Whether you’re an artist, a business owner or an average person, understanding copyright law is critical. This is especially true because the cost of infringing on someone else’s copyright can be steep. However, there are a number of misconceptions surrounding copyright protection that can lead to costly mistakes for entrepreneurs and small businesses alike. Here are The 3 Biggest Misconceptions Surrounding Copyright Infringement:
Myth #1: Anything that is publicly accessible is in the public domain.
While it’s true that there are certain kinds of works that are automatically put into the public domain, such as the work of a dead person or a public service announcement, the vast majority of works enjoy exclusive copyright protection. Even if a work is posted on the Internet, it’s still protected unless it falls into one of the exceptions to the rule.
Myth #2: If you make a minor change to a protected work, it’s fair use.
Many people mistakenly believe that making a slight modification to an original work, such as taking five seconds of a song and cutting it off at the end, is fair use because that’s what happens in the movies when a director uses a short clip from a movie without permission. However, this is far from the case. While courts may reduce the amount of damages a person is liable to pay if they can show that they weren’t actually intending to infringe on a copyright, this is generally a very difficult standard to meet.
In fact, courts have made it quite clear that the right to copy protects the creative process of reducing an idea into a material form. For this reason, it’s impossible for someone to copyright an idea itself — but the author can have a copyright in his or her specific expression of the idea. This is why you can’t have a copyright in the generic idea of a group of friends traveling across the country, but you can have a copyright in your travel journal about that trip.
Myth #3: The laws of the country where infringement occurs govern how to assess copyright infringement.
In order to sue for copyright infringement, the plaintiff must prove three things: 1) that the claimant has a valid copyright; 2) that the defendant copied the claimed work; and 3) that the copying constitutes a “substantial part” of the claimant’s skill, labour and judgment. Courts have consistently declined to develop a bright line test for what constitutes a substantial part, instead leaving that decision to the individual judges and juries in each case.
Myth #4: A certificate of registration is required to bring a civil copyright infringement lawsuit.
Although a certificate of registration is not required to bring a copyright infringement suit, it can be very helpful when the work that has been infringed upon is registered and a demand letter or cease and desist letter is sent to an alleged infringer. It can help bolster the weight of a claim for statutory damages (the amount awarded for a work that has been unreasonably infringed) and to increase the likelihood that the alleged infringer will stop the unauthorized use and potentially agree to a settlement.
Copyright is not the type of subject that generally lends itself to clickbait articles, but I've noticed a number of recent pieces that purport to go full-on MythBusters on various copyright myths.
Some of these have been pretty entertaining, but others seem to be trying to mislead readers into believing things that are simply untrue. So, without further ado, here are The 3 Biggest Misconceptions Surrounding Copyright Infringement.
The most common misconception about copyright is that merely because someone pays money to publish something, they automatically gain ownership of that work. This is not true; instead, the creator of a work retains a set period of time in which they have exclusive rights to copy, issue copies and perform or communicate the work. Unless they take action, those rights remain with the author until their expiration date.
Another misperception is that if a work doesn't contain a copyright notice, it is not protected by copyright law. While a lack of a notice does create a presumption that the work is not copyrighted, it can be overcome with other evidence. The fact that a work is published online does not automatically give it copyright protection, either. In fact, there are many works that have been published online and never receive any copyright protection at all.
Many people also misunderstand the concept of fair use as a defense to copyright infringement. The law is clear that a person may not infringe upon someone else's copyright if their use of the work is "fair." However, this is not a slam-dunk defense; it is reviewed on a case by case basis. Fair use must be transformative and only minimally erode the value of the original work. It must also be a "substantial part" of the original work, which is difficult to define and is determined on a case-by-case basis.
Finally, people often misunderstand the concept of statutory damages in copyright infringement cases. It is important to remember that if a copyright is infringed, the creator can seek statutory damages of up to $150,000 for each instance of infringement. This amount can be a significant sum of money, and it is one of the reasons why copyright infringement should not be taken lightly. However, it is also important to note that a court may reduce those damages if the defendant was not willfully infringing upon the copyright. This is known as the "innocent infringer" doctrine. However, this doctrine only applies to statutory damages, and does not apply to actual damages. The amount of statutory damages awarded depends on the quality and popularity of the infringed work, its economic impact and the level of infringement. This is why it is so important for copyright owners to make sure that their work has a proper copyright notice and that it is properly protected. Otherwise, it may be difficult to get the statutory damages that they deserve.
