ARTICLE Ten Copyright Rules ... Janet Fries Legal Times 1005_v1

7/28/2019 ARTICLE Ten Copyright Rules ... Janet Fries Legal Times 1005_v1

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great deal of information about copy-

right law is available in books, newspa-

pers, and magazines; on the street; and

over the Internet. While much of this

information is reliable, some of it is

inaccurateor only accurate when applied in specific circum-

stances. Worse, some of it is just flat-out wrong.

But an odd thing has happened: Certain misinformation has

been repeated so often and with such convincing detail that it

has acquired standing. Certain misinformation has apparently

gained credence just by hanging around. Some copyright tales

have become the legal equivalent of urban myths. And smart

people are relying on these myths to their detriment.

So, as a public service, I would like to debunk some of

these myths. Here are 10 copyright legends that no one

should believe:

2005 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times

(1-800-933-4317 [email protected] www.legaltimes.com).

PIOctober10,

2005

SUPPLEMENT TO LEGAL TIMES

Ten copyright rules that still lead smart people astray.

By Janet Fries

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The Poor MansCopyright

This cockeyed theory has lasted for a

very long time and is surprisingly popular

with freelance writers. All too often

authors tell me that, although they have not filed with the

U.S. Copyright Office, they have the protection of a poor

man's copyright.

The myth is that an author can protect his novel, hisscreenplay, his poetic song cycle by mailing himself a copy

of that work and then preserving, but not opening, the enve-

lope when he receives it in the mail.

Let me assure you that this is a waste of an envelope, a

stamp, and a trip to the post office. Mailing yourself a copy

of your work has no legal effect whatsoever. The only way to

register a copyright is to file an application with the Copy-

right Office.

This leads us to Myth No. 2.

The Registration IsntNecessary TheoryThis is not exactly false, but it could cer-

tainly be characterized as shortsighted and

ill-advised. It is true that under current law,

registration with the Copyright Office is not required for

works created after Jan. 1, 1978. Provided it is sufficiently

creative and original, an author's work is protected by federal

copyright law as soon as the idea is fixed in a tangible

medium of expression.

This means that telling a friend, or a number of friends,

about a great idea for a short story or screenplay does not

guarantee any rights under copyright law. But as soon as the

idea is expressed tangiblyfor example, by writing it or

painting it or filming itthe work is protected by copyright

law. Then, if someone copies the work without getting per-

mission, the author can assert infringement.

But an author or other copyright owner cannot actually

sue an infringer until an application for registration has been

filed with the Copyright Office (17 U.S.C. 411). And certain

valuable remedies are not available unless the registration

was filed within three months of the first publication of the

work or prior to the infringement. Without timely registra-

tion, the ill-used author cannot win statutory damages or

attorney fees.

Here is an all-too-common scenario: An author writes astory or a song. Someone copies and posts it on an Internet

site without permission from the author, without compensa-

tion to the author, and without attribution. The author dis-

covers the copying and writes a letter demanding that the

work be removed from the site. The copier either ignores the

letter or responds by saying Go sue me!

The savvy copier knows that unless the author has filed a

timely registration, bringing a lawsuit may fail any cost-ben-

efit analysis. With statutory damages unavailable, the author

must demonstrate an actual loss from the infringement to

receive damages. Dan Brown or Kanye West probably could,

but not everybody has that kind of track record. And with

attorney fees unavailable, the author must pay his lawyers

fees even if he wins.

Therefore, although not technically required, copyright

registration is highly recommended. At a filing fee of only

$30, its affordable protection even for authors who are not

writing best sellers.

The 500-CD Rule

This one I read about in The New York

Times. An April 17, 2005, article, entitled

With This CD I Thee Wed, offered this

astonishing advice for creating CD mixes

as wedding favors:

As long as couples don't make more than 500 copies or

charge for them, wedding CDs fall under the fair use catego-

ry of copyright law.

Or not. There is no fair-use exception for wedding CDsor

for birthday CDs or for bar mitzvah CDs, either. Imagine if cou-

ples marrying suggested to the caterer or the florist that since

there were fewer than 500 guests, they did not need to pay for

the food or the flower arrangements! (In fairness to the Times, Ishould mention that the paper did publish a correction. )

Fair use may be asserted as an affirmative defense in cer-

tain circumstancessuch as for news reporting, commentary,

or criticismbut there are no bright-line rules that allow for

songs to be copied on any particular number of CDs, then

distributed, without a license or other authorization from the

copyright owner.

