Kathy Biehl advises authors, businesses and Website developers on issues of copyright protection and use. LLRX.com’s After Hours and Research Roundup columnist and co-author of The Lawyer’s Guide to Internet Research, she is an attorney licensed to practice in New Jersey and Texas.
Updated December 16, 2004 and completely revised on December 17, 2006
Misinformation has a way of taking root online and turning into virtual kudzu. Some species are merely an annoyance, such as the Bill Gates email-forwarding giveaway and other e-mail hoaxes that will not die. Others, however, are actively molding behavior. And the misinformation that’s flying around about copyright is encouraging people to do things that are not merely illegal, but potentially extremely costly.
A handful of myths have spawned practices, particularly among bloggers and website owners, that turn copyright law on its head. These myths are rooted in the assumption that everything is up for use online unless and until proven otherwise. It doesn’t help that technology has made it so easy to take and share images, text and files. Those myths and that ease have fostered a presumption of entitlement that causes Netizens to treat the Internet (and non-electronic sources as well) as a buffet spread of photos, articles, sounds and multi-media files free for the plucking and posting.
Despite well-publicized lawsuits cracking down on unauthorized music downloads, these myths are still in surprisingly widespread circulation. In recent history, otherwise educated people have asser ted nine different fallacies to me as if they were law. Every one of these fallacies has the potential to lead the ill-informed into the land of copyright infringement, where even a short stay can carry a whopping price tag.
Note: The discussion below will use the term “permission” to include both explicit permission from the copyright holder and any legally imputed permission, whether due to the work being in the public domain or through fair use.
Myth #1: It’s okay to use anything that doesn’t have a copyright notice
Not necessarily. This is true only for three types of works: (a) any work of the federal government; (b) any work published before 1923 and (c) any work without a copyright notice published between 1923-1978. Those works are in the public domain, about which more under Myth #2.
It is not okay to use a recent work just because it doesn’t have a copyright notice. If the work is recent, it doesn’t have to have a copyright notice. No notice is required for works published since 1978; under current law, the copyright attaches to a work as soon as it is set in tangible form. This means that permission is necessary to use anything that is less than 25 years old, whether or not the work carries a copyright notice. So do not assume you can safely retype a community newsletter and park it on your Website, simply because the newsletter editor did not put in a copyright notice. You are legally on notice that the copyright exists, whether you know or understand that this is the case.
Myth #2: It’s okay to use anything that’s online, because if it’s online, it’s in the public domain and up for grabs
No. Posting a work online makes a work available to the public, but that act does not magically remove the work from the protection of copyright and transfer it into the public domain.
“Public domain” is a concept that a lot o f people throw around without truly understanding it. “Public domain” does not mean the same thing as “on the Web” or even “publicly available.” In fact, the fact that a work is online or publicly available is no indication whatsoever of whether it is in the public domain. The public domain is the vast collection of creative works that are not subject to anyone’s copyright, so anyone, anywhere may freely use them. The only way a work can enter the public domain is for copyright protection to expire or to never attach, according to the law that was in effect when the copyright came into being. For a chronological explanation of the differing legal requirements, which changed frequently and drastically throughout the last century, see Lolly Gasaway’s public domain chart. An alternative explanation for those who prefer more visuals is the comic book Bound By Law, produced by Duke University Law School Center for the Study of the Public Domain, and available online in HTML, PDF ( 78 pages) and Flash animated form.
Here is a summary of what is and is not in the public domain:
A work is in the public domain if it:
- By the federal government, at any time.
- Between 1964-1977 without a copyright notice.
- Between 1923-1963 with a copyright notice, if the copyright was not renewed when the initial term expired.
- Between 1923-1963 without a copyright notice.
- Before 1923.
A U.S. work is still subj ect to copyright protection if it was published:
- From 1978 – on.
- Between 1964-1977 with a copyright notice.
