Core Copyright

Before I delve into the substantive law and theory of U.S. copyright, I will address some common myths and misconceptions I have heard routinely about this topic. As I have outlined previously, copyright now is commonly applicable to people’s everyday actions. This wide applicability, however, has not necessarily resulted in the average Joe and Jane having a higher copyright IQ.

One need look no further than Twitter to see how many of these misconceptions get originated and repeated. I have seen tweets that claimed to copyright a hairdo. I have seen tweets that assumed the year’s passage would allow them to freely copy on Jan. 1 work that was protected by copyright on Dec. 31. (Both statements are incorrect.)

But folks on Twitter are not the only ones who commonly commit basic copyright errors. News journalists — who really should know better — frequently get basic copyright concepts incorrect. Too often reporters conflate copyright and other forms of intellectual property. Even intellectual property lawyers routinely provide incorrect information about U.S. copyright. For example, I have seen posts from intellectual property lawyers that claim “If you find a picture on Flickr, another blog, or somewhere else online and upload it to your own blog (or worse yet, inline link to it from your blog) without permission, you’re committing a copyright violation.” On its face, that is simply an incorrect statement, mainly because it fails to allow for a raft of limitations in the Copyright Act of 1976.

Thus, with this post, I address (and hopefully resolve) some of the common copyright myths I have seen, heard, or encountered in my years of dealing with this topic. Consider this to be the first in a recurring series: I will provide updates occasionally as I come across newer and more interesting or perplexing myths and misconceptions.

The Poor Man’s Copyright (PMC)

I have a soft spot in my heart for the Poor Man’s Copyright (hereinafter known as “the PMC”) because it is how and why I began my interest and involvement with copyright during my youth. The PMC myth essentially says that a creator can get copyright protection for his or her work by placing the work in a sealed envelope, mailing it to himself (preferably, by certified mail with a return receipt), and, upon receiving the mailed document, keeping the parcel sealed until a time when he needs to “prove” that the idea in the document was, in fact, his idea. (An alleged secondary benefit to the PMC is that it allows the creator to avoid paying a registration fee to the U.S. Copyright Office.)

Sadly, there is little true or relevant about the PMC. The time I first encountered the PMC in the mid-seventies, copyright law was under a different statutory regime — one that required the creator to comply with all sorts of formalities as a prerequisite to receiving a copyright. Under the current regime, however, the law grants a copyright to the creator automatically once that creator (who often is called an “author”) produces an original work that is recorded and perceptible.

The PMC is wrong because the process of placing the creative work in an envelope and mailing it to oneself has no influence on whether a work is eligible for a copyright, or is under the protection of copyright. Further, the PMC is wrong because it conflates mailing work to oneself with copyright registration.

Most importantly, the PMC is wrong because it subtly asserts that a creative idea can receive copyright protection. Copyright law does not protect ideas (although patent law may protect a novel idea). Instead, copyright protects the perceptible capture of original ideas.

I will address what “original” and capture (or more properly, “fixation”) means in a future post.

Lack of Copyright Notice

This myth essentially says that lack of a copyright notice means the underlying work does not have any copyright protection. To be fair, this misconception once was true, albeit under a prior copyright law. Specifically, Section 9 of the Copyright Act of 1909 {.pdf] provided copyright’s protection if the creator (a) produced an original work; (b) published that work; and (c) placed a copyright notice on that work. (The author needed to comply with all three conditions.)

But under the Copyright Act of 1976, the current U.S. copyright law, lack of copyright notice has no influence on a work’s copyright status. Under current law, specifically Section 102(a), an author receives copyright protection immediately once he creates an original work that is recorded and visible (or otherwise perceptible) to others. Unlike the 1909 Act, current U.S. law does not require the creator to publish the work, or register the work, or place a copyright notice on the work as a condition of receiving a copyright and its related protections and burdens.

So, then, why place a copyright notice on a work at all? The simplest answer is that doing so is good housekeeping: it alerts others that the work you have put together is protected by copyright.

A related question I often receive about notice is “What kind of copyright notice is sufficient?” My answer is to look at the bottom of any Core Copyright post for a decent example. Usually, a good copyright notice includes the year in which the work is recorded, the “C in a circle” (or ©) symbol (or the word “Copyright” if you cannot find the © symbol), and the person or entity that owns the work. (Vinyl records, compact discs and other forms of music typically add another symbol: a “P in a circle.” I’ll address why in a future post.)

