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October 10, 2005
SUPPLEMENT TO LEGAL TIMES
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
© 2005 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times (1-800-933-4317 • LTsubscribe@alm.com • www.legaltimes.com).
” 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. but not everybody has that kind of track record. The only way to register a copyright is to file an application with the Copyright Office. there is very little predictability in what “fair use” covers. ) Fair use may be asserted as an affirmative defense in certain circumstances—such as for news reporting. this “rule” asserts that copying up to 200 words of text. 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. article.” Or not. wedding CDs fall under the ‘fair use’ category of copyright law.” This means that telling a friend. is allowable without seeking permission. copyright registration is highly recommended. The equitable doctrine of fair use was first developed by the courts and later codified (at 17 U. it’s affordable protection even for authors who are not writing best sellers. . The Supreme Court has provided some guidance—read. and without attribution. There is no fair-use exception for wedding CDs—or for birthday CDs or for bar mitzvah CDs. his screenplay. 1. if someone copies the work without getting permission.” The myth is that an author can protect his novel. they have the protection of a “poor man's copyright. Without timely registration. there is also no 200-CD rule and no 100CD rule and no 50-CD rule. Someone copies and posts it on an Internet site without permission from the author. In other words.S. The “Poor Man’s Copyright” attorney fees unavailable. All too often authors tell me that. the author must pay his lawyer’s fees even if he wins. 1978. And with 2. without compensation to the author. Dan Brown or Kanye West probably could. although not technically required. a stamp. Let me assure you that this is a waste of an envelope.C. Here is an all-too-common scenario: An author writes a story or a song. about a great idea for a short story or screenplay does not guarantee any rights under copyright law. Provided it is sufficiently creative and original. the author must demonstrate an actual loss from the infringement to receive damages. Imagine if couples marrying suggested to the caterer or the florist that since there were fewer than 500 guests. §107) as four nonexclusive factors to be considered in each specific case. The “rule” states that if two-thirds of a work is original. and a trip to the post office. then the author may copy the remaining one-third from other sources without asking permission.This cockeyed theory has lasted for a very long time and is surprisingly popular with freelance writers. commentary. This leads us to Myth No. Therefore. or a number of friends. The author discovers the copying and writes a letter demanding that the work be removed from the site. 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. entitled “With This CD I Thee Wed. 2. any text. either. 4.S. But as soon as the idea is expressed tangibly—for example. The “Registration Isn’t Necessary” Theory This is not exactly false. 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. This one I read about in The New York Times. without a license or other authorization from the copyright owner. registration with the Copyright Office is not required for works created after Jan. but it could certainly be characterized as shortsighted and ill-advised. The “Two-Thirds” Rule The 200-Word Limit Another imaginative take on fair use. At a filing fee of only $30. an author's work is protected by federal copyright law as soon as the idea is “fixed in a tangible medium of expression. then distributed. Mailing yourself a copy of your work has no legal effect whatsoever. The 500-CD Rule This fractional fiction is another attempt to draw a bright line between legal and illegal borrowing from pre-existing works. for example. Pretty Woman.C. With statutory damages unavailable.S. the discussion of fair use in Campbell v.” But application of the four factors varies from case to case. §411). Acuff-Rose Music (1994) in the context of 2 Live Crew’s parody of Roy Orbison’s “Oh. Copyright Office. 3. 2005. but not opening. the envelope when he receives it in the mail. the ill-used author cannot win statutory damages or attorney fees. or criticism—but there are no bright-line rules that allow for songs to be copied on any particular number of CDs. they did not need to pay for the food or the flower arrangements! (In fairness to the Times. I should mention that the paper did publish a correction. 5. by writing it or painting it or filming it—the work is protected by copyright law. It is true that under current law. 1. But there is no such bright line. his poetic song cycle by mailing himself a copy of that work and then preserving. although they have not filed with the U. Indeed. An April 17. the author can assert infringement. Then.
