Top 10 Urban Copyright Myths
by Richard Keyt
The Internet has spanned many urban legends about copyright laws. Copyright myths travel at light speed and replicate their plausible, but flawed logic at the touch of a computer key. The following is KEYTLaw's unscientific list of the top ten copyright myths.
10. You must be a citizen of the United States to claim the benefits of U.S. copyright laws.
Not true. 17 U.S.C. § 104. Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author. Published works are eligible for copyright protection in the United States if any one of the following conditions is met:
9. If I modify a copyrighted work, I create a new work in which I hold the copyrights.
Sorry, but no. 17 U.S.C. § 106. Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create a new version of that work. You cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent. Derivative works may be copyrighted, but only the owner of the copyright or someone with the owner's consent can create a derivative work. 17 U.S.C. § 103; see Circular 14.
8. To obtain a copyright on a work, you must register the work with the United States Copyright Office.
Negative. 17 U.S.C. § 201(a). The way in which copyright protection is secured is frequently misunderstood. Copyright protection arises automatically when a work is created. A work is "created" when it is fixed in a copy or phonorecord for the first time. No publication or registration or other action in the Copyright Office is required to secure the copyright. There are, however, certain definite advantages to registration. See "Copyright Registration."
7. It is legal to copy a work if you give the copyright holder full credit.
Nope. 17 U.S.C. § 106 The owner of a copyright has EXCLUSIVE rights to do and to authorize any of the following:
There are some exceptions to this rule. The most used exception is the "fair use" rule.
6. It is legal to copy or distribute a work if you do not copy all of it.
Maybe, but it depends on what you do. Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentages of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See Circular 21 and FL 102.
5. A copyright owner may not sue for copyright infringement if the owner did not register the copyright with the U.S. Copyright Office.
Another false statement. 17 U.S.C. § 501(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of Section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. To bring an infringement action, the owners of the copyright must first register the copyright, which can be done at any time before filing suit. It is best to register a copyright because it gives the owner the following benefits:
4. If a work does not have the © or say "copyright," it is in the public domain and can be freely copied and distributed.
You guessed it. This is not a true statement. 17 U.S.C. § 401. A copyright notice was once required as a condition of copyright protection, but it is now optional. Any copyright owner can use the copyright notice without advance permission from, or registration with, the Copyright Office.
3. I hired a web site designer to develop my web site and I own the copyright to my web site.
Probably not true. Under the copyright law, the creator of the original expression in a work is its author. 17 U.S.C. § 201(a). The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as the owner of a web site. 17 U.S.C. § 201(d) Although the general rule is that the person who creates the work is its author, an exception to the rule is a work made for hire. A work for hire is:
When a work qualifies as a work made for hire, the employer or commissioning party is considered to be the author. See Circular 9.
If your web site was created by an employee whose job function included designing and developing the web site, then you own the copyright to your web site. Unfortunately, most web sites are created by outside consultants who under copyright law will be the owner of the copyright to the web site unless the consultant provides the web design and development services under a written agreement in which the parties acknowledge that the work is a work for hire and the author assigns to the web site owner all copyrights arising from the consultant's services.
2. If a work such as a Metallica song is on Napster, Gnuetella or another peer to peer file sharing web site, it is in the public domain and can be freely copied.
Definitely not true. This is a corollary to Myth #1. See below.
1. If a work is on the Internet, it is in the public domain and can be freely copied and distributed.
The internet may be a new phenomena and developed long after U.S. copyright laws were enacted, but it is not exempt from copyright law. Courts do not have any difficulty applying traditional copyright laws to web sites and the internet. The owner of a copyright enjoys certain exclusive benefits, which include the rights to reproduce, distribute and display a work. Without the consent of the owner of a copyright, it is copyright infringement to place the work on the internet or to download/copy it from the internet. 17 U.S.C. § 106; see A&M Records vs. Napster, Inc.
About the Author
Richard Keyt is a business and contracts attorney licensed to practice law in Arizona. Rick can be reached by telephone at 602-906-4953, ext. 3, email at firstname.lastname@example.org and fax at 602-297-6890. Rick's internet, e-commerce and domain name law web site is KEYTLaw, located at www.keytlaw.com. Communicating with Richard Keyt via email, telephone or otherwise does not cause you to become a client of Rick's or of KEYTLaw, LLC, or cause your communications to be confidential or subject to the attorney client privilege.
This article was first published on April 14, 2001.
This page was last modified on December 12, 2009.
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