Copyright myths

by Jonathan Bailey

When I first started dealing with copyright issues about eight years ago I, like most people, was bombarded with a great deal of copyright myths and urban legends. Though I knew that most were false, I have to admit to having believed a few for at least for a while.

But now that I am a older and hopefully a little bit wiser in this area, I tear through the worst of the myths pretty easily. However, still see them being thrown around, day after day, by well-meaning people on the Web.

So I wanted to take a few moments to address some of my “favorite” copyright myths, explain why they are false and perhaps offer some lesser-known copyright truths.

If It Doesn’t Have the © Then it Isn’t Copyrighted
There was a time that this myth was true. However, in the United States, since 1978 there has been no formal requirement to mark your work with the copyright symbol, in fact, there are no formalities at all. Copyright is created in a work once it is fixed into a tangible medium of expression. This means your novel is protected the second you hit the “save” button.

I still encourage people to put formal copyright notices on their sites. Though this myth is nowhere near as common as it was just a few years ago, it is something that is free and easy to do that prevents a lot of innocent infringement.

It may not have any legal standing, but it can definitely save some headaches.

In short, it’s a good idea to include a copyright notice, but it isn’t necessary.

If It Is Not Registered, Then it Isn’t Copyrighted
This one is, at best, partially true. As I said above, copyright in a work is created once the work is fixed into a tangible medium of expression. However, registering your work does provide you with extra protections.

First, in the United States, you have to first register your work before you can sue for statutory damages. Second, you can only get statutory damages for infringements that took place either after the registration or after publication if the work was registered within three months. Without statutory damages, most copyright infringement lawsuits are a waste of resources.

However, if you aren’t planning on suing anyone, the registration process itself is a waste. You can still file DMCA notices, send cease and desist letters and demand licensing for your work.

A work is protected by copyright the moment it is created, but if you want to enforce that copyright in a court, you need to register it.

You Can Mail Yourself a Copy of Your Work to Protect It
This concept is known as Poor Man’s Copyright and has already been debunked more thoroughly on this site.

Basically though, sending your work through the postal service does not provide any protection to your work at all. You will still need to register your work with the U.S. Copyright Office to sue and that registration provides more legal protections than a postmark ever could.

There is a potential use for non-repudiation services, especially in cases where public opinion matters more than a court of law, but in those cases you are doing better to get a true non-repudiation service and not use the postal service.

If You Don’t Protect Your Copyright, You Lose It
Copyright is not like trademark. Copyright has a set period of time for which it is valid and, unless you take some kind of action, you do not give up those rights.

To be fair, the level of enforcement or protection you’ve provided a work can be a factor in how much damages are awarded. For example, if a photo you took has been circulating widely for years with no action and you sue one user of the work, that would mitigate the market value of the work, the damage the infringement could have done and how the court feels about the infringement itself. All of these things can affect the final judgment.

However, unlike trademarks, which do have to be defended, there is nothing the precludes you from enforcing your copyrights at a later date.

I Copyrighted That Name
Copyright does not apply to names or short phrases. If you are using that for the purpose of identifying yourself or your business, you may have trademark protection on the name but trademark provides a different set of protections and comes with a different set of requirements.

If you are interested in trademark issues I may be talking more about them on this site going forward but definitely visit the United States Patent and Trademark Office for more information.

Creative Commons/GPL Are a New Form of Copyright
Copyright is a set of laws created by national governments and harmonized, with limited success, by a series of international treaties. Creative Commons, GPL and similar licenses are exactly that, licenses built upon the existing legal framework to allow certain copyright and reuse of work.

Creative Commons is not an attempt to replace copyright law. In fact, all of these licenses would become meaningless if modern copyright law were done away with overnight.

These systems are designed to make it easier for creators to give limited permission to copy and use a work, thus making it easier for users to obtain the license they need to take advantage of the work.

Though these licenses seem to run counter to copyright law by giving away rights that copyright law naturally protects, the rights given are balanced by those are withheld and depend upon copyright to protect those rights.

Creative Commons is not out to replace copyright law any more than a rental agreement is out to replace the idea of home ownership. Though there is a definitely desire in these communities to reform copyright law with some of the ideas from copyleft built in, the licenses themselves are not replacements and never could be.

If I Wrote It, It Isn’t an Infringement
Writing something or creating it yourself does not automatically mean that it is not a copyright infringement. For example, if you write a story based upon another book or take a photograph of a painting, even though you created a new work, it could be what is known as a derivative work and infringement.

Derivative works is a particularly messy area of copyright law and one that is still being settled. However, it is based upon whether an “ordinary observer” would find the works “substantially similar”.

This is a very tricky area but it should suffice to say that simply doing your own work does not protect you from copyright infringement so long as that work is based heavily upon the work of someone else.

Fair Use Will Protect Me
Most of the people why cry fair use are misreading the law. Fair use is a very narrow exemption under copyright law where an infringer is not liable for using someone else’s copyrighted work without permission.

Fair use may protect you in some cases but you have not note that fair use strongly favors uses that are transformative, meaning that the copy is a new work, one not designed to replace the original, and that the fact your use was or was not commercial does not factor in heavily.

Furthermore, fair use is an affirmative defense, meaning that you would have to prove that your use was fair after you have been sued. In short, fair use will not protect you from a lawsuit, just from having to pay damages after it is over.

Fair use is a vital part of copyright law. It is where free speech is balanced against the rights of the copyright holder. However, using it means first understanding it.

If Someone Copies My Work, There Isn’t Much I Can Do
There is actually a great deal that you can do about it. If you’re reading this page and this is your first time on Plagiarism Today, perhaps you should take a look at the rest of the site. It might help you out.

Related Links & Other Myths Pages
Here are just a few of the other copyright myths pages I recommend:

10 Big Myths about copyright explained: One of the best-known copyright myths collections. Has some not in this list. 10 Common Copyright Permission Myths: A series of myths dealing with getting permission to use a copyrighted work. 10 Urban Copyright Myths: Another great copyright myths list.

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