5 Myths About Copyright

There are a number of popular myths about copyright protection that deserve to be dispelled.  Even as the average writer or filmmaker has become more sophisticated, certain silly myths still survive.  In this article, I’ll be talking about five of them; this is not a complete list.

There is much more about these myths in “Volume 2 – Rights” of the What Every Filmmaker Needs to Know About the Law series.

1)  Copyright isn’t effective until it’s registered

Many people believe that copyright is not effective until it is registered with the Library of Congress.  That’s not true.

Although there are several benefits to registering a copyright, the copyright itself is effective as soon as a work is created.  “Created” under copyright law means that the work is fixed in a tangible medium of expression that can be shared with other people.

So, as soon as the words are on the page, or the performance is put on film or tape or some other means of recording, it is copyrighted.

2)  The “c” in the circle is required for copyright to be effective

In the olden days (before 1989), in order for a copyright to be in effect and remain effective, the author of the work was required to give notice to the public by putting a copyright notice on the work.   No longer.

As we learned above, copyright is effective as soon as the work is created.  There is no requirement that the author put a notice of copyright on his or her work.

There are advantages, however, to doing so.  One is that it puts other people on notice that you are claiming the copyright, which eliminates the “I didn’t know” defense to an infringement claim.  Actually, “I didn’t know” isn’t a complete defense, but it may reduce the amount of damages an infringer has to pay.

If you decide to put a notice on your work, be aware that there are rules as to format: 
first, © OR the word “copyright” OR the abbreviation “copr” (no other variations are acceptable);
second, the year;
third, the name of the copyright owner (note that the owner may be different from the author, but usually they are the same at the time of creation).

3)  I paid someone to create the work, therefore I own it

Just because you hired someone to write a script for you, or help you make your movie, does not mean that you own the copyright in their contribution.

Under the “work for hire” rule of copyright law, if someone creates a work in the ordinary course of their employment, the employer owns the copyright.  However—and this is where people get confused—if creating the work isn’t actually part of their job description, the “work for hire” rule doesn’t apply.

Likewise, if you hire an independent contractor, or someone is working as a volunteer, you don’t own the rights to their work automatically.

In these cases, the rights must be transferred in a writing (usually a contract, but it could be a simple assignment) stating that the parties agree the results and proceeds of the services rendered are a “work for hire” that the employer or person paying owns.

4)  I can use a small amount of a copyrighted work for free

It does not matter how much or how little of someone else’s work you are stealing, it is still stealing.  (Just because a thief takes $100 instead of $500 doesn’t make him or her less of a thief.)

Many people have heard the term “fair use” and think it applies to them if they’re using only a small excerpt from a copyrighted work or if they’re not making money from it.

Not true.

“Fair use” has specific guidelines in copyright law, and several factors are weighed (and may be weighed differently in different cases). Among the factors are: (a) the purpose and character of the use, including whether it is for commercial or educational purposes; (b) the nature of the copyright work; (c) the amount and substantiality of the portion used in relation to the work; and (d) the effect of the use on the potential market for the copyrighted work.

There is no absolute rule about what is and is not fair use (it is left up to judges and juries to decide in each case). In general, fair use applies only to teachers and critics who are commenting on the work. Just know that if you are simply using someone else’s work because it sounds good or fits in with your work, that’s not fair use.

5)  Sending a copy of my script to myself takes the place of registration

This myth was created by someone who didn’t think it through.  Sending a copy to yourself has no legal effect, even though it may show a postmark date.

Think about it:  someone could send an empty envelope and seal it later; or they could open it and re-seal it.  From a legal standpoint, it would be very hard to prove “chain of custody” and that the package was never tampered with.  Furthermore, all the envelope could prove is a date it was sent, which is not an issue under copyright law.

Don’t waste your time or money doing this.  Copyright registration, which gives actual protection, is relatively easy and inexpensive.  You can get more information about copyright at the U.S. Copyright Office website at www.copyright.gov.

As part of my law practice, I help people with copyright registrations and licensing. Feel free to contact me if you need such help.

© Keith E. Cooper. All rights reserved. You may freely link to this post, but please do not copy (in whole or in part) without permission of the copyright owner.

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