Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A 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 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 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 should believe: 1. THE “POOR MAN’S COPYRIGHT” This cockeyed theory has lasted for a very long time and is surprisingly popular with freelance writers. All too often authors tell me that, although they have not filed with the U.S. Copyright Office, they have the protection of a “poor man’s copyright.” The myth is that an author can protect his novel, his screenplay, his poetic song cycle by mailing himself a copy of that work and then preserving, but not opening, the envelope when he receives it in the mail. Let me assure you that this is a waste of an envelope, a stamp, and a trip to the post office. Mailing yourself a copy of your work has no legal effect whatsoever. The only way to register a copyright is to file an application with the Copyright Office. This leads us to Myth No. 2. 2. THE “REGISTRATION ISN’T NECESSARY” THEORY This is not exactly false, but it could certainly be characterized as shortsighted and ill-advised. It is true that under current law, registration with the Copyright Office is not required for works created after Jan. 1, 1978. Provided it is sufficiently creative and original, an author’s work is protected by federal copyright law as soon as the idea is “fixed in a tangible medium of expression.” This means that telling a friend, or a number of friends, about a great idea for a short story or screenplay does not guarantee any rights under copyright law. But as soon as the idea is expressed tangibly — for example, by writing it or painting it or filming it — the work is protected by copyright law. Then, if someone copies the work without getting permission, the author can assert infringement. 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.S.C. �411). 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. Without timely registration, the ill-used author cannot win statutory damages or attorney fees. Here is an all-too-common scenario: An author writes a story or a song. Someone copies and posts it on an Internet site without permission from the author, without compensation to the author, and without attribution. The author discovers the copying and writes a letter demanding that the work be removed from the site. 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, bringing a lawsuit may fail any cost-benefit analysis. With statutory damages unavailable, the author must demonstrate an actual loss from the infringement to receive damages. Dan Brown or Kanye West probably could, but not everybody has that kind of track record. And with attorney fees unavailable, the author must pay his lawyer’s fees even if he wins. Therefore, although not technically required, copyright registration is highly recommended. At a filing fee of only $30, it’s affordable protection even for authors who are not writing best sellers. 3. THE 500-CD RULE This one I read about in The New York Times. An April 17, 2005, article, entitled “With This CD I Thee Wed,” 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, wedding CDs fall under the �fair use’ category of copyright law.” Or not. There is no fair-use exception for wedding CDs — or for birthday CDs or for bar mitzvah CDs, either. Imagine if couples marrying suggested to the caterer or the florist that since there were fewer than 500 guests, they did not need to pay for the food or the flower arrangements! (In fairness to the Times, I should mention that the paper did publish a correction.) Fair use may be asserted as an affirmative defense in certain circumstances — such as for news reporting, commentary, or criticism — but there are no bright-line rules that allow for songs to be copied on any particular number of CDs, then distributed, without a license or other authorization from the copyright owner. In other words, there is also no 200-CD rule and no 100-CD rule and no 50-CD rule. 4. THE “TWO-THIRDS” RULE This fractional fiction is another attempt to draw a bright line between legal and illegal borrowing from pre-existing works. The “rule” states that if two-thirds of a work is original, then the author may copy the remaining one-third from other sources without asking permission. But there is no such bright line. Indeed, there is very little predictability in what “fair use” covers. The equitable doctrine of fair use was first developed by the courts and later codified (at 17 U.S.C. �107) as four nonexclusive factors to be considered in each specific case. The Supreme Court has provided some guidance — read, for example, the discussion of fair use in Campbell v. Acuff-Rose Music (1994) in the context of 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman.” But application of the four factors varies from case to case. 5. THE 200-WORD LIMIT Another imaginative take on fair use, this “rule” asserts that copying up to 200 words of text, any text, is allowable without seeking permission. No such luck. Indeed, the Supreme Court in Harper & Row, Publishers Inc. v. Nation Enterprises (1985) rejected The Nation magazine’s fair-use defense despite the fact that it had used only 300 words verbatim from a 200,000-word unpublished manuscript of former President Gerald Ford’s memoirs. 6. THE “30 SECONDS OF MUSIC” CUTOFF Yet another “rule” attempting to quantify permissible copying, this one states that up to 30 seconds of music can be borrowed without obtaining permission. You know the mantra: No bright lines for fair use. On the one hand, the U.S. Court of Appeals for the 6th Circuit in Bridgeport Music Inc. v. Dimension Films (June 2005) found that a filmmaker’s repeated sampling of two seconds of a copyrighted sound recording constituted infringement. On the other hand, the U.S. District Court for New Hampshire held in Keep Thomson Governor Committee v. 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. 7. THE “USE (D) FOR DRAWINGS” RULE This admonition actually has some basis in fact. Placing the symbol (D) on a work is a recognized form of copyright notice, but not for all drawings and designs, or even for all technical drawings. It is only used for vessel hull designs, as provided by the Digital Millennium Copyright Act (17 U.S.C. �1306). Generally, when drawings or designs are sufficiently original and creative to receive copyright protection, the correct notice is the better-known symbol ©. 