In other words, there is also no 200-CD rule and no 100-

CD rule and no 50-CD rule.

The Two-Thirds RuleThis fractional fiction is another attempt to

draw a bright line between legal and illegal

borrowing from pre-existing works. The rule

states that if two-thirds of a work is original,

then the author may copy the remaining one-third from other

sources without asking permission.

But there is no such bright line. Indeed, there is very little

predictability in what fair use covers.

The equitable doctrine of fair use was first developed by

the courts and later codified (at 17 U.S.C. 107) as four

nonexclusive factors to be considered in each specific case

The Supreme Court has provided some guidanceread, forexample, the discussion of fair use in Campbell v. Acuff-Rose

Music(1994) in the context of 2 Live Crews parody of Roy

Orbisons Oh, Pretty Woman. But application of the four

factors varies from case to case.

The 200-Word Limit

Another imaginative take on fair use,

this rule asserts that copying up to 200

words of text, any text, is allowable with-

out seeking permission.

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No such luck. Indeed, the Supreme Court in Harper &

Row, Publishers Inc. v. Nation Enterprises (1985) rejected

The Nation magazine's fair-use defense despite the fact

that it had used only 300 words verbatim from a 200,000-

word unpublished manuscript of former President Gerald

Fords memoirs.

The 30 Seconds ofMusic Cutoff

Yet another rule attempting to quanti-

fy permissible copying, this one states that

up to 30 seconds of music can be borrowed

without obtaining permission. You know the mantra: No

bright lines for fair use.

On the one hand, the U.S. Court of Appeals for the 6th

Circuit in Bridgeport Music Inc. v. Dimension Films (June

2005) found that a filmmakers repeated sampling of two sec-

onds of a copyrighted sound recording constituted infringe-

ment. On the other hand, the U.S. District Court for New

Hampshire held in Keep Thomson Governor Committee v.

Citizens for Gallen Committee(1978) that one political cam-paigns use of 15 seconds of its opponents campaign song in

a political advertisement constituted fair use.

The Use (D) ForDrawings Rule

This admonition actually has some basis

in fact. Placing the symbol (D) on a work is

a recognized form of copyright notice, but

not for all drawings and designs, or even for all technical

drawings. It is only used for vessel hull designs, as provided

by the Digital Millennium Copyright Act (17 U.S.C. 1306).

Generally, when drawings or designs are sufficiently original

and creative to receive copyright protection, the correct

notice is the better-known symbol .

The Go Ahead If TheAuthors Very DeadException

Many works created by authors who

died years ago certainly are in the public

domain. But death isnt the only factor to consider.It is generally safe to copy the works of authors who have

been dead for a very long time. The plays of William

Shakespeare and the novels of Jane Austen are definitely in

the public domain.

And we can assume that works by living authors and

authors who just recently died are still protected because

the current law is clear: Copyright protection for works

created by an individual author on or after Jan. 1, 1978,

endures for the life of the author plus 70 years (17 U.S.C.

302). Thus, the books of the living Norman Mailer and the

recently dead Hunter S. Thompson are protected and will

be for some time.

But for many works that existed before the enactment of

the current law, it can be tricky to calculate just how long

copyright lasts. Due to the Sonny Bono Copyright Term

Extension Act, protection for works created before 1978 can

extend up to 95 years from first publication (17 U.S.C. 304)

This means that some of the novels of F. Scott Fitzgerald and

Ernest Hemingway, who arguably have been dead for a very

long time, are still under copyright protection.

More complications can arise in relation to specific editions

of works. For example, although Romeo and Juliet is in thepublic domain, a particular edition with helpful footnotes, an

introduction, and explanatory essays may be protected by

copyright. You may copy, O Romeo, Romeo! wherefore art

thou Romeo? but not the more recent commentary.

Translations may also present complications. Jean Brillat-

Savarin wrote The Physiology of Taste in 1825 and died the

following year, so this work is in the public domain. But

M.F.K. Fisher translated the book into English in 1949, and a

new translation by Fayette Robinson was published in 2004.

You may freely copy the original French version, but both

translations are protected by copyright.

