WHEREFORE THOU ART # 54
Some Myths and Mythsters of Copyright

There are a bunch of commonly held misperceptions about copyright law, and these myths persist and fester. It's similar to how people continue to believe, despite overwhelming evidence to the contrary, that there are crocodiles in the New York City sewers or such a thing as compassionate conservatism. If you're a creator, your embrace of these copyright myths is at your own peril-very bad things could happen to you and your works if you buy into some of this nonsense. I've run lists like this here before, and I'm obliged to keep doing it, because these myths just refuse to die.

POOR MAN'S COPYRIGHT

You, know, mailing yourself your works. It accomplishes one thing: you'll get mail! I regularly appear on the VoxPop show on WAMC, answering listener questions about copyright, and we get a call about this almost every time. Sometimes more than one in an hour! I've also seen so-called copyright experts on the internet espousing the glories of poor man's copyright. I've had clients mail me stuff, and call me up telling me not to open the package, just to hold onto it for safekeeping.

It's silly. The idea, I guess, is that if you put your work in an envelope and mail it to yourself, the date-stamp on the postmark will somehow prove that you created the work at least as early as that date.

It doesn't. There has never been a court case where the lawyer whips out the magic envelope, causing an evil infringer to break down on the witness stand. For one thing, it's pretty easy to fake. You could, for instance, mail yourself an empty envelope and then stick your work inside on a later date. Tricky, huh? For another thing, even if it's for real, you can only open the envelope once. Unless of course, you steam it open and then re-glue it.

Save your stamps. If you want to really protect your work, register it with the Copyright Office in Washington D.C.. Which reminds me of another myth:

THE RACE TO THE COPYRIGHT OFFICE

Like if you fail to register your work you'll lose your copyright. Or if somebody else registers your work before you (like, say, the jerk you just threw out of your band) you'll lose your copyright.

Nope. Your copyright arises upon the creation of your work, and nobody can take it away from you without your say-so. Registration involves you telling the Copyright Office about your copyright, paying a fee, currently $45.00, and soon to be $30.00 for online registrations. Your registration is rewarded with some enhanced legal protections and a certificate, but the important thing to realize is that you already own the copyright simple by virtue of creating something. And if some crumbum registers your work before you do it's a fairly straightforward process to invalidate a fraudulent copyright registration in a court of law.

THE FIVE NOTE RULE

Variants include the three second rule, the 80% rule, and the "but it's a different size" rule. We're talking about how close a subsequent work to be original and not be infringing.

There are no rules like this. None. Infringement is a matter of access to the original work, and creating a work that a reasonable observer that is "substantially similar" to the original. Now, I'll grant you that the words "reasonable" and "substantially" are about as subjective as words can get, and that makes matters of infringement extremely tricky, with a gray area wide enough to drive a truck through. On the margins, a finding of infringement becomes really a matter of gut feeling, skilled advocacy, and equity (like if the infringer's a bad guy).

Now there have been cases that have said that taking three notes from a particular composition isn't infringement. And cases that say that an extremely similar subsequent photograph isn't infringement of an earlier photograph. But these decisions are all based on the precise facts involved-and they certainly don't create universal rules.

Law books are filled with judicial decisions involving infringement, and many of these decisions conflict with one another, and lots of them were decided, in my humble opinion, incorrectly. And there's a growing number of interesting decisions that are allowing for appropriation in visual art, the lawful taking of pre-existing images for use in new works.

Frustrating? Absolutely. Inevitable? You bet. Every situation that potentially involves infringement is different. Having bright-line rules like the five-note rule would have hideous unintended consequences by punishing acts that ought to be perfectly fine on one hand and punishing outright theft on the other.

So, we just don't have rules like that.

WHERE CREDIT'S DUE

If you reprint or post something that's a copyrighted work, and give the creator credit, it's still infringement. Exposure is nice, but then again, people die of exposure. It's really a matter of the copyright owner's desires. For example, somebody's stuck my old rock band's videos up on YouTube, and I've even seen one of them posted on somebody's blog. If we wanted to get all snooty about it, we could get these things taken down, because as the copyright owners, we have the right to control the use of our works. But we figure, what the heck, this saves us from posting the darn things ourselves, and we're thrilled people still want to watch our almost 30 year-old videos. I even contacted the blogger and made a new friend.

It's not just a legal thing, it's common sense and courtesy. If you want to be sure you're not going to step on the copyright owner's toes, ask permission before re-publishing somebody else work.

NO-NO NOTICE

If there's no copyright notice, no little "c in a circle" on or near a work, then the work's in the public domain, right? Nix nix! Copyright notices are not mandatory to secure copyright protection, so the lack of one on a work doesn't necessarily mean that there's no interested copyright owner of the work. I tell clients who are publishing works or putting stuff up on the internet to put a copyright notice somewhere around the work if they want to limit the dissemination of their works. The notice serves as a gentle reminder to the world that the creator is exercising his or her rights under copyright law. And someone who takes the work despite the presence of a notice is going to be hard-pressed to say "Uh, I didn't know this was copyrighted."

But it's not a requirement; it's just a good idea.

© 2007 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.