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