Saturday, December 14, 2013

Copyright Half-Truths




12 COPYRIGHT PERMISSION MYTHS

By Lloyd J. Jassin


If you intend to use a copyrighted work, unless the use is considered a fair use, you must obtain permission. If you wish to be a commercially published author, those permissions must also be in writing.  Under federal law, only the copyright owner or someone acting with the owner’s authority, such as a publisher, can grant you permission to copy, adapt, distribute, display or perform a work. While not every unauthorized use of a copyrighted work is an infringement (e.g., ideas cannot be copyrighted, only the way in which they are expressed can be), whenever you borrow from someone else's work,  there are some basic copyright rules you should keep in mind.   

We've all heard them.  Copyright myths.  Here are twelve common copyright half-truths.  What you think you know can harm you.  So, don't try and convince yourself that any of these are absolutely 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 without a notice risked loss of copyright protection if not promptly and adequately corrected.

2.       If I give credit I don't need permission.

Not true.  Giving credit means you can look at yourself in the mirror and say you are not a plagiarist.  However, attribution is not a defense to copyright infringement, which, unlike plagiarism, is a legal offense.  Copyright infringement is the violation of one of the exclusive rights granted to copyright owners.  By contrast, you can plagiarize material not protected by copyright simply by taking credit for it.

3.       Since I'm only using a few words I don't need permission.

Not necessarily.  How much you can borrow is a legal gray area. Sometimes even a small (but important) portion borrowed from a larger work can infringe.  Keeping with the view that copyright law should encourage creativity and innovation, not unduly suppress it, courts may excuse certain socially productive, but unauthorized uses.  Those uses are called fair uses.  Fair use is an argument against the rigid application of copyright law. It is determined on a case-by-case basis.  It considers what's been borrowed, how much was borrowed, how it was used, its importance, and the economic impact it has on the original.  If you borrow the "heart" of a work, it weighs against fair use.       
 
4.       I don't need permission because I'm going to adapt the original work.

No.  You can't make a work your own by adapting it.  Copyright law grants  copyrights owners the exclusive right to control modifications to their work.  If you add, or even delete,  material from someone's work without permission, you have created an unauthorized derivative work. 

5.       Since the work is in the public domain, I don't have to clear permissions.

Not necessarily.  A book or motion picture, for example, may have fallen into the public domain for technical reasons, but there may still be copyrights to contend with.  While a book may be in the public domain, photos or other materials that appear in the book may remain legally protected.  Similarly, the composer of an in-copyright soundtrack, to an otherwise public domain film, can restrict the exhibition of that film by claiming a right to the music within.  While copyright in a photograph of a celebrity may no longer be in effect, if the image of the celebrity is used for commercial purposes, it may violate the celebrity's right to derive financial benefits from her likeness. Similarly, the owner of an expired copyright may still be able to stop the commercial use of a related trademark, if the use falsely implies their support of the use.         

6.       My publisher will handle the permissions.

Probably not.  Most publishers place that burden of clearing and paying for permissions on the author's shoulders.   

7.       I can always obtain permission later.

Later may be too late.  Copyright owners have the unfettered right not to grant you permission.  It is better to know now than later, that a critical component of your work cannot be cleared for use.    

8.       Since I'm planning to use my work for nonprofit educational purposes, I don't need permission.

Not necessarily.  The issue isn't the user, it's the manner of use.  If the use is a commercial use -- and it falls outside the bounds of fair use -- even a nonprofit educational institution can be held liable for copyright infringement.  

9.       I don't need permission because the work I want to use is more than 75 years old.

Not necessarily.  In 1998, Congress added 20 years to most copyright terms.  For works published after January 1, 1978, copyright protection lasts for the life of the author plus another 70 years.  For a pre-1978 work by a sole author, the maximum term of copyright protection is 95 years from the date the work was published or registered.  For works created by an employee, specially commissioned works, and works published pseudonymously, the copyright term is even longer.

10.      The material I want to quote is from an out-of-print book.   Out-of-print means that the work is in the public domain.  Correct?

Not necessarily.  Out-of-print does not mean out-of-copyright.  When a book goes out-of-print, it is no longer commercially valuable.  While that may trigger an author's right to recapture her copyright, it doesn't eject the book into the public domain.  

11.      A Creative Commons ("CC") license means I can use the material without permission. 

Yes, but restrictions may apply.  A CC license allows certain uses for free. What those allowable uses vary.  Some CC licenses place restrictions on commercial and uncredited uses.  Some permit modifications, others may not.  To determine what is allowable, you must read the license carefully.  
 
12.      I found a photo on Twitter.  Since it was uncredited, I can use it in my book.    

Not true.  Neither the ease with which users can upload or download online content, nor the fact that content was posted anonymously, places it in the public domain. Twitter may claim a  license to make the photo publicly available, but beyond your express right to retweet it, you are not free to take the photo and make commercial use of it.   



LLOYD J.  JASSIN has practiced publishing, entertainment and trademark law for over two decades.  He is an adjunct professor at NYU Publishing Program, where he teaches a course on digital rights and permissions.  He is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  Contact: The Law Offices of Lloyd J. Jassin, 1501 Broadway 12th FL, New York, NY 10036 | (212) 354-4442 (tel.); (646) 571-2001 (fax) | Jassin@copylaw.com | www.copylaw.com|Twitter

DISCLAIMER:  This article is not intended as legal advice.  Because the law is not static and one situation may differ from the next, the author assumes no responsibility for actions taken based on information contained in this article.  Be aware that the principles contained in this article are subject to exceptions and qualifications.  Thus, when in doubt, seek legal advice from an experienced copyright or media law attorney, or err on the side of caution, and obtain permission or an appropriate release.