emma Cline who wrote a best seller, The Girls. Cline reportedly received a $2 million advance for her first novel and optioned the film rights before the book was even published. In December 2017, her ex-boyfriend sued her claiming that after a creative collaboration, she stole his unpublished work by installing spyware on and hacking his computer.
The case is still in its early stages at the time of this writing. The basic elements of an infringement claim are access to the original work by the infringer and substantial similarity between the original and infringing works. The spyware Cline installed on his computer gave her access to the ex-boyfriend's original work. Whether his purloined work and her best seller are substantially similar will have to be proved.
The facts of the case aren't particularly common. Nor is the ex-boyfriend's initial litigation strategy of using Cline's sexual past against her which reeks of two things: (1) a money-grubbing shakedown; and (2) having failed to take sufficient measures to protect his unpublished work.
This post doesn't pretend to address how to defend against spyware and hacking.
The focus here is on an issue at the core of the dispute: trust. Trust is at the foundation of all relationships, whether working or romantic.
Establishing trust with those who will work on your unpublished manuscript − your editor or beta reader, for example − is the key if you want to protect unpublished writing.
Copyright Registration for an Unfinished Work is Premature
Copyright protects the expression of an idea, not the idea itself. At the prepublication stage, the expression in your work may change once you have input from the professionals helping you finalize it. It may change a little, or you might experience a complete overhaul of your work.
Either way, it is premature to file an application for copyright registration until your work is finished. The workflow I recommend for writers is to create, publish, then apply for copyright registration.
The risk of having your work ripped off before publication is low. Filing an application for copyright registration before collaborative sharing is, in most cases, an excessive measure. Registering an early draft of your manuscript makes the registration of the final version a bit messier. This is because the second registration only protects the new expression in the published version. The expression in the unpublished version is protected by the earlier filing. If the work were ever infringed, you'd have to figure out which registration covers which expression. Let's just say, "Rat's nest."
Copyright Practice Tip
When deciding when to file an application for copyright registration on your written work, the best practice is to finalize, publish, then file for the registration.
Contracts can Protect Unpublished Writing
Editors, book cover artists, proof readers, and other professionals should have written contracts that set out the basic terms of their services. If they don't have a contract, they may not be as professional as they should be. You can find other useful tips for identifying reliable support professionals at Writer Beware at SFWA.
Choosing the professionals you work with often requires a leap of faith, especially when you're new to the business of being a writer. There's trust, and then there are contracts. Contracts set expectations. If you are happy with what's in the contract, the relationship will be set up to succeed.
There are two provisions that can be included in the contracts of support professionals to protect unpublished writing. There's one provision that should NOT be found in a contract of someone with whom you choose to work.
First, there should be "work for hire" language that makes it clear that you are the owner of any work done by the support professional. Work for hire language should be combined with assignment or copyright transfer language if, for any reason, the work done is not considered a work made for hire under copyright law.
Second, there should be a confidentiality provision in which the support professional agrees not to share, disseminate, or disclose your manuscript unless you give them permission in writing.
Asking to have these provisions included in the contract should not give anyone heart burn. If it does, I'd sure like to know why.
The provision that you should not agree to is one that attempts to reserve copyright in the work done by the support professional until final payment for their services is made. Do not let your copyright be held hostage in a payment dispute. A separate dispute resolution clause should adequately address payment problems.
Beta Readers and Informal Agreements
Beta readers are usually volunteers, not paid professionals, and the arrangement is typically an informal one. The understanding between you and a beta reader does not have to be highly structured, but it should be in writing.
An email that includes the key elements of the agreement will do the trick. For instance, an email to a potential beta reader might look like this:
Thank you for agreeing to help me with my work by being a beta reader. I appreciate the time it will take and I am happy send you a copy of the book when it is published. I’ve attached a list of questions I’d like you to focus on while you read.
I have not shared the manuscript with many people and I ask that you keep it confidential and that you keep your comments and our conversations about it confidential. Please do not copy or share the story with anyone or on social media.
This work is my baby. It has been created and is owned by me. If I incorporate any of your suggestions, comments, or ideas into the final version, those will be owned by me as well. Once you’ve finished the beta read and given me your thoughts, I ask that you return the original manuscript and your notes to me [if in hard copy] or delete the digital files.
Does this work for you?
When your prospective beta reader replies with a "yes, that works," you can feel as though you’ve established an understanding that will protect unpublished work.
Managing expectations with contract language or in an email will give you a strong measure of confidence when it comes to releasing your work. Prepublication theft of a manuscript is rare and you can't control someone who is going to behave badly. But with a few key strokes, you can minimize the risk and determine who good working partners are.
Most Recent Update: August 1, 2019
Building a Creative Business?
Learn how to protect, monitor, and enforce your rights so you can turn your creative work into income. Become a member of the Creative Law Center today.