Top 10 Myths About Copyright
by Daniel Steven

As a novelist and publishing lawyer, I am frequently surprised by the abundance of copyright myths. Let’s look at the top ten, as seen in my law practice:

Myth #1: “To obtain a copyright on my work, I have to register it.”

Actually, copyright is automatic when a work is created and fixed in a copy or recorded for the first time (the instant you lift pen from paper, or your word processing software saves to disk). Registration is not required to qualify for copyright protection.

Myth #2: “If it doesn’t have a copyright notice, it’s not copyrighted.”

Wrong. The use of a copyright notice is not required. Nevertheless, it’s better to use one. A copyright notice informs the public that your work is protected by copyright, identifies you, and shows the year of first publication. In the event your work is infringed and it has a notice, the infringing party may not claim "innocent infringement" and avoid paying damages. The use of the copyright notice does not require advance permission from, or registration with, the U.S. Copyright Office. The copyright notice on "visually perceptible copies" (i.e., print, web pages, computer text files) should contain all the following three elements: the symbol © (the letter C in a circle), or the word "Copyright," or the abbreviation "Copr."; and the year of first publication of the work; and your name, or an abbreviation by which your name can be recognized, or a generally known alternative designation of the owner. Example: © 2003 John Doe

Myth #3: “It is legal to copy a work as long as I give the author full credit.”

Nope. Under the provisions of the Copyright Act, the copyright owner, and only the copyright owner, has the right to reproduce the work unless it comes under certain limited exceptions, such as “fair use” (see Myth #6). Simply giving credit or attribution, without having permission, is the same as stealing Joe’s wallet and then saying, while using Joe’s money, “This came from Joe.” It’s still theft.

Myth #4: “If I don’t charge for the work, it’s not a copyright violation.”

False. See Myth #3. Some people believe that they are giving the copyright owner free advertising, and the owner should be grateful. But it is up to the owner, not you, whether he/she wishes their work displayed or published – and in what context.

Myth #5: “Anything on the Internet is in the public domain.”

Wrong. The Internet is just another medium of publication. All the rules of copyright apply as much as to print publication, unless the copyright owner specifically and explicitly places the work in the public domain. Certain works are, however, automatically in the public domain: items that cannot be copyrighted (ideas, titles, names, short phrases, and slogans); works whose copyright expired and/or was not renewed; federal government documents; and many state government documents and publications.

Myth #6: “Unless I copy the whole work, it is ‘fair use’ and thus not a violation of copyright.”

Nope. “Fair use” is the most abused concept in copyright law. Section 107 of the Copyright Act provides that "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Fair use generally is a short excerpt, usually attributed, used in connection with genuine criticism, parody, or teaching. In my experience, most of what people label as fair use – isn’t.

Myth #7: “I may use characters from other writers as long as my story is original.”

Negative. The making of “derivative works” belongs exclusively to the copyright owner. If you use characters, scenes, or settings from another author’s work, you need permission – unless you fall under the parody or criticism exception of fair use (see above). Therefore, you may make fun of Jessica Fletcher in a parody or satire, but you can’t use her in your novel without a license from David Bain. And yes, it is true that a lot of fan web sites and fiction violate copyright – but that’s because the owners tolerate such violations, for their own reasons.

Myth #8: “Anything mailed or e-mailed to me becomes my property.”

Well, yes, you do own the physical print copy of the letter or e-mail printout. But no, you do not own the copyright for the content, and you may not publish the letter without the consent of the person who wrote the letter, although you certainly may report on what it says, and perhaps even quote from a portion of it to make a point (fair use).

Myth #9: “Song lyrics aren’t protected by copyright.”

Song lyrics are as any other creative work, and are protected by copyright. Yes, this means that generally you must get permission from the copyright owner if you wish to use song lyrics in your novel. And no, it’s not fair use unless you are reviewing the song or making a parody.

Myth #10: “If the copyright holder didn’t register their copyright, I can’t be sued.”

Yes and no. Registration is a prerequisite to filing a copyright infringement suit, but registration may be made at any time within the life of the copyright (for works created after 1978, author’s life plus 70 years). If the registration is made within three months of first publication, the law confers certain additional benefits such as statutory damages and attorney's fees. Thus, the fact that the owner has not yet registered the copyright will not prevent you from being sued.

© 2003 Daniel Steven