Burns & Levinson LLP

Copyright is a form of intellectual property rights providing owners of creative content with the exclusive right to reproduce, prepare derivative works, distribute copies, publicly perform, publicly display, and publicly transmit their work. These rights vest automatically at creation; however, generally, registration is required in order to enforce a copyright in court. Copyright protects “…original works of authorship fixed in any tangible medium of expression…” but the threshold for both creativity and originality has been interpreted as being very low – requiring only a minimal degree of creativity.

Unlike patent and trademark applications, copyright applications are low cost and subject to less vigorous examination, making them arguably one of the most user-friendly forms of intellectual property registrations for creators to seek without an attorney. However, misconceptions about copyright protection are pervasive. Below are our top five myths on copyright protection, debunked for your reading pleasure:

  1. “As long as I include a credit to the author, I do not need to ask for permission.”

Failing to credit an author of a work is considered “plagiarism” and can be a violation of someone’s copyright rights. However, the reverse – crediting the author to mitigate against a copyright infringement claim – is not true. Copyright protects the owner’s exclusive copyright rights detailed above. Any violation of these rights may expose you to a claim for copyright infringement regardless of whether or not you credit the author.

  1. “I do not need someone’s permission or license to use their copyrightable content as long as I am not making any money and/or there is some educational or entertaining purpose for my use.”

As detailed above, any violation of a copyright owner’s exclusive rights may expose you to a claim for copyright infringement regardless of whether or not you are making money. U.S. copyright law does recognize a limited defense called “fair use” where someone may have a defensible right to use a copyrighted work without the owner’s permission. Fair use cases are very fact-specific, and judges typically look at the totality of the circumstances, considering how the work is being used, how much of the work is used, whether the work is entitled to strong or weak copyright protection, what the impact is on the copyright owner, and other factors based on the situation. While a non-profit, educational use is more likely to be considered a fair use than a commercial use, but there is no bright-line rule that all non-profit, non-monetized and/or educational uses are fair uses. Furthermore, just because your use seems merely parodic or used in fun or for entertainment purposes does not automatically create a defense to the illicit or unauthorized copying. In short, each determination as to what is “fair use” will depend entirely on the situation.

  1. “I do not need to bother registering my copyright claim with the Copyright Office.” Or “I need to register everything I have ever created with the Copyright Office.”

Much, if not most, creative content eligible for copyright protection is not registered with the Copyright Office. Technically, creative content is protected by copyright upon its creation. However, in the U.S., you generally cannot file a lawsuit based on copyright infringement until you have a copyright registration in hand. In addition, if you do not register the copyright until after infringement occurred, your options for damages may be limited. For example, only works registered before they were infringed are eligible for attorneys’ fees. The filing fees for copyright registration are extremely modest, making copyright registration one of the most cost-effective forms of intellectual property protection. However, most forms of a copyright application only cover one work so it is not practical to cover every work ever created. In general, best practice is to register the works that are of the most value to you and/or that you believe stand to be the biggest targets for infringement.

  1. “If I paid someone to create something for me or my company, I own what they create.”

U.S. copyright law statutorily requires that ownership transfers be accomplished via a written agreement unless the work qualifies as a “work for hire.” In general, a “work for hire” is a narrowly defined category of work which requires that the work was created either (1) by an employee within the scope of their employment, or (2) by a non-employee – including an independent contractor – through a signed, written agreement that specifies the work is created as a work for hire, but only if the work is a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas. You can read more about this topic here.

  1. “If I found it on the internet, it is in the public domain and I can use it how I want because I can just download it.”

The ability to copy a work does not necessarily mean you have the legal right to copy a work. The internet is a powerful distribution platform, but copyright owners do not give up their exclusive copyright rights by promoting their works on the internet. In addition, not every piece of content uploaded to the internet is uploaded by someone authorized to grant permission to others to use the work. So before using a work you found on the internet, you should do some investigation to figure out who the creator is and what rights, if any, they are providing to you through the display of their work online. Some creators do distribute their works for all or some purposes online by posting license language, including Creative Commons, GNU, or other “copyleft” licenses alongside their work. If your proposed use is authorized by the owner’s license language and you have no reason to believe the owner is not the owner, you may feel comfortable proceeding without further confirmation from the owner. But if the content is accompanied by “All rights reserved,” is silent on authorized uses, or the person posting is clearly not authorized by the owner to grant you any permission – for example, a blogger posting an image of a Picasso painting – then using the work without further permission may be highly risky.

In short, if you create content, think through what your registration strategy should be, bearing in mind that you have stronger enforcement options if you register with the Copyright Office early on in the creation of the work. If you use other people’s content, think through whether you need their permission to do so before proceeding. When in doubt, reach out to your attorney.

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