On the other hand. 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. Jean BrillatSavarin wrote The Physiology of Taste in 1825 and died the following year. But simply translating a work from one medium to another is generally not enough. and made large-scale. It is only used for vessel hull designs. his works were accepted as 9. . When a literary work is transformed into a film.C. You may freely copy the original French version. 7. Publishers Inc. the Supreme Court in Harper & Row. But death isn’t the only factor to consider.No such luck. Thompson are protected and will be for some time. v.S. Yet another “rule” attempting to quantify permissible copying.K. which are seen in supermarkets and kitchens. On the one hand. when drawings or designs are sufficiently original and creative to receive copyright protection.” More recently. the U. Dimension Films (June 2005) found that a filmmaker’s repeated sampling of two seconds of a copyrighted sound recording constituted infringement. But for many works that existed before the enactment of the current law. The plays of William Shakespeare and the novels of Jane Austen are definitely in the public domain. Thus. the less will be the significance of other factors. the books of the living Norman Mailer and the recently dead Hunter S. The “30 Seconds of Music” Cutoff The “Use (D) For Drawings” Rule This admonition actually has some basis in fact. Whether there has been transformation of the original work. You can be sure that the producers of the movies based on the Harry Potter books obtained (and paid handsomely for) J. the U.F. Court of Appeals for the 6th Circuit in Bridgeport Music Inc. either. The Supreme Court noted in the Acuff-Rose case that “the more transformative the new work. This means you may play a Beethoven sonata on your piano. or a poem is set to music. §1306). Romeo! wherefore art thou Romeo?” but not the more recent commentary. More complications can arise in relation to specific editions of works. For example. which is exhibited in galleries and museums. and a new translation by Fayette Robinson was published in 2004. Ludwig van Beethoven has been dead since 1827. so his works are in the public domain. Fisher translated the book into English in 1949. Similarly. 1978. endures for the life of the author plus 70 years (17 U. a particular edition with helpful footnotes. two-dimensional artwork. v. District Court for New Hampshire held in Keep Thomson Governor Committee v. is considered by courts in determining if there has been infringement and if there is a fair-use defense. This means that some of the novels of F.S. the author of the new work must seek authorization from the author of the underlying work. and not just mechanical reproduction. or even for all technical drawings. You may copy. Indeed. 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. but both translations are protected by copyright. although “Romeo and Juliet” is in the public domain. One famous example is Andy Warhol's paintings of Campbell soup cans. §302). it can be tricky to calculate just how long copyright lasts. an introduction. the 9th Circuit in Kelly v.000word unpublished manuscript of former President Gerald Ford’s memoirs. who arguably have been dead for a very long time. 6. Other transformations do fall under fair use.S. “O Romeo. §304). as provided by the Digital Millennium Copyright Act (17 U. Rowling's permission. 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. and explanatory essays may be protected by copyright. You know the mantra: No bright lines for fair use. (2003) found that an Internet search engine’s reduction of a photographer’s work to low-resolution thumbnail images was sufficiently transformative. Generally. It is generally safe to copy the works of authors who have been dead for a very long time. but not for all drawings and designs. like commercialism.C. three-dimensional consumer products.K. Arriba Soft Corp. Scott Fitzgerald and Ernest Hemingway. the correct notice is the better-known symbol ©.S. 1.C. Placing the symbol (D) on a work is a recognized form of copyright notice. The “Go Ahead If The Author’s Very Dead” Exception This “rule” is not all myth.S. so this work is in the public domain. 8. The “New Medium Is a Green Light” Rule Many works created by authors who died years ago certainly are in the public domain. protection for works created before 1978 can extend up to 95 years from first publication (17 U. but you cannot copy a sound recording of someone else’s recent performance of that sonata without authorization from the recording company. When Warhol took small-scale. Due to the Sonny Bono Copyright Term Extension Act. 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. that may weigh against a finding of fair use. are still under copyright protection. Translations may also present complications. But M.
Penguin Books U. If authors are sampling or otherwise borrowing from the work of others. Under certain circumstances. will not excuse you from liability for infringement. So forget the myths.A.S.” but even that only serves to reduce the amount of damages you owe. The artist transformed the underlying material enough to avoid an infringement action. Her practice is focused on copyright.J. it is necessary to get permission before any creative effort to transform an existing work into another medium.noninfringing. office of Drinker Biddle & Reath. The 2nd Circuit in Rogers v. 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. just as they would want other authors to ask permission of them.) Content users should take steps to clear rights before making use of existing works. Similarly. Tshirts. is often recognized as fair use. they should seek permission. This means that following a rule that you believe to be true. She can be reached at janet. The “Parody Not Prohibited” Rule So let's review: Authors and other copyright owners should register their works with the Copyright Office. because. It’s not the law just because it is written somewhere. etc. The Copyright Act is a strict liability statute. In fact. The foundation also refers those parties to the Campbell Soup Co. Simpson trial in the style of children’s book “The Cat in the Hat. Koons (1992) found that even if Koons' work could be characterized as satire or parody. that include a reproduction of one of the paintings. for her research assistance. so that they can obtain licenses from Campbell to produce such derivative works. (1997) upheld a preliminary injunction 10. trademark. But the parody must be about the underlying work and not just created in the same style as the underlying work. But Warhol is the exception. The author would like to thank Luna M. among other reasons. when the artist Jeff Koons made a sculptural work. he was held to have infringed. like criticism and news reporting. Assuming that a particular appropriation will be considered fair use can be risky.fries@dbr. but which turns out to be a myth. the original work must be the subject of the parody. an associate at Drinker Biddle & Reath. (Sometimes. 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. inquiries should be made. . Seuss Enterprises LP v. The foundation grants licenses to parties to make posters. “String of Puppies. Seuss. you can plead “innocent infringement.” based on a photograph by Art Rogers.com. That is. when an author created a book about the O. not the rule. Janet Fries is counsel in the D. Parody. This “rule” contains a significant element of truth.” the 9th Circuit in Dr. and Internet law. good manners and the law are consistent. entertainment. Generally. one should obtain permission or seek legal advice. For instance. Fries also serves on the board of directors of Washington Area Lawyers for the Arts. Samman. Creators and content users need to know the real copyright rules—and follow them. If there is any uncertainty as to whether something can be copied.C. the subject of the parody was not the work of Theodore Geisel aka Dr.
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