8. THE “GO AHEAD IF THE AUTHOR’S VERY DEAD” EXCEPTION Many works created by authors who died years ago certainly are in the public domain. But death isn’t the only factor to consider. It is generally safe to copy the works of authors who have been dead for a very long time. The plays of William Shakespeare and the novels of Jane Austen are definitely in the public domain. 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. 1, 1978, endures for the life of the author plus 70 years (17 U.S.C. �302). Thus, the books of the living Norman Mailer and the recently dead Hunter S. Thompson are protected and will be for some time. But for many works that existed before the enactment of the current law, it can be tricky to calculate just how long copyright lasts. Due to the Sonny Bono Copyright Term Extension Act, protection for works created before 1978 can extend up to 95 years from first publication (17 U.S.C. �304). This means that some of the novels of F. Scott Fitzgerald and Ernest Hemingway, who arguably have been dead for a very long time, are still under copyright protection. More complications can arise in relation to specific editions of works. For example, although “Romeo and Juliet” is in the public domain, a particular edition with helpful footnotes, an introduction, and explanatory essays may be protected by copyright. You may copy, “O Romeo, Romeo! wherefore art thou Romeo?” but not the more recent commentary. Translations may also present complications. Jean Brillat-Savarin wrote The Physiology of Taste in 1825 and died the following year, so this work is in the public domain. But M.F.K. Fisher translated the book into English in 1949, and a new translation by Fayette Robinson was published in 2004. You may freely copy the original French version, but both translations are protected by copyright. Similarly, Ludwig van Beethoven has been dead since 1827, so his works are in the public domain. But a sound recording made rather more recently by the National Symphony Orchestra is not. This means you may play a Beethoven sonata on your piano, but you cannot copy a sound recording of someone else’s recent performance of that sonata without authorization from the recording company. 9. THE “NEW MEDIUM IS A GREEN LIGHT” RULE This “rule” is not all myth, either. Whether there has been transformation of the original work, and not just mechanical reproduction, is considered by courts in determining if there has been infringement and if there is a fair-use defense. The Supreme Court noted in the Acuff-Rose case that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” More recently, the 9th Circuit in Kelly v. Arriba Soft Corp. (2003) found that an Internet search engine’s reduction of a photographer’s work to low-resolution thumbnail images was sufficiently transformative. But simply translating a work from one medium to another is generally not enough. When a literary work is transformed into a film, or a poem is set to music, the author of the new work must seek authorization from the author of the underlying work. You can be sure that the producers of the movies based on the Harry Potter books obtained (and paid handsomely for) J.K. Rowling’s permission. Other transformations do fall under fair use. One famous example is Andy Warhol’s paintings of Campbell soup cans. When Warhol took small-scale, three-dimensional consumer products, which are seen in supermarkets and kitchens, and made large-scale, two-dimensional artwork, which is exhibited in galleries and museums, his works were accepted as noninfringing. The artist transformed the underlying material enough to avoid an infringement action. But Warhol is the exception, not the rule. Generally, it is necessary to get permission before any creative effort to transform an existing work into another medium. In fact, it is interesting to note how the Warhol Foundation currently handles derivative works based on the soup-can paintings. The foundation grants licenses to parties to make posters, T-shirts, etc. that include a reproduction of one of the paintings. The foundation also refers those parties to the Campbell Soup Co. so that they can obtain licenses from Campbell to produce such derivative works. 10. THE “PARODY NOT PROHIBITED” RULE This “rule” contains a significant element of truth. Parody, like criticism and news reporting, is often recognized as fair use. But the parody must be about the underlying work and not just created in the same style as the underlying work. That is, the original work must be the subject of the parody. For instance, when the artist Jeff Koons made a sculptural work, “String of Puppies,” based on a photograph by Art Rogers, he was held to have infringed. The 2nd Circuit in Rogers v. Koons (1992) found that even if Koons’ work could be characterized as satire or parody, 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. Similarly, when an author created a book about the O.J. Simpson trial in the style of children’s book “The Cat in the Hat,” the 9th Circuit in Dr. Seuss Enterprises LP v. Penguin Books U.S.A. (1997) upheld a preliminary injunction because, among other reasons, the subject of the parody was not the work of Theodore Geisel aka Dr. Seuss.
So let’s review: Authors and other copyright owners should register their works with the Copyright Office. If authors are sampling or otherwise borrowing from the work of others, they should seek permission, just as they would want other authors to ask permission of them. (Sometimes, good manners and the law are consistent.) Content users should take steps to clear rights before making use of existing works. 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. If there is any uncertainty as to whether something can be copied, inquiries should be made. Assuming that a particular appropriation will be considered fair use can be risky; one should obtain permission or seek legal advice. The Copyright Act is a strict liability statute. This means that following a rule that you believe to be true, but which turns out to be a myth, will not excuse you from liability for infringement. Under certain circumstances, you can plead “innocent infringement,” but even that only serves to reduce the amount of damages you owe. So forget the myths. It’s not the law just because it is written somewhere. Creators and content users need to know the real copyright rules — and follow them.
Janet Fries is counsel in the D.C. office of Drinker Biddle & Reath. Her practice is focused on copyright, trademark, entertainment, and Internet law. Fries also serves on the board of directors of Washington Area Lawyers for the Arts. The author would like to thank Luna M. Samman, an associate at Drinker Biddle & Reath, for her research assistance.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.