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

© 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).

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

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

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

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