Archive for the ‘Licensing & Permissions’ Category
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.
Lawyers and lay persons alike often conflate copyright with “intellectual property.” Later, I will attempt to define copyright — a proposition that is a bit more complicated than one may think — but in doing so, it is important to explain what copyright is not. To this end, it is important to explain why copyright is not the same as intellectual property.
It remains a bit surprising that “copyright” and “intellectual property” often are used interchangeably, even by lawyers who practice in one or more areas of intellectual property. In his book Copyright’s Highway, Paul Goldstein tells a story involving the legendary copyright lawyer and professor Alan Latman that captures the frequency with which these two terms are confused.
According to Goldstein, Latman once told a group of intellectual property specialists that most people -– even at times judges –- often do not know the difference between copyrights, patents and trademarks. “When I tell a general practitioner that I am a copyright lawyer, he immediately corrects me: ‘You mean patents!’ He then says, ‘Well, anyway, as a patent lawyer you can copyright a name for me, can’t you?’” The subtle joke is that you cannot receive copyright protection for a name or title (but you can receive trademark protection for a name).
In summary, “intellectual property” is a name that describes a class of several different legal regimes that generally concerns creations of the human mind. Copyright is but one of the legal regimes that fall under the umbrella of intellectual property.