One last thing: on the Mac operating system, the keyboard shortcut for the copyright symbol — © — is option+G. On the Windows operating system, I believe that shortcut is Alt+0169. I do not believe there is a keyboard shortcut for the P in a circle that appears on sound recordings.

Confusing Registration With Protection

This myth essentially presumes a person must do something before receiving copyright protection. Often, I hear people say something like “I need to copyright my work before I do X” or “I need to copyright my work.” What such people really are thinking is that they need to register their work as a condition of receiving copyright protection.

Such thoughts are misconceptions because with any original work that is recorded, copyright protection is automatic under current U.S. law. As I outlined above, registration was one prerequisite to receiving copyright’s protection in the past, but that condition does not exist under current federal copyright law.

A related myth presumes that “failing to register” a work means that the work is not protected by copyright. Again, this is not the case under current federal copyright law.

Confusing Plagiarism & Copyright

I already have addressed the distinction between copyright and plagiarism.

Confusing Intellectual Property & Copyright

I already have addressed the distinction between copyright and intellectual property.

Online Works Are Free to Use

Even now, this is a widely held myth, and probably unbeknownst to many, is virtually the same as saying that material online is in the public domain. This myth essentially presumes that works that are posted online — whether text, audio, video, or graphics — are free to “use” simply because they are online. (I will address the issue of “using” copyrighted works next.)

Interestingly, I think this myth has its roots in copyright’s history. Copyright began as a legal scheme designed to protect against the illegal copying of printed works. For most of its history, copyright has been dominated by the print medium: protection of printed works; the relative difficulty of copying and distributing printed works; and a core, presumptive level of respect for the comparative difficulty of creating printed works. As a result, I don’t think it’s out of line that the average person — who typically has had no contact or experience with copyright until recently — would tend not to automatically consider copyright (or “respect” copyright, as some lobbyists have put it) in relation to works outside the print domain. I’m not saying this view is correct or incorrect; I simply posit that this view is plausible given other factors. (Really, this is an empirical question that deserves more research.)

No matter what reasons one has for having this view, however, it is false. This view is incorrect because by virtue of how computers and the Internet operate, and also by virtue of an interesting legal concept that has stuck with us, all work that is online is “fixed” (i.e. recorded and perceptible) and the majority of that work qualifies as being original. (What qualifies as “original” is a hefty theoretical concept that I will reserve for a separate post.) As a result, the vast majority of work online is protected by copyright.

Therefore, you should presume that virtually everything you see on the Web, in e-mail, on bulletin boards and on wikis is protected by copyright — even if there is no copyright notice on the work. (If you want to probe some interesting thoughts about how Wikipedia handles copyright issues, a recent Jacqui Lipton post does not have answers, but poses some interesting questions.) Almost all general rules have exceptions; one exception to the aforementioned general rule about the copyright status of online works is that works of the federal government are, indeed, in the public domain and free to “use.”

I will address copyright limitations (i.e. exceptions) — including limits on the rule that places federal government works in the public domain — in future writings.

Can I Use a Work?

This is a common question, and on its face, a necessary question. In truth, there is nothing particularly mythical about this question. But I didn’t raise this as an issue because of the question itself. Instead, I put this question here to address the issue of “use.”

Many people who are new to copyright often get hung up on the issue of permissible “use.” The practical problem with speaking about “use” is that U.S. copyright law does not talk about “uses.” The Copyright Act of 1976 talks about exclusive rights, limitations and compulsory licenses. It talks about infringements and defenses. In some recent, major amendments, it talks about term and, for the first time, control of machines or networks through which protected digital works may pass.

But copyright law does not talk about copyright “uses” or “using a copyrighted work.” Instead, what copyright law does talk about is a copyright owner’s exclusive rights. The law also talks about rights of attribution and integrity, which are akin to what are called “moral rights” in Europe. Said another way, “using” a work really means that someone besides the copyright owner (or that owner’s agent) is invoking or implicating one or more of that owner’s exclusive rights.

So whenever someone asks me about “using” a work protected by copyright, the first thing I ask them is how they are intending to use the work, and then try to help them connect desired use to one or more of the exclusive rights that is articulated in the 1976 Act.

I recognize that on the surface, this seems like a big deal about nothing. In fact, though, identifying the appropriate right that connects with a desired “use” is related to very specific and important doctrinal issues, such as the correlation between certain types of works and the rights that apply to them, and the types of limitations or compulsory licenses that may allow a non-owner to copy, adapt, distribute, publicly perform, or publicly display a work (or portions of that work) without having to receive the owner’s permission, or without having to pay a license fee.

© Copyright 2010, Core Copyright. On Twitter @corecopyright