Ten Copyright Myths

Ten Copyright Myths

by Donna Ray Berkelhammer

Many people do not understand how work product is protected and what you can do with other people's work.  Let's take a look at 10 copyright myths:

1.  I have to register my work to get a copyright.

2.  I can get a copyright by mailing my work to myself.

Copyrights attach once an original work is "fixed" in a "tangible"  medium›. So once the photographer takes the picture, the author writes the blog, the graphic artist posts the logo, they have rights in the work.  These include the right to copy, distribute, display, perform and make derivative works.  Works on the internet are the protected work product of the author, and using it without permission may be copyright infringment. Just posting something online does not automatically put it in the public domain or make it free for the taking.

Federal registration, however,  gives some pretty powerful benefits - easier ways to calculate damages, presumed validity and ability to sue.

Mailing a copy of your work  to yourself gives no rights. It may prove date of creation, but not well.

3.  If it is on the Internet or emailed to me I can use it freely.

This can get you into big trouble, fast.  Just ask Judith Griggs, former editor of a former online magazine called Cooks Source.  Not every author is just so flattered that you are giving them free exposure that  they will not enforce their copyrights.  Owners who post content on the Internet are not giving up their ownership or rights or putting their content into the public domain.

4.  If there is no notice, there is no copyright.

This used to be true, but since 1989, US copyright law does not require notices.  Assume work you find, particularly online, is copyrighted by others, whether or not it has the © symbol, or says "All Rights Reserved."

5. I can use whatever I want so long as I credit the author.

This is true in some situations.  Some commercial sites have easy to use licenses for graphic arts or photographic images that ask only for credit to the author (Creative Commons, for example).  Other authors are not pleased to have free advertising or exposure from your use and attribution.  When in doubt, ask the owner.

6. I can take someone else's ideas or characters and create my own work.

While it is true that copyright protects the expression of an idea, not the idea itself, owners are given the right to make derivative or adaptive works of their original works.  Using other people's characters is not permissible, but perhaps you could write a story about a coastal resort town that doesn't want to warn people about shark attacks so as not to ruin the summer tourism season without infringing Peter Benchley's rights in "Jaws".  A lot of "fan fiction" violates copyrights, but often authors don't enforce their rights for various reasons.

7. If I use 10% or less, I can copy it.

8. If I don't charge for it, I can use it.

9. I can use it freely because I'm using it for educational purposes.

10. I can use it because I am a non-profit.

These statements all refer to the "fair use"exception to US copyright infringement.  "Fair Use" is a defense to a claim of copyright infringement, and does not confer any rights to use other people's work.  It is a pretty limited exception and is one of the most misunderstood areas of copyright law.

The "fair use" exemption  was intended  to allow commentary, parody, news reporting, research and education about copyrighted works without the permission of the author. Fair use is when you use a snippet of someone else's work to make a point or critique it.  Fair use does not occur when a teacher copies a whole chapter in a book to use for "educational purposes" or you copy the first three paragraphs of an online newspaper article because you are too lazy to investigate the facts and write your own story.  Fair use is determined by evaluating four criteria on a sliding scale:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
  • The effect of the use upon the potential market for, or value of, the copyrighted work.

Even if you have a strong fair use case, you may go broke or decide to settle before the matter is resolved in court.

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