Myths and Folklore
Laws are written by lawyers, often in what is typically described as “legalese.” This “language” as it were, is a bit different from, and much harder to deal with, than what most non-lawyers are familiar
with. The small details and precise definitions lawyers
seek out are annoying for most of us and even contrary to the basic human approach to learning, which
is founded on turning specific experiences into generalizations. Can you imagine what life would be like if,
for example, every time you came to a door knob, you
had to examine it to decide how to make it work?
When most non-lawyers have to apply those lawyer-written
laws to themselves, a lot usually gets lost in the translation. In the
process, people often fill in the gaps themselves, creating a body
of misinformation that often results in pervasive myths and folk-
lore. And like any “lie” that gets repeated often enough, it tends to
become what the public perceives as “The Truth.”
One area of the law that is often misunderstood is copyright.
Here, I set some copyright basics straight while debunking some
of the myths. Below are a few of those myths that I tend to en-
counter most frequently.
Victor S. Perlman, Esq.
the public domain. The legal reality is that the only
way you can be absolutely certain that a work that
appears to be copyrightable is in the public domain
is if it was published before 1923. If that is not your
situation, you are stuck with having to play detective
and track the history of the work, including factors
such as when and by whom it was created, whether
and when it was registered at the Copyright Office,
whether and when it was published, and for works
published before 1989, whether all published copies had a copyright notice attached to it.
“All educational uses are ‘fair uses’ and therefore do not
require permission or licensing fees.” Well, that is obviously
wrong, or else publishers wouldn’t be able to charge any money
for textbooks. Fair use is a defense to a charge of copyright infringement. It allows for the use of parts of copyrighted works,
and sometimes even entire works, for the benefit of the public
under certain circumstances. Fair use, which appears in § 107 of
the Copyright Act of 1976, is one of the most complex, murky and
unpredictable parts of the Copyright Act. That, by itself, makes it
a prime candidate for the kind of inaccurate generalizations and
misunderstanding that leads to the creation of myths. Determining
whether a particular use is a fair use requires a fact-based analysis using four specific criteria set forth in § 107. For that reason,
anytime you hear that “all (fill in the blank) uses are fair uses,” you
know that what you are hearing is untrue and simply a myth.
“Because the Copyright Act of 1976 says that works created
starting in 1978 are protected by copyright, you don’t have
to register a work to have it fully protected.” Unlike Myths
No. 1 and 2, this isn’t completely untrue, it’s just inaccurate. Yes,
copyrightable works created on or after January 1, 1978 are automatically subject to copyright protection immediately upon
creation. However, there are two additional protections that
apply to copyrightable works when they have been registered.
In a case of infringement, the copyright owner is entitled to ask
the court to make an infringer pay 1) statutory damages instead
of actual damages and 2) the copyright owner’s attorney’s fees
for having to sue the infringer, where the infringement has
taken place after registration (or within three months of first
publication). As a practical matter, most copyright owners
simply cannot afford to pay for an infringement suit or find
a lawyer who is willing to take the case, unless the work was
registered and registered timely. Otherwise, there is copyright
protection, but it is unenforceable as a practical matter.
“Once something has been published, it becomes part
of the public domain.” Copyrightable works that are in the
public domain are works that are not protected by copyright
and that may be freely used by the public. In copyright terms,
publishing something means making it available to the public.
In this myth, the word “public” has led to the false idea that
making something available to the public equals placing it in
The “poor man’s copyright”: “All I have to do is mail a copy
of the work to myself with proof of the date of mailing, and I
don’t have to register it at the Copyright Office.” Actually, mailing a copy to yourself is virtually pointless. It does nothing toward
obtaining the protections described in the preceding paragraph. Its
only possible value is proving that the work existed on or before a
given date, which is rarely an issue and completely unnecessary if
the work has been registered.
There are lots of other myths, but because my space is limited, I
will revisit them in a future column. In the meantime, if you have
questions about copyright, ask a copyright lawyer. Don’t ask non-lawyers or rely on what “everybody knows.”
Victor Perlman is general counsel to the American Society of Media Photographers, Inc. (ASMP). He is co-author (with Richard Weisgrau) of the
book Licensing Photography, published by Allworth Press.