Note: This was originally published on Landslide, Vol. 11, No. 6, July/August 2019
Janet Fries is of counsel at Drinker Biddle & Reath in Washington, D.C. She focuses her practice on copyright issues, particularly as they relate to authors, musicians, art organizations, artists, and collectors. She can be reached at email@example.com. Jennifer T. Criss is an associate at Drinker Biddle & Reath in Washington, D.C. She focuses her practice on copyright law, technology and outsource licensing, and intellectual property aspects of mergers and acquisitions. She can be reached at firstname.lastname@example.org.
These days it seems that copyright law is everywhere, from lawsuits alleging that the multiplayer online battle game Fortnite infringed popular dance moves such as the floss,1 to the Ninth Circuit agreeing that Pharrell Williams and Robin Thicke’s song “Blurred Lines” infringed Marvin Gaye’s copyrighted hit song “Got to Give It Up.”2 As the Internet and technology have become omnipresent in our lives, the constant availability of copyrighted content—from streamed music to photos and posts on social media—has led to the perpetuation of copyright myths. Unfortunately, these myths and numerous others have caused misconceptions over the rights of the copyright holder and the obligations of the user.
The U.S. Copyright Act is a strict liability statute. In other words, following a “rule” that you believe to be true but which turns out to be a myth will not excuse you from liability for infringement. Under certain circumstances, it is possible to plead “innocent infringement,” but even that only serves to reduce the amount of damages you may owe and does not excuse your infringement.
Here are four of the most common copyright myths—debunked.
Myth #1: Public Access = Public Domain
The first myth is that anything to which the public has access, or that is publicly available, is in the public domain; i.e., if it’s on the Internet, it can be used without a license or other permission. This is far from the truth.
Contrary to popular belief, whether a book, work of art, lyrics, sound recording, or other copyrightable work is in the public domain does not depend on where the work can be found. Instead, determining if a work is in the public domain depends on when the term of copyright protection for that work expired— or if it existed in the first place.
Under current law, copyright protection for an original work of authorship “fixed in any tangible medium of expression” lasts for a long time: 95 years from the year of first publication for a work owned by an entity as a work made for hire, or the life of the author plus 70 years for works created by an individual author, regardless of publication status.3 The duration of copyright protection for works created prior to 1978 is subject to different requirements that relate to (1) whether the work was published with copyright notice, and (2) whether the work was registered and, if applicable, if the registration was renewed.4
Any works falling outside of those general parameters are part of the public domain, free for anyone to use for any purpose. One general rule to follow: currently, all works published prior to 1924 (95 years ago) are in the public domain. As of January 1, 2019, copyright-protected works published in 1923 entered the public domain—the first such influx of “new” public domain materials in decades.5
So in theory, the plays of William Shakespeare and the novels of Jane Austen—authors who are long deceased and whose works were first published well before 1924—are in the public domain. But be aware: Romeo and Juliet published with explanatory footnotes or Pride and Prejudice published with a new introduction may be protected by copyright law with respect to those footnotes and that introduction. Similarly, the Ninth Symphony of Ludwig van Beethoven (who died in 1827) is in the public domain, but a recent sound recording of an orchestra and choir performing the Ode to Joy would be protected by copyright law.
Other works that fall into the public domain are works owned by the U.S. government, which are not protected by the Copyright Act and are free for the public to use.6 Works owned by state governments also are part of the public domain. The Eleventh Circuit recently held that an annotation to Georgia’s official code is similarly public domain material, even when prepared by a nongovernment entity.7
So, while many works of authorship created over the centuries are most certainly in the public domain, it is very likely that most creative works found on the Internet or in other electronic media—such as digital photographs, blog posts, and e-books—are protected in whole or in part by copyright law. Using such works without permission or a license constitutes copyright infringement for which the unauthorized user can be liable for damages up to $150,000 per registered work infringed.8
Myth #2: The Poor Man’s Copyright
The second myth is a “theory” that has endured for a very long time and remains surprisingly popular with freelance writers. Instead of registering the copyrights in a work with the U.S. Copyright Office, the myth is that the protection of a “poor man’s copyright” exists when an author mails himself or herself a copy of a work and then preserves the unopened envelope when he or she receives it in the mail. A variation of the theory is having the work notarized.
