ARTICLE Ten Copyright Rules ... Janet Fries Legal Times 1005_v1 | Fair Use | Copyright Law Of The United States

Ten copyright ‘rules’ that still lead smart people astray.

October 10, 2005


great deal of information about copyright law is available in books, newspapers, and magazines; on the street; and over the Internet. While much of this information is reliable, some of it is should believe:

By Janet Fries

inaccurate—or only accurate when applied in specific circumstances. Worse, some of it is just flat-out wrong. But an odd thing has happened: Certain misinformation has


been repeated so often and with such convincing detail that it has acquired standing. Certain misinformation has apparently gained credence just by hanging around. Some copyright tales have become the legal equivalent of urban myths. And smart people are relying on these myths to their detriment. So, as a public service, I would like to debunk some of these myths. Here are 10 copyright legends that no one

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but it could certainly be characterized as shortsighted and ill-advised.” But application of the four factors varies from case to case. And with 2. article. or a number of friends. but not everybody has that kind of track record.” Or not. It is true that under current law. Here is an all-too-common scenario: An author writes a story or a song. an author's work is protected by federal copyright law as soon as the idea is “fixed in a tangible medium of expression.S. There is no fair-use exception for wedding CDs—or for birthday CDs or for bar mitzvah CDs. Acuff-Rose Music (1994) in the context of 2 Live Crew’s parody of Roy Orbison’s “Oh. The “Poor Man’s Copyright” attorney fees unavailable. Without timely registration. or criticism—but there are no bright-line rules that allow for songs to be copied on any particular number of CDs. the author must demonstrate an actual loss from the infringement to receive damages. his screenplay. for example. Pretty Woman. a stamp. the discussion of fair use in Campbell v.” The myth is that an author can protect his novel. if someone copies the work without getting permission. And certain valuable remedies are not available unless the registration was filed within three months of the first publication of the work or prior to the infringement. bringing a lawsuit may fail any cost-benefit analysis. this “rule” asserts that copying up to 200 words of text. Let me assure you that this is a waste of an envelope. and without attribution. This leads us to Myth No. the envelope when he receives it in the mail. commentary. then distributed. Copyright Office. his poetic song cycle by mailing himself a copy of that work and then preserving. Indeed.This cockeyed theory has lasted for a very long time and is surprisingly popular with freelance writers. they did not need to pay for the food or the flower arrangements! (In fairness to the Times. The “Registration Isn’t Necessary” Theory This is not exactly false. but not opening. In other words. But an author or other copyright owner cannot actually sue an infringer until an application for registration has been filed with the Copyright Office (17 U.” This means that telling a friend. the author can assert infringement. The “rule” states that if two-thirds of a work is original. 2. although they have not filed with the U. Imagine if couples marrying suggested to the caterer or the florist that since there were fewer than 500 guests. they have the protection of a “poor man's copyright. Then. Therefore. §411).C. the ill-used author cannot win statutory damages or attorney fees. . The only way to register a copyright is to file an application with the Copyright Office. and a trip to the post office. Mailing yourself a copy of your work has no legal effect whatsoever. although not technically required. 1. But there is no such bright line. But as soon as the idea is expressed tangibly—for example.C. This one I read about in The New York Times. either. there is very little predictability in what “fair use” covers. The “Two-Thirds” Rule The 200-Word Limit Another imaginative take on fair use. The equitable doctrine of fair use was first developed by the courts and later codified (at 17 U. At a filing fee of only $30. §107) as four nonexclusive factors to be considered in each specific case. without compensation to the author. it’s affordable protection even for authors who are not writing best sellers. The 500-CD Rule This fractional fiction is another attempt to draw a bright line between legal and illegal borrowing from pre-existing works. Provided it is sufficiently creative and original. With statutory damages unavailable. copyright registration is highly recommended. 1978. then the author may copy the remaining one-third from other sources without asking permission. ) Fair use may be asserted as an affirmative defense in certain circumstances—such as for news reporting. Dan Brown or Kanye West probably could.S. is allowable without seeking permission. by writing it or painting it or filming it—the work is protected by copyright law. The copier either ignores the letter or responds by saying “Go sue me!” The savvy copier knows that unless the author has filed a timely registration. An April 17. any text. 2005. 1.” offered this astonishing advice for creating CD mixes as wedding favors: “As long as couples don't make more than 500 copies or charge for them. 3. registration with the Copyright Office is not required for works created after Jan. without a license or other authorization from the copyright owner. there is also no 200-CD rule and no 100CD rule and no 50-CD rule. The author discovers the copying and writes a letter demanding that the work be removed from the site.S. 5. The Supreme Court has provided some guidance—read. Someone copies and posts it on an Internet site without permission from the author. I should mention that the paper did publish a correction. about a great idea for a short story or screenplay does not guarantee any rights under copyright law. All too often authors tell me that. entitled “With This CD I Thee Wed. 4. wedding CDs fall under the ‘fair use’ category of copyright law. the author must pay his lawyer’s fees even if he wins.

