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WHEREFORE THOU ART # 13
MORE COPYRIGHT MYTHS EXPOSED

Last month we explored three of the most prevalent copyright “myths,” persistent misunderstandings about copyright law that are often held by both creators and users of creative works. To review:

Now, let’s look at some more commonly held copyright myths:

If something is found on the Internet and has no copyright notice, it can be used by anybody for free.

Wrong. As we’ve already discussed, it is no longer a legal requirement to place on a notice of copyright on (or near) a work for that work to be protected by copyright law. So just because you find something on the Web that lacks a copyright notice doesn’t automatically that you can use it, because there very well be a copyright owner. And it’s very possible you are looking at an image or text that has been pirated and posted on the internet and the copyright notice has been removed!

And simply because something appears on the Web doesn’t mean you can freely copy it. Copyright laws work pretty much the same in the virtual world as in the real world. The problem is that it is so incredibly easy to cut and paste things off the internet; most everyone (myself included, I must admit) does it. But this doesn’t make it right.

Certainly, some copying and transmission of stuff off the Web won’t get you in trouble. If you grab a photo you like from a website and use it as a personal screensaver on your laptop, you’re probably fine. If you start selling screensavers using that photo to the public, you are over the line. If you use common sense and aren’t a pig about your use of on-line materials, you’re likely to be OK. But you do need to be careful.

I adapted an existing work. Since I really created something new, I’m cool, right?

You may be many things, but cool is probably not one of them. Only the copyright owner has the right to prepare derivative works of the original, or to authorize others to do so. This includes adaptations, modifications, excerpts, sequels (and prequels), works in different media (like a film based on a book), arrangements, use in collages, and musical sampling. If you make any sort of adaptation of a copyrighted work or copy any part of a copyrighted work for use in a new work, you generally need to get the permission of the copyright owner.

Now, there are some exceptions to this. Some copying without permission is allowed for news reporting, critical analyses, educational purposes, and for creating parodies of the original work. But in general, adaptive use of a copyrighted work without permission is a type of infringement. And this is especially true with regard to the adaptive use of works owned by Big Media (like Disney, Marvel Comics, or the major record labels) who diligently police their copyrights and take no prisoners in enforcing them.

A not-for-profit organization can use other people’s materials so long as the organization doesn’t make money off them

Yikes! No! Not-for-profits have to obey the law like everybody else, and this includes getting permission to use copyrighted materials. In other words, doing God’s work doesn’t entitle you to a get-out-of-jail-free card. And just because the thing taken isn’t generating revenue for the “taker” doesn’t mean that something of value hasn’t been taken from the creator. Unauthorized use of a creative work can dilute the work’s value in the market place. Only the copyright holder has the right to control the use of a work, and that definitely includes use by not-for-profit organizations.

So long as proper credit is given to the copyright owner, my reuse of a work is OK.

Not OK. Giving credit does show that you aren’t a plagiarist, but it doesn’t mean you aren’t a thief. It is a good thing not to claim somebody else’s work as your own and to give credit where credit is due. This applies whether or not the work copied is copyrighted. But you still need to get the permission of the copyright holder before using a work, and merely crediting the creator, while nice, is not a substitute for that permission.

I’ll just use the work and get permission later.

It’s your funeral. Except for musical compositions (for which the law provides a compulsory license), a creator does not have to grant permission for the use of a work, and can prohibit you from using the work, and even get an order seizing and destroying your infringing work. And should you get sued for infringement, it is not going to make the lawsuit go away if you say “OK, now can I have permission?” Worse yet, copyright infringement can be a federal crime if the intent is willful, the copies numerous and the damages high. An infringer could wind up in the slammer!

Only in limited circumstances do I ever tell clients that it is all right to use works without permission, and these are generally in situations in which (a) the reuse of the original work is modest and (b) after a reasonably diligent inquiry, the status of a copyright or the authorship of a work can’t be established. But in these cases, I tell the client that there will always be some outside risk that a copyright holder may pop up and spoil the party, and if they want to be absolutely risk free, don’t use the work.

© 2004 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.