Mailing yourself a copy of your work or having it notarized has no legal effect. While it may serve as evidence that the work is in your possession as of the date it was mailed or notarized, it in no way proves that you are the author who created that work or holds the rights in it. The only way to register a copyright and to have documentation of your ownership in a copyrightable work is to file an application with the Copyright Office, which leads us to the next myth.
Myth #3: Registration Isn’t Necessary
Unlike the first two debunked myths, there is some element of truth to the third myth, that registration with the Copyright Office is not necessary for a work to be eligible for copyright protection. But not registering the copyright in a work would be shortsighted and not recommended for anyone wanting to be able to enforce his or her copyrights.
Under current law, registration with the Copyright Office is not required for works created after January 1, 1978.9 Provided a work is sufficiently creative and falls into certain enumerated categories, an author’s work is protected by federal copyright law as soon as it is “fixed in a tangible medium of expression.”10 Copyright protection does not cover ideas, only the expression of those ideas. In other words, telling one or more friends about your idea for the next great American novel or of a portrait you wish to paint does not guarantee any rights under U.S. copyright law. But as soon as the idea is expressed tangibly—for example, by writing the novel or painting the portrait—the work is protected by copyright law. Then, if someone copies the novel, painting, or other work of authorship without getting permission, the author can assert infringement.
An author cannot bring a lawsuit for copyright infringement, however, without a certificate of registration from the Copyright Office. The U.S. Supreme Court recently affirmed in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC that a registration of copyrights, and not merely an application filed with the Copyright Office, is required in order to file a lawsuit alleging copyright infringement.11 Similarly, unless the application for registration of copyrights is filed with the Copyright Office within three months of first publication of the work or prior to infringement,12 certain valuable remedies are not available to the copyright holder—including the right to receive statutory damages up to $150,000 per work infringed, attorney fees and costs, injunctions, and impounding and disposition of infringing articles.13
Additional benefits to registering copyrights include that registration “made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.”14 Registration also permits the copyright owner to establish a record with U.S. Customs and Border Protection to protect against the importation of infringing copies of a registered work.15
Furthermore, being able to attach a copy of a certificate of registration to a demand or cease and desist letter sent to an alleged infringer of a registered work will give the letter significant weight and increase the likelihood that the infringer will stop the unauthorized use and perhaps even pay some damages to the copyright holder for the unauthorized use—and prevent the need for a costly litigation.
So, while copyright registration is not technically required, paying the current application fee of $35 (for a single work by an individual author who is also the claimant, with an electronic application) or $55 (for all other electronic applications)16 is a bargain to entitle the copyright holder to all of these benefits. Anyone who posts a work on an Internet website without first registering it (see myth #1) risks unauthorized use for which enforcement options would be limited.
Myth #4: The 30 Seconds/500 Copies/Two-Thirds/200 Words Rule
The final myth is that permission or a license is not needed if only a certain number of copies are made or a certain amount or percentage of the work is used, and that sticking to these arbitrary numbers automatically qualifies the unauthorized use as “fair use” under the Copyright Act.
With acknowledgments for creativity, there is no bright-line rule that making fewer than a certain number of copies or using less than a certain amount of a work somehow makes copyright infringement permissible under copyright law. Unless a use falls explicitly under one of the enumerated limitations on a copyright holder’s exclusive rights set forth in the Copyright Act,17 permission must be sought from the rights holder to reproduce, distribute, publicly perform, publicly display, and/or create derivative works of a copyrightable work—whether or not it is registered with the Copyright Office.
