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).

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

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

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

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