Friday, December 10, 2021

12 Common Copyright Permission Myths

Though you may not believe all twelve of these myths, familiarity with them can
Common Copyright Permission Myths

free your book or blog from legal hassles. Get it wrong, and an aggrieved copyright owner can block or remove your work by filing a simple online takedown notice -- all without filing a complaint in court.  Worse still, it can spark costly and time-consuming litigation.  

1.       There's no copyright notice, so no permission is required.    

Not true.  Since March 1, 1989, copyright notice has been optional. Before that date, a copyright notice was mandatory, and a work published without a notice risked the loss of copyright protection if not promptly and adequately corrected.

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

Not true. Giving proper credit is not a defense against copyright infringement. Copyright infringement is using a work without the copyright owner's permission.  By contrast, you can plagiarize material not protected by copyright simply by taking credit for it. 

3.       I don't need permission because I only use a few words.

Not necessarily. How much you can borrow is a legal gray area. Sometimes, a small but important portion borrowed from a work can infringe. Since copyright law encourages creativity and innovation, courts may excuse specific socially productive but unauthorized uses. Those uses are called fair uses.  Fair use is a defense 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 may have on the original.  If you borrow the "heart" of a work, it weighs against fair use. Creative works are less amenable
to a fair use defense.    
4.       I don't need permission because I will adapt the original work.

No. You can't make a work your own by adapting it without permission.  Copyright law grants copyright owners the exclusive right to control modifications to their work. 

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

Not necessarily.  For example, a book or motion picture 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.  If a character falls into the public domain, the former copyright owner may still stop the commercial use of that character 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.  However, it is better to know now than later that a critical component of your work cannot be cleared for use.    

8.       Since I plan to use it for nonprofit educational purposes, I don't need permission.

Not necessarily.  The issue isn't the user; it's how the work is used. If the use 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. For works published after January 1, 1978, copyright protection lasts for the author's life 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 a work created by an employee within the scope of their work or a specially commissioned work, copyright persists for 95 years from publication or 120 years from the date of creation, whichever expires first.

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 usually means it is no longer profitable. While that may trigger an author's right to reclaim their copyright, it doesn't mean the book is in the public domain. See #9 above. 

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

Yes, but restrictions may apply.  CC license allows specific uses for free. What those allowable uses are will vary.  For example, 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 the Internet.  Since it was uncredited, I can use it in my book.    

Not true.  The ease with which users can upload or download online content nor the fact that content was posted anonymously on the internet places it in the public domain. 

LLOYD J.  JASSIN has practiced publishing, entertainment, and trademark law for over two decades.  Before becoming an attorney, he was Director of Publicity for Prentice Hall Press, a division of Simon & Schuster.  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.) | | 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.  Furthermore, 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.

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