Similarly, Ludwig van Beethoven has been dead since

1827, so his works are in the public domain. But a soundrecording made rather more recently by the National

Symphony Orchestra is not. This means you may play a Bee-

thoven sonata on your piano, but you cannot copy a sound

recording of someone elses recent performance of that

sonata without authorization from the recording company.

The New Medium Is aGreen Light Rule

This rule is not all myth, either.

Whether there has been transformation of

the original work, and not just mechanical

reproduction, is considered by courts in

determining if there has been infringement and if there is a

fair-use defense.

The Supreme Court noted in the Acuff-Rose case that

the more transformative the new work, the less will be

the significance of other factors, like commercialism, tha

may weigh against a finding of fair use. More recently

the 9th Circuit in Kelly v. Arriba Soft Corp. (2003) found

that an Internet search engines reduction of a photogra-

phers work to low-resolution thumbnail images was suffi-

ciently transformative.

But simply translating a work from one medium to anotheris generally not enough. When a literary work is transformed

into a film, or a poem is set to music, the author of the new

work must seek authorization from the author of the under-

lying work. You can be sure that the producers of the movies

based on the Harry Potter books obtained (and paid hand-

somely for) J.K. Rowling's permission.

Other transformations do fall under fair use. One famous

example is Andy Warhol's paintings of Campbell soup cans

When Warhol took small-scale, three-dimensional consumer

products, which are seen in supermarkets and kitchens, and

made large-scale, two-dimensional artwork, which is exhibit-

ed in galleries and museums, his works were accepted as

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noninfringing. The artist transformed the underlying material

enough to avoid an infringement action.

But Warhol is the exception, not the rule. Generally, it is

necessary to get permission before any creative effort to

transform an existing work into another medium. In fact, it

is interesting to note how the Warhol Foundation currently

handles derivative works based on the soup-can paintings.

The foundation grants licenses to parties to make posters, T-

shirts, etc. that include a reproduction of one of the paint-

ings. The foundation also refers those parties to the CampbellSoup Co. so that they can obtain licenses from Campbell to

produce such derivative works.

The Parody NotProhibited Rule

This rule contains a significant ele-

ment of truth. Parody, like criticism and

news reporting, is often recognized as

fair use. But the parody must be about the underlying work and

not just created in the same style as the underlying work. That

is, the original work must be the subject of the parody.For instance, when the artist Jeff Koons made a sculp-

tural work, String of Puppies, based on a photograph by

Art Rogers, he was held to have infringed. The 2nd Circuit

in Rogers v. Koons (1992) found that even if Koons' work

could be characterized as satire or parody, it was an

infringement because the satire or parody in the work was

directed at society in general and not specifically at the

work of Rogers.

Similarly, when an author created a book about the O.J.

Simpson trial in the style of childrens book The Cat in the

Hat, the 9th Circuit in Dr. Seuss Enterprises LP v. Penguin

Books U.S.A. (1997) upheld a preliminary injunction

because, among other reasons, the subject of the parody was

not the work of Theodore Geisel aka Dr. Seuss.

So let's review: Authors and other copyright owners

should register their works with the Copyright Office. If

authors are sampling or otherwise borrowing from the work

of others, they should seek permission, just as they would

want other authors to ask permission of them. (Sometimes,good manners and the law are consistent.)

Content users should take steps to clear rights before making

use of existing works. The fact that a work can be accessed

from the Internet does not mean it is in the public domain or

otherwise up for grabs. If there is any uncertainty as to whether

something can be copied, inquiries should be made. Assuming

that a particular appropriation will be considered fair use can

be risky; one should obtain permission or seek legal advice.

The Copyright Act is a strict liability statute. This means

that 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, you can plead

innocent infringement, but even that only serves to reducethe amount of damages you owe.

So forget the myths. Its not the law just because it is writ-

ten somewhere. Creators and content users need to know the

real copyright rulesand follow them.

The author would like to thank Luna M. Samman, an asso-

ciate at Drinker Biddle & Reath, for her research assistance

Janet Fries is counsel in the D.C. office of Drinker Biddle &

Reath. Her practice is focused on copyright, trademark,

entertainment, and Internet law. Fries also serves on the

board of directors of Washington Area Lawyers for the Arts

She can be reached at [email protected].

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ARTICLE Ten Copyright Rules ... Janet Fries Legal Times 1005_v1