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Apr 2006
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April 01, 2006

Six Copyright Myths

In today's world, making copies, even in electronic or digital form, has never been easier. And while most people are aware that there are copyright laws, they may mistakenly believe that such laws either do not apply to electronic media, or that their copying is somehow a "fair use."

While there is a fair use exception under the Copyright Act, many people do not understand its scope and limitations. In fact, many of the myths discussed below result from this misunderstanding about the fair use exception. The fair use exception allows limited copying for certain purposes, such as criticism, comment, news reporting, teaching, scholarship or research. The purpose of the fair use exception is to balance the exclusive rights of copyright against our First Amendment free speech rights so that we can engage in a dialogue about ideas and issues as they are expressed in other people's works. Here are some common misconceptions that people have about copyrights and the fair use exception, and why they are wrong:

Copyright Myth #1: "It doesn't matter if I copy something, as long as I don't make any money from it."

Certainly, if Mary copies a CD of Jane's music and sells it, Jane is entitled to recover Mary's profits. The copyright law, however, does not stop there. Even if Mary copies Jane's CD and simply gives it to a friend, it is still a copyright infringement, and Jane could recover from Mary the profits that Jane would have earned had Mary's friend gone out and bought her own copy of Jane's CD. Alternatively, instead of seeking actual damages, Jane could seek statutory damages, which at the court's discretion could be anywhere from $750 - $150,000, depending on the circumstances and whether Mary's infringement was willful or not.

Copyright Myth #2: "It's okay to copy something if it's posted on the Internet."

If John, a photographer, posts his photographs on the Internet, then Mary is certainly entitled to go to John's Web site and download the photographs so that she can view them. Since the photographs can be viewed only by downloading them from the Internet, John has impliedly given his permission for this. If Mary, however, proceeds to post these photographs on her own Web site, or to print the photographs and distribute them, she is infringing upon John's copyrights.

Copyright Myth #3: "It's okay to copy something, as long as it's just a part of the work and not the whole thing."

Mary is very fond of one of Jane's songs, and decides to quote a famous line from the song on her Web site. Because she limits herself to using only one of the 50 lines of lyrics, Mary believes that her use is a fair use. A court, however, might conclude that she is infringing. While it's true that de minimis copying (copying a small amount) is not copyright infringement, there are no rules as to what constitutes a de minimis amount. The court will certainly consider the amount that was copied and its proportion to the entire work. The court, however, will also look at other factors, such as the purpose and character of the use (including whether the use is for commercial purposes or for nonprofit educational purposes, etc.), the nature of the copyrighted work, and the effect of the use upon the potential market for or value of the copyrighted work.

Copyright Myth #4: "It's okay to copy something if it's being used for educational purposes."

Stacy, a school teacher, has a new computer at home that came with a spreadsheet program. Stacy decides that this program would be helpful at school, so Stacy brings the program disk to school and loads it on her classroom computer. Stacy uses the program to help her teach math to her students. Although Stacy believes that this is a fair use of the software, a court of law might not even get to the fair use analysis because the use of the software will be controlled by the software's license agreement. Even if Stacy deletes the software from her computer at home before bringing it into school, the software license most likely only allows Stacy to use the software on her new computer. At the very least, Stacy has violated the terms of her license agreement.

Copyright Myth #5: "If it doesn't have a copyright notice, I can copy it."

Mary's church is handing out a leaflet about a fund-raising campaign. The leaflet contains a poem written by Faith, one of the congregation's members. Seeing that there is no copyright notice for the poem, Mary decides to create a poster featuring the poem, and sells it on her Web site. It turns out that Faith has registered a copyright on the poem, and Mary's poster infringes on the copyright. At one time, failure to put a copyright notice on a work took it out of the protection of copyright and into the public domain. The law, however, has changed, and a copyright notice is no longer a requirement. While Mary may be able to argue that she is an innocent infringer and thus not liable for Faith's damages, a court could still order Mary to pay Faith any profits that Mary made on the poster and prevent Mary from selling any more of the infringing posters.

Copyright Myth #6: "It's all right for me to copy something from another work, as long as I give fair credit to the other author."

Mike, a college student, is studying modern literature. Mike takes some of his favorite passages from various works and puts them on his Web site. Because he doesn't want anyone to think that he is trying to pass these off as his own, he is careful to give full attribution to the original authors. Unfortunately for Mike, attribution--while important for academic and intellectual integrity--is not a defense to an infringement claim. A court of law would likely find that Mike is infringing upon the works of these various writers.

If you have any questions, feel free to contact your WN&J attorney or Norbert Kugele at 616.752.2186 or nkugele@wnj.com.

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