While the Internet has changed how you produce, publish and share the things you create, the Internet has not changed how you own the intellectual property rights behind the things you create. Copyright law is the same on the Internet as it is anywhere else, but the Internet has given rise to many copyright myths. This article will explore several common copyright myths and explain how copyright rules expose the myths are wrong.
Myth 1: The original author did not sign the work, mark the work with a circle c, register the work with the Library of Congress, or write some scary reservation of rights on the work; therefore, it must be in the public domain.
Wrong. There is no public domain. No international convention cultivates it. The works that belong to it are not listed in a comprehensive database in Geneva. The phrase “public domain” is shorthand for works whose copyright has lapsed or whose authors elected not to assert their copyright. The public domain is a useful concept that describes works without copyright protection.
An author can assert copyright protection on any work, regardless of attribution, marking or specifically reserving rights, even if she publishes her work on the Internet.
A copyright does not have to be in an author’s name. The Library of Congress allows registration of works under a pseudonym. A company can register works created by its employees under the company’s name. An author can register works in the name of a trust or other legal entity.
The second that you lift the brush from the last bold red triangle on your neo-expressionist abstract painting, you own the right to make copies of it. You do not have to mark it, register it or even sign it. Marking, signing, and copyright registration will help you enforce the rights you have but none of them give you the copyright. The rights are yours once the painting is complete, and they are yours to keep or to give away.
Myth 2: I am only using a small part of a much larger work so my use does not infringe the author’s copyright.
You can use so small a part of a larger work and not infringe a copyright. It is not clear, however, how much you can use. There is no 10%, 8%, or 2% rule.
For example, someone wrote the directions on the back of your shampoo bottle. The problem is that there are only so many ways to say wash, rinse and repeat. You could use nearly all of the shampoo instructions without infringing the copyright. In legal terms, shampoo instructions are not very expressive and the instructions’ author likely could not protect much more than the exact copying of the instructions. As long as you do not take all of it, you would not likely infringe the author’s copyright.
A poem, on the other hand, is very short and very expressive. If you take a single couplet, line, or even a few words from a poem you may be taking the most expressive part of the work. Taking just a tiny amount of the poem may serve as infringement.
If you want a simple rule for using a small part of an existing work then get permission. Ask the original author; it is the clearest way to make sure your use is not infringement.
Myth 3: I am using the work to teach, educate, or otherwise benefit the public, so my use is fair use.
Fair use is a very specific thing. Copyright law does not grant fair use to just any socially useful activity. If you buy a workbook to teach preschoolers to read, photocopy each page 20 times, and hand it out to the class of children that do not have access to high-quality preschool, then you are doing a great social good. You are also violating the workbook author’s copyright. Fair use is more than promoting the social good—it is particular ways to promote the social good.
One example is news reporting. A famous photograph showing a newsworthy event may be the only way to convey to the general public what happened at the newsworthy event. It is not infringement to use the photograph to report on an event. It would, however, be infringement to use the photograph in an advertisement or in an online music video that promotes the news service.
Another is scholarship. If you are studying the historical context of sociological impact of a work of art then it is not infringement to reproduce the work. The Internet has complicated what constitutes scholarship. In the past, publication of such scholarship would almost entirely be in scholarly journals or at academic conferences. Now, individuals can post their own scholarship online or even through social media.
What does copyright mean if authors cannot assert their rights against infringers? Fair use admits infringement but argues that the social good behind the infringement is fair. If you are asserting the defense, then go the extra mile. If you are going to claim that your use of a photograph is news reporting, publish it in a Twitter feed where you regularly post topical news stories or break your own news. If you are going to claim that your remix of a popular pop song is a critical commentary, then post it in a forum frequented by professional pop culture critics.
Context is incredibly important. Do everything that you can to make your use of the work look like one of the recognized fair use defenses to infringement.
Creating, sharing, and consuming media on the Internet may be easier than ever before, but copyright facts are still the same. The biggest myth of all is that copyright on the Internet is somehow different. By dispelling these common three myths, you can share, copy, and link to others’ works in a way that is respectful of their rights.
Have a copyright question? Talk to a lawyer through the LegalZoom business legal plan. If you have a work you’d like to register, fill out our online questionnaire and LegalZoom will complete and file your copyright application with the U.S. Copyright Office.
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