Ten Common Copyright Permission Myths

TEN COMMON COPYRIGHT PERMISSION MYTHS

by Attorney Lloyd J. Jassin

"Without written permission, you expose yourself to legal risks."

Although the First Amendment may appear unconditional on its face, the right to speak and write freely has never been absolute. Intellectual property rights often prevail over an author's "creative license."

The main benefit of copyright, for example, is the right to exclude others from making copies of a work (or any part of it) without permission. By protecting an author's expression, copyright guarantees that authors and other creators, derive financial benefits from their work.

If you intend to use someone's copyrighted work, unless the use is considered a "fair use" (which is technically a defense to copyright infringement), you must obtain that person's written permission. Under federal law, only the copyright owner or someone acting with the owner's authority, such as a publisher, can grant that permission. Without written permission, you expose yourself to legal risks.

While not every unauthorized use of a copyrighted work is an infringement, whenever you include another person's words, illustrations, photographs, charts or graphs in a work you publish, you must be sensitive to the risk of infringing someone's copyright. What follows are some common copyright permission myths. Though it's human nature to try and avoid the entanglements of permissions, don't convince yourself that any one of these myths is true.

1. The work I want to use doesn't have a copyright notice so I don't need permission.

Not true. Since March 1, 1989 copyright notice has been optional. Before that date, copyright notice was mandatory and a work published with no copyright notice risked loss of copyright protection if not corrected within a specified period of time.

2. If I give credit I don't need permission.

Giving credit means you can look at yourself in the mirror and say you are not a plagiarist. However, merely giving credit is not a defense to copyright infringement which, unlike plagiarism, has legal, not ethical, consequences. Copyright infringement is the unauthorized use of someone else's copyrighted material. By contrast, you can plagiarize material not protected by copyright simply by taking credit for it.

3. Since I'm only using a small portion of the original work, I don't need permission.

While "fair use" can't be defined with mathematical precision, courts have consistently held that "you cannot escape liability by showing how much of [a] work you did not take." Based on the particular facts of a given case, courts will weight the following factors to determine whether a particular use is a fair use: (i) the purpose of the use, including whether the use is primarily for commercial or noncommercial purposes; (ii) the nature of the work; (iii) the amount and importance of the portions used in relation to the whole of the original work; and (iv) the effect of the use on the potential market, or value of the original. Accordingly, even if what you copy is quantitatively small, it may be qualitatively important, and therefore an infringing use.

"Copyright law grants copyright owners the exclusive right to control modifications of their works."

4. I don't need permission because I'm going to adapt the original work.

Copyright law grants copyright owners the exclusive right to control modifications of their works. If you add a new layer of copyrighted material to a previously existing work, you have created a derivative work. If done without permission of the copyright owner you may have violated the owner's copyright.

5. Since the work is in the public domain, I don't have to clear permissions.

Not necessarily. Public domain only refers to the lack of copyright protection. While copyright is very important, a work may be protected by other legal theories that survive after the copyright expires. For example, public domain artwork, particularly distinctive characters (e.g. Beatrix Potter's "Peter Rabbit" illustration), can achieve protection under trademark law and function as a logo or source identifier. Likewise, mere ideas, that are not protected under copyright law, may be protected under trade secret or contract law. Similarly, identifiable people may have the right to control the manner in which their name or likeness is used.

6. The material I want to reproduce was posted anonymously to an online discussion or news group. That means the work is in the public domain.

Not true. Neither the ease with which users can upload or download information on the Internet, nor the fact that it is anonymous, places a work in the public domain. In fact, the Copyright Act specifically protects anonymous and pseudonymous works from unauthorized copying. Postings and republications of protected material, if not done with the consent of the copyright owner, may constitute copyright infringement. Of course, due to the nature of such postings, there may be implied consent to copy material received from A, in any reply B makes to such communication.

7. I can always obtain permission later.

Later may be too late. Copyright owners have the unfettered right not to grant you permission. If what you need is crucial to your work, better to find out now that it is unavailable, than later. The lack of permission can result in your work being blocked or the payment of thousands of dollars in copyright damages and attorney's fees if you decide to use the material without permission.

"Out-of-print does not mean out-of-copyright."

8. The material I want to quote is from a an out-of-print book. That means the work is in the public domain.

Not necessarily. Out-of-print does not mean out-of-copyright. When a book goes out-of-print it is a temporary state. The rights generally revert to the author, which means the underlying copyright remains unaffected.

9. Since I'm planning to use my work for nonprofit educational purposes, I don't need permission.

Not necessarily. The key factor is not the user, but the nature of the material, how it is being used, and whether the new use adversely affects the value of the original work. Since even a nonprofit educational use can undermine the value of a copyrighted work, such organizations are not immune from copyright infringement suits.

10. I don't need permission because the work I want to use was published before 1923 and is over 75 years old.

Not necessarily. Unpublished and unregistered works created before 1978 (including very old works) may still be protected under United States copyright law. Copyright in these works–which includes unpublished letters and manuscripts–cannot expire until, at least, December 31, 2002. If they are published before December 31, 2002, as a bonus, they are guaranteed at least 45 years of additional protection (until December 31, 2047). Also bear in mind, that although a work may be in the public domain in the United States, it may still be protected overseas, where the rules concerning copyright duration differ. When in doubt err on the side of caution and obtain permission, or consult with an intellectual property attorney.

Lloyd J. Jassin is co-author of the bestselling Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.). To order the book via Amazon.com.

NOTICE: This article represents copyrighted material and may only be reproduced in whole for personal or classroom use. It may not be edited, altered, or otherwise modified, except with the express permission of the author. This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD J. JASSIN is a New York-based publishing and entertainment attorney in private practice. He is coauthor of the bestselling Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.), available at bookstores or at www.copylaw.com. Mr. Jassin has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators. He is counsel to the Publishers Marketing Association and Vice Chair of the Small Press Center. He may reached at Jassin@copylaw.com or at (212) 354-4442. His offices are located at 1560 Broadway, Suite 400, New York, NY 10036.