Copywrong: Common Myths and Realities of Copyright

There are a number of commonly held myths about copyright and its limitations. If you or your clients believe any of the following myths, you may be including unauthorized work within your Web site or other creative projects without intending to, so it’s important to educate yourself and your colleagues about these misconceptions:

  • Myth 1: Changing a certain percentage of a work, editing it or moving it to another medium removes its copyright protection.

NO: a copyright holder holds the same rights in “derivative works” as he or she does in the original work. No amount of change removes copyright protection. The only thing that changing something beyond recognition does is reduce (but not eliminate) the chance that you may caught doing it.

  • Myth 2: Publicly accessible means freely usable.

NO: you must check the source of copyrighted materials before using them, even if they are easily obtained or without apparent protection. For example, even “freeware” software, which may be used and copied without payment, is subject to copyright, and the accompanying license may restrict use. Free availability is quite different from public domain, where no copyright applies.

Today, with content from almost every medium from television to music to print available for easy download and searchable at your desktop, and with commonly available software tools for converting even streaming media to stored versions, the temptation to just copy something is strong. Consider, though, that the same search engines that led you to the content may index your copy for the original owner to find.

  • Myth 3: Having a license to use materials for traditional media grants an automatic Web site usage license.

NO: each medium may require separate clearance and/or payment. That means that you may not have the right to put your award-winning TV commercial or print ad campaign on your site, or even to reproduce your Web-based content on CD or DVD. Keep international rights in mind as well, given that the Web reaches throughout the world, and you may face legal liability throughout the world for what you do on your U.S.-based Web site. Also, remember talent rights, which may be separate from copyright but still necessary if recognizable people are shown in your works.

  • Myth 4: The “Fair Use” exception to copyright allows unlimited use of materials if there is no admission or viewing fee for the use of the site.

NO: The fair use exception, whose categories are set by the courts rather than by federal law, is very limited, generally applying only to excerpts and then only for newsworthy, educational, not-for-profit, satirical, or similar uses. You can never be certain ahead of time whether a use would be considered fair use: the more of a work you use, the closer to commercial the use, or the greater the distribution, the less likely that you will be allowed a fair use defense to an infringement action. (For a good explanation of what “fair use” is, check out this circular from the U.S. Copyright Office.)

If you are not careful about monitoring the source and rights for the materials included within your own work, you may get sued for infringement. Because the scope of the prohibited activity is relevant to the award of damages, an infringement on the Internet, with its worldwide reach to millions, can be particularly expensive for the infringing party.

Adapted from Clicking Through: A Survival Guide for Bringing Your Company Online (© Bloomberg Press 2000) by Jonathan I. Ezor, Of Counsel.

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