The subject of copyright law can seem mysterious or confusing to most who are not in the industry. There are a few things to remember that can take the uncertainty out of the situation, and make you feel comfortable and confident that not only are you doing the right thing from an ethical point of view, but more specifically, not breaking the law by committing copyright infringement. So, I’ve put together a list of the 7 common misconceptions about copyright laws.
Before I get into this list, here’s my disclaimer: I am not a lawyer, nor do I claim to be, and most importantly this is not legal advice.
- One of the things that seem to surprise people the most about copyright law is that as of 1989, copyright is automatic. That means that anything written or recorded has a copyright, regardless of whether the copyright symbol appears or even if the copyright has been registered. Though it is always a good idea to register your work with the copyright office in Washington D.C. (a branch of the Library of Congress), to ease in the process of pressing charges if you chose to do so. Up to $150,000 may be awarded to the holder as well as possible reimbursement for cost of legal representation. Meaning, if you write an article or record a song, that is your intellectual property automatically, and you could potentially sue someone for using it without your permission.
- However, copyright law excludes ideas, facts and data. This can seem a little tricky at times. The idea behind the copyright protected work is not protected, just the work itself. Also, citing one’s source is not a substitute for getting permission from the copyright holder. Anything that’s published by the United-State’s government is not copyright protected, and may be referenced and copied as many times as one would like. Another point that sometimes can be surprising is that logos, tag lines, and product lines cannot be protected by copyright laws, but instead are protected by trademark law.
- This leads me to another interesting fact about copyright law. One may assume that it’s okay to take an article from the internet, or photocopied from another source, and distribute it as research to a client, in an in-house newsletter to fellow employees, or as reference in a meeting. This is also copyright infringement. Permission must be given for use of any written or recorded work, because indirectly, one is receiving financial gain from use of this work and therefore depriving the holder of the copyright the financial compensation they may have requested/deserved.
- Copyright is not forever, though it can seem to last a significant amount of time. When Queen Anne wrote the first copyright law in 1710, copyright protection was to last 28 years. To be fair, expected life span was a tad lower at the time and this may have been perceived as being a considerable amount of time. As copyright law made its way to the U.S., the time span expanded over the years. Finally resulting in the law today (since 1998), which is the lifetime of the author, plus 70 years. This can get tricky if the author is a company. Companies can be authors because they are, in fact, legal entities. In those cases, the copyright is in effect until 70 years after the demise of the company. So, forget about remaking any Disney movies any time soon.
- In the beginning, copyright law only protected written pieces. But in 1884, there was the case regarding a photo of famed author and playwright Oscar Wilde. The Supreme Court ruled that because of composition and lighting choices by the artist, photos are now subject to copyright as well. This goes for all artistic works, and has been expanded to include recorded audio. This means, not only can you not record a song off the radio and sell it for your own financial gain, but you also cannot perform publicly such works without permission. Permission is the key to all copyright law. Though, the Court has ruled that if permission is denied, that does not necessarily exclude this work from Fair Use. Which brings me to another misunderstood term.
- What is Fair Use, anyway? Items can be considered Fair Use if they are news, commentary, satire, used for education or academic research. However, there are a lot of gray areas when it comes to Fair Use in copyright law. There are four elements to consider:A – Purpose and Character: What are you using it for and will this result in your financial gain and/or the authors financial loss? If you stand to make money using someone else’s intellectual property, the chances are not good that it qualifies.
B – Nature of the work: If the work is completely factual it stands a better chance of being considered Fair Use than if you’re borrowing someone else’s creative and artistic works.
C – Amount and Substantiality: How much of the work are you borrowing? If it is a large amount, fair use will probably be denied. This goes the same for if the part that you wish to borrow is the main idea, or soul of the work, even if it’s a small amount.
D – Finally, the effect of the use on the market: As, I mentioned before, if your use of the work will result in either your financial gain or economic loss for the copyright holder, there is slim to no chance the work is Fair Use.
- Now, for what seems to be the most misunderstood portion of copyright law: Public Domain. People often confuse it with Fair Use, but the two are very different. Another common misconception and possibly the most misinterpreted idea about this law, is that people often think that if a work is publicly available, that it is considered Public Domain. If you go to a website, or do a Google image search to find an image, chances are the images are not Public Domain, even if no copyright symbol is present, because as I said before, copyright is automatic. So, then what is Public Domain? Copyright law states that Public Domain only applies to works in which the copyright has run out (lifetime plus 70 years) or if the work has never been protected by copyright law.