Archive for February, 2007

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There are dozens of myths about copyright issues on the internet and the necessity of getting permission or licensing. Here are a select few – don’t make the mistake of believing them!

Myth #1: “I’m free to use the work – it doesn’t have a copyright notice on it, so it’s not copyrighted.”

For works published on or after March 1, 1989, the use of a copyright notice is optional. The fact that a work doesn’t have a copyright notice doesn’t mean that the work is not protected by copyright.

Myth #2: “I don’t need a license because I’m using only a small amount of the copyrighted work.”

It is true that “de minimis” copying (copying a small amount) is not considered copyright infringement, but it is rarely possible to tell where “de minimis” copying ends and copyright infringement begins. If you are copying, it is better to get permission or a license (unless fair use applies). You cannot escape liability for infringement by showing how much of the protected work you did NOT take.

Myth #3: “Since I’m planning to give credit to all authors whose works I copy, I don’t need to get permission.”

If you give credit to a work’s author, you are not a plagiarist, but attribution is not a defense to copyright infringement.

Myth #4: “My website will be a wonderful compliment to the copyright owner’s work, so I’m sure the owner will not object to my use of it.”

Don’t assume that a copyright owner will be happy to have you use his or her work. Even if the owner is willing to let you use the work, the owner will probably want to charge you a license fee.

Myth #5: “I don’t need a license because I’m going to alter the work I copy.”

You can’t escape liability for copyright infringement by altering or modifying the work you copy. If you copy and modify protected elements of a copyrighted work, you will be infringing the copyright owner’s modification right as well as the copyright.

Myth #6: “If I find something on the internet, it’s okay to copy it and use it without getting permission.”

While you are free to copy public domain material that you find on the internet, you should not copy copyrighted material without getting permission from the copyright owner, whether you find it online or elsewhere (books, CDs, etc.).

Myth #7: “Anyone who puts material on a Web server wants people to use that material, so I can do anything I want with material that I get from a Web server.”

Individuals and organizations put material on a Web server to make it accessible by others. They do not give up their copyright rights by putting material on a Web server. Also, the person who posted the material may not own it!

Myth #8: “It’s okay to copy material from a personal website without getting permission.”

Much of the material on websites – both personal and commercial – is protected by copyright. If you want to use something from someone else’s site, get permission – unless permission to copy is granted in the text of the website’s Terms of Use.

Myth #9: “It’s okay to use copyrighted material on my website as long as no one has to pay to visit my website.”

You need a license to copy and use the work in your website even if you won’t be charging people to view your website. (You may also need a public display license.)

Myth #10: “It’s okay to make other people’s copyrighted material available on my server as long as I don’t charge people anything to get the material.”

Copying and distributing copyrighted material without permission can be copyright infringement even if you don’t charge for the copied material. In addition, making material available for others to copy can be contributory infringement.

When You Don’t Need Permission Or A License

You don’t need permission or licencing to use a copyrighted work in three circumstances:

1. If your use is “Fair Use”;
2. If the work you use is in the Public Domain;
3. If the material you use is factual or an idea.

Fair Use

You don’t need a license to use a copyrighted work if your use is “fair use”, but it is difficult to know whether a particular use of a work is fair or unfair. Determinations are made on a case-by-case basis by considering four factors:

Factor #1: Purpose and character of use. The courts are most likely to find fair use where the use is for non-commercial purposes, such as a review.
Factor #2: Nature of the copyrighted work. The courts are most likely to find fair use where the copied work is a factual work rather than a creative one.
Factor #3: Amount and substantiality of the portion used. The courts are most likely to find fair use where what is used is a tiny amount of the protected work. If what is used is small in amount but substantial in terms of importance, a finding of fair use is unlikely.
Factor #4: Effect on the potential market for or value of the protected work. The courts are most likely to find fair use where the new work is not a substitute for the copyrighted work.

Traditional “fair use” purposes include criticism, comment, news reporting, teaching, scholarship, and research. You stand a better chance of falling within the bounds of fair use following these guidelines than you do if your work is sold to the public for entertainment purposes or for commercial gain.

Public Domain

You don’t need a license to use any public domain (works not protected by copyright) work. They may be used by anyone. No one can claim the exclusive rights of copyright for such works.

Works enter the public domain in several ways:

1. Because the term of the copyright expired;
2. Because the copyright owner failed to “renew” his copyright under the old Copyright Act of 1909;
3. Because the copyright owner failed to properly use copyright notice (of importance only for works created before March 1, 1989, at which time copyright notice became optional).

These myths and guidelines are just a few I’ve come across in recent months while investigating a copyright infringement case of my own. Stay tuned to this blog for the “Whole Story” on this ongoing nightmare!

Do you have additional “myths” that should be added to this list? Modifications to what has already been posted? I welcome your comments and opinions.

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