that may weigh against a finding of fair use.C.S. The Supreme Court noted in the Acuff-Rose case that “the more transformative the new work. and a new translation by Fayette Robinson was published in 2004. Citizens for Gallen Committee (1978) that one political campaign’s use of 15 seconds of its opponent’s campaign song in a political advertisement constituted fair use. Ludwig van Beethoven has been dead since 1827. §1306). “O Romeo. One famous example is Andy Warhol's paintings of Campbell soup cans. this one states that up to 30 seconds of music can be borrowed without obtaining permission. But a sound recording made rather more recently by the National Symphony Orchestra is not.K. Thus. The plays of William Shakespeare and the novels of Jane Austen are definitely in the public domain. On the one hand. When a literary work is transformed into a film. Nation Enterprises (1985) rejected The Nation magazine's fair-use defense despite the fact that it had used only 300 words verbatim from a 200.C.S. And we can assume that works by living authors and authors who just recently died are still protected because the current law is clear: Copyright protection for works created by an individual author on or after Jan. More complications can arise in relation to specific editions of works. like commercialism. You know the mantra: No bright lines for fair use. Indeed. But death isn’t the only factor to consider. Other transformations do fall under fair use. But for many works that existed before the enactment of the current law. Yet another “rule” attempting to quantify permissible copying. the Supreme Court in Harper & Row.No such luck. and not just mechanical reproduction. But M. 1. v. two-dimensional artwork.” More recently.000word unpublished manuscript of former President Gerald Ford’s memoirs. or a poem is set to music. but you cannot copy a sound recording of someone else’s recent performance of that sonata without authorization from the recording company. so this work is in the public domain. You may freely copy the original French version. Placing the symbol (D) on a work is a recognized form of copyright notice. Court of Appeals for the 6th Circuit in Bridgeport Music Inc. §304). On the other hand. Translations may also present complications.S. and made large-scale. three-dimensional consumer products. an introduction.F. Fisher translated the book into English in 1949. although “Romeo and Juliet” is in the public domain. is considered by courts in determining if there has been infringement and if there is a fair-use defense. the author of the new work must seek authorization from the author of the underlying work. 6. You can be sure that the producers of the movies based on the Harry Potter books obtained (and paid handsomely for) J. but not for all drawings and designs. 1978. This means that some of the novels of F. so his works are in the public domain. a particular edition with helpful footnotes. Due to the Sonny Bono Copyright Term Extension Act. his works were accepted as 9. or even for all technical drawings.K. Whether there has been transformation of the original work. For example. District Court for New Hampshire held in Keep Thomson Governor Committee v. which is exhibited in galleries and museums. It is generally safe to copy the works of authors who have been dead for a very long time.S. v. You may copy. the U. When Warhol took small-scale. as provided by the Digital Millennium Copyright Act (17 U. The “Go Ahead If The Author’s Very Dead” Exception This “rule” is not all myth. either. protection for works created before 1978 can extend up to 95 years from first publication (17 U. who arguably have been dead for a very long time. 7. the U. (2003) found that an Internet search engine’s reduction of a photographer’s work to low-resolution thumbnail images was sufficiently transformative. §302). The “30 Seconds of Music” Cutoff The “Use (D) For Drawings” Rule This admonition actually has some basis in fact. are still under copyright protection. This means you may play a Beethoven sonata on your piano. Rowling's permission. Publishers Inc. Generally. the books of the living Norman Mailer and the recently dead Hunter S. Similarly. Scott Fitzgerald and Ernest Hemingway. the correct notice is the better-known symbol ©. Jean BrillatSavarin wrote The Physiology of Taste in 1825 and died the following year. the 9th Circuit in Kelly v. 8. and explanatory essays may be protected by copyright. when drawings or designs are sufficiently original and creative to receive copyright protection.C. which are seen in supermarkets and kitchens. Dimension Films (June 2005) found that a filmmaker’s repeated sampling of two seconds of a copyrighted sound recording constituted infringement.S. But simply translating a work from one medium to another is generally not enough. Arriba Soft Corp. It is only used for vessel hull designs. but both translations are protected by copyright. Thompson are protected and will be for some time. it can be tricky to calculate just how long copyright lasts. . The “New Medium Is a Green Light” Rule Many works created by authors who died years ago certainly are in the public domain. the less will be the significance of other factors. Romeo! wherefore art thou Romeo?” but not the more recent commentary. endures for the life of the author plus 70 years (17 U.