- Between 1923-1963 with a copyright notice, if the copyright was renewed (To verify renewals, search the Library of Congress’ copyright registrations and not the LOC Website, because the online records start in 1978, i.e., after this period. Rutgers University School of Communication, Information and Library Studies has a search tool for verifying renewals of books that were published between 1923-1963. Note that this tool does not search for anything that is not a book, such as periodicals, movies or music.)
Under 17 U.S.C. § 304, the copyright protection of the last two categories of works lasts for 70 years after the author’s death (in the case of joint authorship, from the last surviving author’s death). The term is longer for works for hire, anonymous works, and pseudonymous works (not works written under a pseudonym, but those whose author is not identified in Copyright Office registrations). The copyright term for those works is the earlier to occur of 95 years after publication or 120 years after creation.
Myth #3: It’s okay to use anything as long as I’m not making any money off it.
No. The absence of a profit might affect how far a copyright holder decides to go against an infringement, but it does not determine whether the infringement exists. The question is whether you have permission for the use. If you don’t have permission, you’re infringing.
Some people equate not making money with the concept of “fair use.” The issue of whether money is changing hands may play a role in whether a particular use is “fair,” but it does not itself constitute fair use. The concept of fair use allows use of a copyrighted work without obtaining permission under a few special conditions, including criticism, parody, and teaching. There are four factors that a court will use in determining whether use of a copyrighted work amounts to fair use:
1. The purpose and character of the use. If it’s noncommercial, clearly fits one of the special conditions (such as criticism, parody or teaching), and adds something new, this factor looks good. On the other hand, commercial use, by itself, is not necessarily the kiss of death.
2. The nature of the copyrighted work. If it’s informational (a chart, say, or an encyclopedia entry), a work may be more fair game for fair use than a work that is largely creative, such as a novel or a painting. Also, a published work may be more open for fair use than one that hasn’t been published yet, because courts are protective of an author’s right to control when and how unpublished work is released.
3. The amount and “substantiality” of the portion used – how much of the copyrighted work was used, and whether that amount was reasonable for the purpose of the use. Using a recognizable excerpt of a famous photograph in a work that parodies it may be okay; using the entire photograph might not be. Unfortunately, there is no specific percentage that marks the dividing line between fair use and copyright violation. The amount always depends on the particular circumstances. The more you use – or the more important the portion you use – the greater the risk.
4. The effect of the use on the potential market for or value of the copyrighted work. An unauthorized use is not fair if it damages or lessens the sales, actual or potential, or marketability of the copyrighted work. Distribute copies of someone’s writings or recordings tapes, and good luck proving that you’re engaging in fair use, particularly if you’re pocketing money from it. If, on the other hand, the unauthorized use has no financial impact on the copyrighted work (for example, if the use is not commercial or it didn’t keep people from buying the original work), this factor may argue in favor of the use being fair.
The specific answer to any one factor will not determine whether a particular use is “fair.” What’s more important is how all the answers stack up together. The bottom line is that it is risky to unthinkingly assume that any given use is fair, particularly if it does not involve criticism, teaching or parody. For plain-language discussions of this concept, and particularly of how courts have ruled on specific uses, see the resources at the Stanford Copyright and Fair Use website.
Myth #4: It’s okay for a non-profit organization to use anything
No. The explanation of applies here as well. Non-profit status does not automatically convey special privileges under copyright law. A non-profit organization has to follow the same copyright rules as everyone else. If your church choir is buying one copy of a piece of sheet music and photocopying it for all the singers, for example, or if the choir is recording songs and selling CDs of the performance, the fact that this is happening under the auspices of a church does not change the nature of the copyright holders’ rights. (I use church choir merely as a example; the line of reasoning applies to any non-profit organization, regardless of its nature.) You need to verify whether the works you are using are in the public domain and, for the ones that are not, either obtain permission for your use or establish that you have a defensible fair-use exemption. Otherwise, the exposure exists for a copyright infringement claim against the non-profit organization.
