Ten copyright rules that still lead smart people astray.

IP
October 10, 2005
SUPPLEMENT TO LEGAL TIMES

Myths
of

Creation
great deal of information about copyright law is available in books, newspapers, and magazines; on the street; and over the Internet. While much of this information is reliable, some of it is should believe:

By Janet Fries

inaccurateor only accurate when applied in specific circumstances. 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

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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, his screenplay, his poetic song cycle by mailing himself a copy of that work and then preserving, but not opening, the envelope 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 Copyright Office. This leads us to Myth No. 2.

1.

The Poor Mans Copyright

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 Registration Isnt Necessary Theory

This is not exactly false, but it could certainly 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 permission, 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 registration, the ill-used author cannot win statutory damages or attorney fees. Here is an all-too-common scenario: An author writes a story or a song. Someone copies and posts it on an Internet site without permission from the author, without compensation to the author, and without attribution. The author discovers 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-benefit 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

2.

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 category 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 couples 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, I should mention that the paper did publish a correction. ) Fair use may be asserted as an affirmative defense in certain 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 100CD rule and no 50-CD rule.

3.

The 500-CD Rule

This 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, for example, 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.

4.

The Two-Thirds Rule

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 without seeking permission.

5.

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 200,000word unpublished manuscript of former President Gerald Fords memoirs.

Yet another rule attempting to quantify 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 seconds of a copyrighted sound recording constituted infringement. 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 campaigns use of 15 seconds of its opponents campaign song in a political advertisement constituted fair use.

6.

The 30 Seconds of Music Cutoff

The Use (D) For Drawings 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 .

7.

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 the public 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 BrillatSavarin 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 sound recording made rather more recently by the National Symphony Orchestra is not. This means you may play a Beethoven 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 a Green Light Rule

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.

8.

The Go Ahead If The Authors Very Dead Exception

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, that 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 photographers work to low-resolution thumbnail images was sufficiently transformative. But simply translating a work from one medium to another is 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 underlying work. You can be sure that the producers of the movies based on the Harry Potter books obtained (and paid handsomely 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 exhibited in galleries and museums, his works were accepted as

9.

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, Tshirts, etc. that include a reproduction of one of the paintings. The foundation also refers those parties to the Campbell Soup Co. so that they can obtain licenses from Campbell to produce such derivative works.

because, among other reasons, the subject of the parody was not the work of Theodore Geisel aka Dr. Seuss.

This rule contains a significant element 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 sculptural 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

10.

The Parody Not Prohibited Rule

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 reduce the amount of damages you owe. So forget the myths. Its not the law just because it is written somewhere. Creators and content users need to know the real copyright rulesand follow them. The author would like to thank Luna M. Samman, an associate 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 janet.fries@dbr.com.