TEN COMMON COPYRIGHT PERMISSION MYTHS
By Attorney Lloyd J. Jassin
Although the First Amendment may appear unconditional on its face, the right
to speak and write freely has never been absolute. Intellectual property rights
often prevail over an author's "creative license." The main benefit of copyright,
for example, is the right to exclude others from making copies of a work (or
any part of it) without permission. By protecting an author's expression, copyright
guarantees that authors and other creators, derive financial benefits from their
work.
If you intend to use someone's copyrighted work, unless the use is considered
a "fair use" (which is technically a defense to copyright infringement), you
must obtain that person's written permission. Under federal law, only the copyright
owner or someone acting with the owner's authority, such as a publisher, can
grant that permission. Without written permission, you expose yourself to legal
risks.
While not every unauthorized use of a copyrighted work is an infringement, whenever
you include another person's words, illustrations, photographs, charts or graphs
in a work you publish, you must be sensitive to the risk of infringing someone's
copyright.
What follows are some common copyright permission myths. Though it's human nature
to try and avoid the entanglements of permissions, don't convince yourself that
any one of them is true.
1. The work I want to use doesn't have a copyright notice so I don't need permission.
Not true. Since March 1, 1989 copyright notice has been optional. Before that
date, copyright notice was mandatory and a work published with no copyright
notice risked loss of copyright protection if not corrected within a specified
period of time.
2. If I give credit I don't need permission.
Giving credit means you can look at yourself in the mirror and say you are not
a plagiarist. However, merely giving credit is not a defense to copyright infringement
which, unlike plagiarism, has legal, not ethical, consequences. Copyright infringement
is the unauthorized use of someone else's copyrighted material. By contrast,
you can plagiarize material not protected by copyright simply by taking credit
for it.
3. Since I'm only using a small portion of the original work, I don't need permission.
While "fair use" can't be defined with mathematical precision, courts have consistently
held that "you cannot escape liability by showing how much of [a] work you did
not take." Based on the particular facts of a given case, courts will weight
the following factors to determine whether a particular use is a fair use: (i)
the purpose of the use, including whether the use is primarily for commercial
or noncommercial purposes; (ii) the nature of the work; (iii) the amount and
importance of the portions used in relation to the whole of the original work;
and (iv) the effect of the use on the potential market, or value of the original.
Accordingly, even if what you copy is quantitatively small, it may be qualitatively
important, and therefore an infringing use.
4. I don't need permission because I'm going to adapt the original work.
Copyright law grants copyright owners the exclusive right to control modifications
of their works. If you add a new layer of copyrighted material to a previously
existing work, you have created a derivative work. If done without permission
of the copyright owner you, may have violated the owner's copyright.
5. Since the work is in the public domain, I don't have to clear permissions.
No necessarily. Public domain only refers to the lack of copyright protection.
While copyright is very important, a work may be protected by other legal theories
that survive after the copyright expires. For example, public domain artwork,
particularly distinctive characters (e.g. Beatrix Potter's "Peter Rabbit" illustration),
can achieve protection under trademark law and function as a logo or source
identifier. Likewise, mere ideas, that are not protected under copyright law,
may be protected under trade secret or contract law. Similarly, identifiable
people may have the right to control the manner in which their name or likeness
is used.
6. The material I want to reproduce was posted anonymously to an online discussion
or news group. That means the work is in the public domain.
Not true. Neither the ease with which users can upload or download information
on the Internet, nor the fact that it is anonymous, places a work in the public
domain. In fact, the Copyright Act specifically protects anonymous and pseudonymous
works from unauthorized copying. Postings and republications of protected material,
if not done with the consent of the copyright owner, may constitute copyright
infringement. Of course, due to the nature of such postings, there may be implied
consent to copy material received from A, in any reply B makes to such communication.
7. I can always obtain permission later.
Later may be too late. Copyright owners have the unfettered right not to grant
you permission. If what you need is crucial to your work, better to find out
now that it is unavailable, than later. The lack of permission can result in
your work being blocked or the payment of thousands of dollars in copyright
damages and attorney's fees if you decide to use the material without permission.
8. The material I want to quote is from a an out-of-print book. That means the
work is in the public domain.
Not necessarily. Out-of-print does not mean out-of- copyright. When a book goes
out-of-print it is a temporary state. The rights generally revert to the author,
which means the underlying copyright remains unaffected.
9. Since I'm planning to use my work for nonprofit educational purposes, I don't
need permission.
Not necessarily. The key factor is not the user, but the nature of the material,
how it is being used, and whether the new use adversely affects the value of
the original work. Since even a nonprofit educational use can undermine the
value of a copyrighted work, such organizations are not immune from copyright
infringement suits.
10. I don't need permission because the work I want to use was published before
1923 and is over 75 years old.
Not necessarily. Unpublished and unregistered works created before 1978 (including
very old works) may still be protected under United States copyright law. Copyright
in these works -- which includes unpublished letters and manuscripts -- cannot
expire until, at least, December 31, 2002. If they are published before December
31, 2002, as a bonus, they are guaranteed at least 45 years of additional protection
(until December 31,2047). Also bear in mind, that although a work may be in
the public domain in the United States, it may still be protected overseas,
where the rules concerning copyright duration differ.
When in doubt err on the side of caution and obtain permission, or consult with
an intellectual property attorney.
NOTICE: This article represents copyrighted material and may only be
reproduced in whole for personal or classroom use. It may not be edited, altered,
or otherwise modified, except with the express permission of the author. This
article discusses general legal issues of interest and is not designed to give
any specific legal advice pertaining to any specific circumstances. It is important
that professional legal advice be obtained before acting upon any of the information
contained in this article.
LLOYD J. JASSIN is a New York-based publishing and entertainment attorney
in private practice. He is coauthor of the bestselling Copyright Permission
and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.), available at bookstores or at www.copylaw.com.
Mr. Jassin has written extensively on negotiating contracts in the publishing
and entertainment industries, and lectures frequently on contract and copyright
issues affecting creators. He is counsel to the Publishers Marketing Association
and Vice Chair of the Small Press Center. He may reached at Jassin@copylaw.com
or at (212) 354-4442. His offices are located at 1560 Broadway, Suite 400, New
York, NY 10036.
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