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

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

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