Copyright myths and legends

You can find almost anything you need on the internet: photographs, illustrations, articles, music. It is all too easy to download, print, and otherwise copy these materials for use in presentations, employee manuals, and in other business materials. And, thanks to a number of widely circulated copyright myths, many business owners believe these materials may be freely used in certain circumstances. In reality, however, activities such as these may constitute copyright infringement. Here are a few of the most common questions that are raised by clients seeking to use online materials in their business, along with guidelines to help you separate the truth from the rumors.

I can reproduce pictures, articles or other works that
aren’t accompanied by a copyright symbol, right?

Wrong. It is a myth that a work isn’t protected unless it bears the copyright symbol, and reproducing unmarked works could result in negative consequences for your business. A creative work is entitled to protection as soon as it becomes fixed in a tangible medium. The absence of the copyright symbol is not an indication that it is safe to reproduce a particular work.

Am I safe if I attribute the work to the author?

No. You can’t protect yourself from liability by attributing a work to its author. The owner of a copyrighted work has the exclusive right to reproduce a work, and the act of copying infringes that right, even if you attribute the work to the author.

What if I change a portion of the work?

A widely circulated myth, often referred to as the “10 percent” rule, suggests that individuals may avoid liability for infringement by changing some portion of a work (such as 10 percent of it). Contrary to this popular rumor, you can’t avoid infringing a work simply by making changes to it. In addition to having the exclusive right to reproduce his work, an author has the exclusive ability to make derivative works. Reproducing a modified work infringes this exclusive right.

But what if I don’t intend to profit from my use of the image or article?

You cannot avoid liability by using a work only for noncommercial purposes. The unauthorized use of a copyrighted work is infringement, whether you profit from it or not.

Aren’t I protected by the fair use doctrine if I use only a small portion of the work, use the work for educating my employees, or share the work with only a small number of people?

Not necessarily. “Fair use” is a complex concept that is commonly misunderstood, and rumors about what use constitutes “fair use” abound. In reality, determining whether a particular “use” is “fair” requires a complex, fact-specific assessment of how a number of factors apply to a particular situation. This exercise is best undertaken with the assistance of an intellectual property attorney, who can help you understand how the factors might apply in a given situation, and explain any risks associated with making use of a copyrighted work.

These are just a few of the common misconceptions held by many business owners and managers. Don’t fall prey to these rumors. The surest and safest way to avoid an infringement lawsuit is to talk to your lawyer and obtain a license before reproducing a copyrighted work.