Mythbusters: That’s Just Not Fair (Use)

Photo by Sam Teigen, some rights reserved.

Following on from last month’s woo-fest and my recent twitter rant about solicitors who use the terms ‘copyright’ and ‘trade mark’ as if they were interchangeable, the following is an explanation of some common copyright myths.

Consider it a public service announcement brought to you by In-House Hotshot.

Myth 1: You need to register your work before copyright applies.

Copyright is a right that arises automatically upon the creation of a qualifying work. In the uk (and Berne convention countries) no act is required to crystallise your copyright.

Myth 2: If there’s no copyright notice on your work it’s not protected.

Just as there is no requirement for registration of your copyright, there is no requirement that you put any form of notice on your work.

It is however good practice to include (c) [year of creation] [author’s name] on your work as evidence of your claim to copyright in the material. This will be useful in the event of any claim of infringement and also to put any potential infringer on notice that you claim copyright in the work.

Myth 3: Posting yourself a copy of your work will prove you own the copyright in it.

The so-called poor man’s copyright has little or no value. While an unopened envelope (with a postmark) may be considered evidence that you have posted yourself a copy of the material before that date it does not provide any evidence that you created the work and certainly provides no greater evidence than the use of a copyright notice.

There is obviously significant scope for this method to be abused and in any case computer files and emails etc provide a much more useful time stamp.

Myth 4: Copyright subsists in the name of celebrities. OR My business name is protected by copyright.

Copyright will only subsist in a work that demonstrates significant skill or work in its creation. As such, there is no copyright in single words or short phrases (and if there were no one else would be allowed to use that phrase anywhere). Similarly there is no copyright in a person or business’s name although it maybe a valid trade mark.

Myth 5: If I found it online copyright does not apply.

This is a common misconception arising from a misconstruing of ‘public domain’. If a work is in the public domain then copyright does not apply to it. However public domain does not just mean that the work is available to the public. Work has to be deliberately placed in the public domain or allowed to pass into the public domain. As a result articles on the internet, Google image search results and mp3s online will most likely be protected by copyright.

Myth 6: Most infringement can be excused under the principle of fair use.

Fair use is a principle of American copyright law that allows limited use of copyright material without the permission of the owner. Such use may include commentary, criticism, news reporting or research.

The sharper-eyed of my readers will have noticed that I described fair use as a principle of American law. It does not apply in the UK.

UK copyright law does have a principle of ‘fair dealing’ which sounds confusingly similar to fair use but is much less generous and only applies for non-commercial research, criticism or review purposes.

Just because you think your use of copyrighted material is fair does not mean you are not infringing the rights of the creator.

Myth 7: If I make three changes to the work I am not infringing.

Copyright is infringed where a ‘substantive part’ of a copyright protected work is reproduced without the permission of the copyright owner. What constitutes a substantive part will depend entirely on the size of the original work and the circumstances of the reproduction. As a result it is not possible to rely on a one size fits all rule as to how many changes you should make to avoid infringement.

I hope that’s helped. There are plenty more copyright myths so I expect to expand on this in the future as well as looking at some trade mark and patent myths as well.

Thanks to Brett (@BrettTechLawyer), Katherine (@whatKatydidnext) and Barbara (@filemot) for suggestions of some myths to bust!