Aside: If a non-profit is engaging in copyright infringement, the issue may arise of whether the board and officers knew about it, should have known about it, or consented to it, any of which could call their personal liability shield into question. This means that if you’re a director or officer of a non-profit organization, you owe it to the organization and to yourself to pay attention to whether and how the organization is using other people’s works.
Myth #5: It’s okay to use anything as long as I give credit
No. For copyright law, the question is whether you have permission. If you don’t have permission, you’re infringing.
Myth #6: It’s okay to use anything as long as I include the creator’s copyright notice
No — unless the copyright notic e permits the use you are contemplating. Some electronic newsletters, for example, specifically permit forwarding as long as the copyright notice is included in the forward and kept intact. Likewise, some book copyright notices permit excepting a short amount (usually a specified number of words) for reviews. A third variation is a Creative Commons license, which comes in six different formats and grant specific permissions based on creator-specified requirements regarding attribution, use and sharing. If a notice grants blanket permission for a specified use, you must follow the requirements of the permission, or else you don’t have permission. And if you don’t have permission, you’re infringing.
Myth #7: It’s okay to use anything as long as I take it down when the copyright holder objects
No. The fact that you stop infringing does not alter history and erase the fact that you infringed in the first place. The following that this particular myth enjoys in the blogging world is so widespread that even lawyers have fallen for it. I have actually seen a post by a lawyer, to a lawyers’ mailing list, advancing the blogging practice of posting photos without asking for permission and removing them on objection, as if the practice overrode copyright law. It doesn’t.
Myth #8: It’s okay to use something if I can’t find the copyright holder
No. Do not assume that you are free to use the work if you can’t locate the copyright holder. Elusiveness is not an excuse, if the copyright is still in effect. “I can’t find the owner” is not an excuse a court is going to accept. Proceed at your risk.
If you don’t see a copyright notice on a work you want to use, direct the request to the person named as author or, if none is named, to the publisher. Check the Library of Congress’ database for names and addresses. If you still have t rouble locating an address for the copyright holder, try to track one down using online searches or by contacting any organization that has an obvious affiliation with the holder. (For example, if you want the right to reproduce lecture materials from a conference, ask the conference sponsor to put you in touch with the copyright holder.) Attorney Lloyd J. Jassin lays out other search strategies and points to a host of permissions pages in his helpful article Locating Copyright Holders.
The winds of change are blowing in this area, but they haven’t settled down yet. Legislation has been introduced in the House of Representatives to limit remedies for using an orphan work after a reasonably diligent and unsuccessful attempt to locate the copyright holder. It has not yet been enacted.
Myth #9: It’s okay to use something if I asked for permission and didn’t get a response
No. Silence does not equal consent in this situation. In fact, silence makes things worse for you. If you use a copyrighted work after requesting and not getting permission, you are knowingly infringing on the copyright, which ups the penalties if the holder decides to take action against you. The ceiling on statutory damages skyrockets from $30,000 to $150,000 per work when an infringement is willful. 17 U.S.C. § 504.
If this catalog of myths is too long to remember, adopt these simple guidelines to steer clear of trouble (not to mention overwhelming demand letters and lawsuits).
1. Use someone else’s work only if:
a. You have permission;
b. The work is in the public domain; or
c. What you do with the work amounts to “fair use.”
2. If you do not know whether a work is subject to copyright, investigate.
3. If a work is subject to a copyright, don’t use, quote or lift from it without getting permission, unless you are confident you meet a fair use exception. For a blogger or site owner, that means: ask before posting someone else’s articles or photos.
4. If you don’t know whether it’s copyrighted or do not know for certain that it is in the public domain, ditto.
5. If you have any doubts, consult a copyright or intellectual property attorney before using someone else’s work. (Advice costs less than defending an infringement claim does.) At a minimum, read Franklin Pierce Law Center Professor Thomas G. Field’s concise online primer, Copyright on the Internet.
This article is not intended to constitute legal advice or to take the place of conferring with your own attorney.
©Kathy Biehl 2006. All Rights Reserved.