Moreover, to determine whether a use that does not fall into one of the statutory limitations qualifies as fair use depends on the analysis and application of four nonexclusive factors:
- The purpose and character of the use;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole;and
- The effect of the use upon the potential market for or value of the copyrighted work.18By way of example only, the Supreme Court held that the use of 300 words verbatim from a 200,000- word unpublished manuscript of the memoirs of former President Gerald Ford constituted copyright infringement,19 and the Sixth Circuit held that a filmmaker’s repeated sampling of two seconds of a copyrighted sound recording similarly constituted infringement and not fair use.20In short, do not rely on any so-called bright-line rule that purportedly allows use of a copyrighted work
The Intellectual Property Law Landslide July/August 2019 Section
without permission based simply on arbitrary numbers. Always get permission from the rights holder unless it is certain that your use is permitted by the Copyright Act.
While many discussions of copyright are reliable and based on law and fact, there are numerous misconceptions and inaccuracies that have become part of the public lore regarding copyright. Not everything written on the Internet about copyright law is true, even if it may be eligible for copyright protection. Creators and content users need to know the real copyright rules and follow them. Spread the word—in your own language, of course, without copying anyone else’s content without permission. n
1. Redd v. Epic Games, Inc., No. 2:18-cv-10444 (C.D. Cal. filed Dec. 17, 2018); Ribeiro v. Epic Games, Inc., No. 2:18-cv-10412 (C.D. Cal. filed Dec. 17, 2018); Ferguson v. Epic Games, Inc., No. 2:18-cv-10110 (C.D. Cal. filed Dec. 5, 2018). All three lawsuits were retracted in March 2019 because the complaints were based on applications for reg- istration and not registered copyrights. See the related discussion under myth #3.
2. Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018).
3. 17 U.S.C. §§ 102(a), 302. This term of protection applies to works created on or after January 1, 1978. Protec- tion for unpublished works owned by an entity is 120 years from the date of creation. Copyright protection expires on December 31 of the applicable year. Id. § 305.
4. Id. § 304.
5. See Anandashankar Mazumdar, Published Works Enter the Public Domain in the United States for First Time in Twenty Years, Copyright: Creativity at Work (Jan. 4, 2019), https://blogs.loc.gov/copyright/2019/01/ publicdomain/.
6. 17 U.S.C. § 105.
7. Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018).
8. 17 U.S.C. § 504(c)(2). Additionally, if copyright management information such as a copyright notice or other
identifying information about a work available online is removed when the work is used without authorization, the rights holder is entitled to additional statutory damages up to $2,500 per work, regardless of whether the work is reg- istered. Id. § 1202(c)(3).
9. Id. § 301(a).
10. Id. § 102(a).
11. 139 S. Ct. 881 (2019) (holding that copyright owners cannot file a copyright infringement lawsuit until the
Copyright Office has issued a certificate of registration (or a refusal of registration) for the work allegedly infringed instead of relying on an application for registration of copyrights); see also 17 U.S.C. § 411.
12. 17 U.S.C. § 412.
13. Id. §§ 502–505. The Supreme Court recently clarified that “full costs” available to a party in copyright litiga- tion only extends to six enumerated categories specified in the general costs statute, 28 U.S.C. §§ 1821, 1920, and does not include costs for expert witness fees, jury consulting fees, or e-discovery fees. See Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873 (2019).
14. 17 U.S.C. § 410(c).
15. Id. § 502. For details on the application process, see Intell. Prop. Rts. e-Recordation, https://iprr.cbp.gov/ (last visited June 12, 2019).
16. For the current fee schedule, see Fees, U.S. Copyright Off., https://www.copyright.gov/about/fees.html (last visited June 12, 2019). In 2018, the Copyright Office proposed a new fee schedule, see 83 Fed. Reg. 24,054 (May 24, 2018), and new fees may be adopted in the near future.
17. 17 U.S.C. §§ 107–112, 117, 119, 121–122.
18. Id. § 107.
19. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). 20. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).
Published in Landslide Volume 11, Number 6, ©2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.