good manners and the law are consistent. The 2nd Circuit in Rogers v. But Warhol is the exception. like criticism and news reporting. If there is any uncertainty as to whether something can be copied.C. That is. Parody. office of Drinker Biddle & Reath. Generally.J. The foundation also refers those parties to the Campbell Soup Co. for her research assistance. you can plead “innocent infringement.S. “String of Puppies.” based on a photograph by Art Rogers. The author would like to thank Luna M. (1997) upheld a preliminary injunction 10. Under certain circumstances. is often recognized as fair use. just as they would want other authors to ask permission of them. In fact. Koons (1992) found that even if Koons' work could be characterized as satire or parody. that include a reproduction of one of the paintings. Penguin Books U. one should obtain permission or seek legal advice. Her practice is focused on copyright. Simpson trial in the style of children’s book “The Cat in the Hat.fries@dbr. Janet Fries is counsel in the D.noninfringing. Fries also serves on the board of directors of Washington Area Lawyers for the Arts. not the rule. (Sometimes. trademark. Assuming that a particular appropriation will be considered fair use can be risky. The “Parody Not Prohibited” Rule So let's review: Authors and other copyright owners should register their works with the Copyright Office. The foundation grants licenses to parties to make posters. This means that following a rule that you believe to be true. because. the subject of the parody was not the work of Theodore Geisel aka Dr. it was an infringement because the satire or parody in the work was directed at society in general and not specifically at the work of Rogers. it is interesting to note how the Warhol Foundation currently handles derivative works based on the soup-can paintings. Creators and content users need to know the real copyright rules—and follow them. when the artist Jeff Koons made a sculptural work. will not excuse you from liability for infringement. She can be reached at janet. The artist transformed the underlying material enough to avoid an infringement action. Seuss. when an author created a book about the O. among other reasons. it is necessary to get permission before any creative effort to transform an existing work into another medium.A. etc. But the parody must be about the underlying work and not just created in the same style as the underlying work. but which turns out to be a myth.) Content users should take steps to clear rights before making use of existing works. so that they can obtain licenses from Campbell to produce such derivative works. and Internet law. Similarly. an associate at Drinker Biddle & Reath. Samman. If authors are sampling or otherwise borrowing from the work of others.” the 9th Circuit in Dr. It’s not the law just because it is written somewhere. inquiries should be made. The Copyright Act is a strict liability statute. . This “rule” contains a significant element of truth. The fact that a work can be accessed from the Internet does not mean it is in the public domain or otherwise up for grabs. the original work must be the subject of the parody. So forget the myths. entertainment.” but even that only serves to reduce the amount of damages you he was held to have infringed. Seuss Enterprises LP v. For instance. Tshirts. they should seek permission.

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