Debunking Copyright's Most Common Myths, Part I

In this 2-part legal guide, I'll be myth-busting. Here are the ten most common copyright myths and the reasons why. I'll start with the first five here.

1. Common Copyright Myth #1:

   "If the Copyright Owner Doesn't Sue Others, They Won't Sue Me."

   
   

   Reality: If you take this risk, you might get sued anyways.

   
   

   If you made a lot more money off the infringement than others, guess who they're coming for? You! It doesn't matter that they haven't yet sued previous infringers. This won't be a defense available to you in court. It's kind of like speeding tickets. If you're the person they pull over, you're the one getting the ticket.

   
   

   The decision of a copyright owner to enforce their rights is discretionary and can often feel arbitrary. Just because they haven't taken action against others doesn't guarantee that they'll skip over you! If your infringement is the most lucrative of all offenders, that's where the lawsuit is going to get filed. Copyright owners are within their rights to pick and choose who they sue.

   
   

2. Common Copyright Myth#2:

   "No One Will Notice or Care if I Use Small Portions."

   
   

   Reality: Even borrowing small bits constitutes infringement.

   
   

   A "de minimis" use is one considered so trivial or minor as to be non-infringing. Copyright law's "de minimis use" doctrine is currently in split jurisdiction rulings where there are separate standards depending on the Circuit Court or region of the country. The 6th Circuit Court (OH), for example, has ruled every use, no matter how small, is an infringing one especially when accompanied by an admission of borrowed use. This is "split" from the 2nd (NY) and 9th (CA) Circuit Courts that have ruled certain de minimis uses non-infringing if the copied section is not substantially similar to the original work.

   
   

   You should work from the premise that every sample will need to be licensed or cleared. Since the law is split on the matter, your best bet is to clear any sample you borrow or consult with an attorney for advice on any concerns, jurisdictional or otherwise. This is especially important in sample-heavy genres like hip-hop and rap. As the text in the seminal case Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005) reminds us, "Get a license or do not sample." This is the best way to assure that you don't run into any unexpected issues.

   
   

   I once had a client with a hit 2001 rap song that was sampled but not properly cleared. The infringing party still released the record and was then forced to remove the song from all platforms. This was after it had already generated tens of thousands of dollars. Don't release music without getting known samples cleared and don't presume you're in a favorable jurisdiction for de minimis use without first consulting an attorney!

   
   

3. Common Copyright Myth #3:

   "Citing the Source Makes It Okay to Use."

   
   

   Reality: Only permission or a license can make a copyrighted work "okay to use".

   
   

   Copyright infringement is the unauthorized use of another's work. While acknowledgement is nice, it's not the same as permission. The photographer of the picture you copied on to your website might appreciate the credit you've given him, but he's still entitled by law to require permission or to be paid for its use. There are places like the Creative Commons where creators grant licenses or permission for use without a fee. Just keep in mind that a site like Creative Commons functions because authors or creators have explicitly given permission for the work's free or limited use.

   
   

   There are a few legal exceptions that don't require permission. The first is public domain use where a work is either not eligible for protection or it has lost protection after the end of its copyright term (typically the life of the author plus 70 years). At this point, if it's in the public domain, you can do whatever you want with it! Type "public domain" into a search engine and help yourself to any of the works you're confident are in the public domain.

   
   

   Another exception is use of the work without permission under fair use exceptions. These include exceptions for news reporting, criticism or commentary, education, and research. If your use is one of these exceptions, you may be able to use a copyrighted work without permission. Be sure to consult an attorney however since every fair use analysis is subjective and can be difficult for non-lawyers.

4. Common Copyright Myth #3:

   "If I Change the Work 10% or More, It's a New Work."

   
   

   Reality: More times than not, you've created a derivative work, not a new work.

   
   

   One of the exclusive rights a copyright owner enjoys is the right to create derivative works. A derivative work is "a new creation that incorporates significant elements of a pre-existing work." Common examples are adaptations and re-imaginings of the original work.

   
   

   It's not a certain fixed percentage of change that creates a new work. In fact, it depends on the particular elements of the work and if those elements are a predominant part of the new work. You could theoretically change 90% of a work and still not create a new work. That sounds hyperbolic but it's entirely possible. Every instance is evaluated independently. So be careful which parts you borrow if you're going to claim that you've created a new work, not a derivative work. When in doubt, presume you've created a derivative work or consult an attorney to discuss. If you're wrong, it may cost you down the road.

   
   

5. Common Copyright Myth #5:

   "All 'Free to Use' Content Can Be Used For Commercial Purposes"

   
   

   Reality: It says "free to use", but it may exclude commercial uses.

   
   

   When you source a work online, perhaps through a Creative Commons license, you have to look deeper at the permissions being granted by copyright owner. Many times, an author or photographer will qualify "free to use" licenses with something along the lines of "except for commercial use" or "with attribution". Sometimes it's a moral exception and sometimes it's economical. Either way, make sure to double check for any exceptions to your licenses even if they say "free to use". Don't see "free to use" and forget to read the fine print!

   
   

   Conclusion

There you have it, I've busted five of the most common copyright myths!. Make sure to consider these the next time you want to borrow from a copyrighted work.

In Part II, I'll break down the next five Most Common Copyright Myths.