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

IP
October 10, 2005
SUPPLEMENT TO LEGAL TIMES

Myths
of

Creation
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

A

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

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

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

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