Entertainment & Intellectual Property Law

Debunking 5 Common Copyright Law Myths

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  1. I have to register with the U.S. Copyright Office to get a copyright in my work.  Wrong.  As soon as your work is in a fixed, tangible form (such as putting those song lyrics on paper), you have common law rights in that work.  Now, that’s not to say you shouldn’t federally register your work with the U.S. Copyright Office.  Federal copyright registration provides many additional benefits, including the right to recover statutory damages in a copyright infringement action.  As registration fees are as little as $35, copyright registration is always a wise investment.
  2. I’m covered, I’ve got a “poor man’s copyright.” Not even close. For those who don’t know, a “poor man’s copyright” is where you mail yourself a copy of the work in order to establish a date of creation.  The reality is a poor man’s copyright is not a substitute for registration and will not constitute proof of registration in a copyright infringement action.  The only way to secure a federal copyright registration is to register your work with the U.S. Copyright Office. For more information on how to obtain a federal copyright registration see my post, Copyright Basics for Filmmakers.
  3. If there’s no copyright notice, it’s free for the taking.  Good luck with that.  Copyright applies regardless of the presence of a copyright notice.  Previously under U.S. copyright law, there was a requirement that works published prior to January 1, 1978 contain a notice provision, but that is no longer required.  The U.S. is now a signatory to the Berne convention which makes copyright notices optional.  That said, there is no harm in including a copyright notice on your work as it could act to deter infringement.
  4. I copied less than 10% of the work, I’m okay. There is no magical amount of copying that is acceptable.  It doesn’t matter than you that you only copied 30 seconds of a song or three lines from that short story.  Copying is copying.  Now, there may be circumstances where you can use the copyrighted work without securing permission from the copyright holder due to a fair use exception, but don’t rely on some arbitrary, magical number as a get out of jail free card.  It doesn’t exist.
  5. Who needs permission?  I gave the author credit.  Imitation may be the sincerest form of flattery, but unfortunately flattery is not a defense to copyright infringement.  Giving the owner of a work credit on your blog or ad campaign, is not a substitute for securing permission prior to use.   The old adage that it’s better to ask for forgiveness than permission isn’t going to get you very far in a copyright infringement action either.

For more information on copyright law or other intellectual property topics, contact Stacey Davis at sdavis@staceydavislaw.com or 205.777.9906.

Stacey Davis is an entertainment lawyer specializing in intellectual property law, and can assist clients with copyright registration and other copyright law issues.