Common Copyright Myths & “Don’ts”

Of the areas we focus our practice on, perhaps none is more misunderstood than copyright law.  That’s unfortunate, because copyright is the area of IP law that everyday individuals are most likely to run afoul of.  With that in mind, we thought it would be helpful to point out some of the most common myths/misconceptions surrounding copyrights.  But first….

The Basics

Copyright law protects original works of creative authorship that are fixed in a tangible medium.  The kinds of works that can be protected are varied, and include the “traditional“ (for example, books, music, paintings and computer software) to the less obvious (the design of a building).  What’s important to note is that copyright does NOT protect an “idea” – it protects a particular expression of the idea.  When a particular expression is also functional, or cannot be separated (not necessarily physically) from the underlying idea, no copyright can be obtained.

Upon fixation, copyright automatically accrues, although registration of such right is a prerequisite to taking court action to enforce it.  Of the common “myths” we have encountered, the majority relate to three areas.

Myth One – Authorship

In copyright, the “Author” can be someone other than the individual(s) that created a work.  The term “work for hire” (WFH) is frequently thrown about, to describe the situation where a copyright is owned not by the creator, but by the individual or company that hired them (the employer is then considered the “Author”).  Simply calling something a “work for hire,” however, doesn’t mean it is.  Unless creation of a work occurs under particular circumstances set forth in the Copyright Act, it is not a WFH and the copyright is owned by the creator (who is deemed to be the “Author”).  When in doubt, a separate copyright assignment should always be executed by the parties.  Finally, it’s important to note that a single work may contain multiple copyrights – a recorded song may have separate copyrights in each of the music, lyrics, and recording.

Myth Two – Use

Another commonly-held misconception regarding copyrights is that “Since I bought XYZ, I can do what I want with it.”  A distinction should be made here between (1) ownership of a physical object and (2) ownership of copyrighted material fixed in that object.

An easily-understood example is a CD (remember those?) of music.  When you buy a CD, you generally can do what you want with the CD itself – you can give it to a friend, you can sell it, you can destroy it. What you generally can’t do is violate one of the exclusive rights granted to the owner of the copyright in the material contained on the CD.  For example, without specific permission to do so you generally can’t (1) sell your friend a copy of the CD and keep the original or (2) play the music on a CD at a public event.

Myth Three – Fair Use

Thanks, Internet.  Just because something is posted on the Internet, that doesn’t mean it’s not protected by copyright, or is in the “public domain.”  While the concept of “fair use” existed long before the Internet, the ease with which the Internet facilitates sharing (both lawful and otherwise) of material subject to copyright protection has brought the term into our everyday lexicon.  Unfortunately, the doctrine’s applicability is not as broad as the public may have been led to believe.

The main thing to know about fair use is that it only applies to situations where certain statutory factors weigh in favor of the doctrine’s application.  Those factors are: (1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

Including a “disclaimer” in your post’s comments that “this is fair use, no copyright claimed” does NOT mean the doctrine protects your use – if anything, you just admitted that you knowingly copied someone else’s protected work!  And don’t get us started on those “by me posting this on my page, I expressly don’t give Facebook permission to …” e-mails that keep making the rounds…