Having recently started a family arts and crafts business (and being an art photographer in a parallel life), intellectual property issues are one of the day to day legal matters that always seem to be a cause of confusion in the artistic world. No wonder, just a read through the U.S. Copyright Act is a daunting challenge even for a lawyer. Unfortuantely, the complexity of intellectual property law leads to the creation of many myths, shortcuts and legends, some of which can lead to trouble.
(As always, this post is not intended as legal advice, please see the disclaimer under “Important Information”.)
I’ve decided to list a few of the myths and facts that I have come across. These are some of the notes I have accumulated from a few of the less obvious areas of copyright and intellectual property.
1. You have to write “All Rights Reserved” on a printed/written/internet work to enforce copyright. Myth, used to be fact.
Under the Berne Convention, any country which is a signatory to the convention grants copyright protection to a work created without formal notice of copyright. The Buenos Aires Convention of 1910 required formal notice, however the formal notice requirement became obsolete upon adoption of the Berne Convention. An author may relinquish their rights in a work with a phrase like “Free to Copy” or “Public Domain”.
Of course, publishers are always slow to change habits (including this website), so while “All Rights Reserved” may be an anachronism, it fits like a favorite old sweater and will probably enjoy widespread use for some time to come.
2. Someone posted on a blog whether they could use commercial beads in a necklace given that the beads had a signature on the back. The site contributor replied, “If 20% or more of the design is your creation, there should not be an issue”. Myth.
There is no such thing as the 20% rule. Nor is there a 10% rule, a 30 second rule or a three paragraph rule.
When courts in the U.S. try to determine whether an infringement has occurred, they refer to a legal concept called “substantial similarity”. An entire area of law is dedicated to determining substantial similarity under copyright law, so it is a complex subject area. Add other often encountered concepts like the first sale doctrine and fair use and one can easily see that the world of copyright and the arts is not something that can be boiled down to a simple rule. In addition, don’t forget that there may be trademark and patent issues to boot.
If you have a question about copyright, trademark use or possible infringement, it is always best to consult an Attorney (or at least do some research beyond just accepting a simple un-sourced rule as fact). You may find that what you are doing is fine, but if what you are doing isn’t okay, it is best to know before the lawsuits fly.
3. I can protect my work by putting it in an envelope and mailing it to myself via registered mail. Myth.
This is the so-called “poor man’s copyright”. It is a half-measure try at copyright registration that holds absolutely no legal weight whatsoever. From the U.S. Copyright Office, “There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.”
All original, copyrightable works gain copyright when fixed in a tangible medium of expression. Registering a copyright is a prerequisite to accessing the courts, statutory damages, and so on, but it is not required to gain copyright. Basically, if a work is valuable or needs to be protected, by all means, register. However, lack of registration does not mean lack of copyright. Just keep in mind that when a dispute arises over ownership or creation, sealed letters, testimony from Aunt Bessie and the like are not a substitute for the real thing.
4. People are copying my tutorial videos (tutes) on YouTube, Vimeo, etc, … so I should just use that FBI warning seal at the beginning to stop them. Myth.
If you are making You Tube tutes as part of the Motion Picture Association of America (MPAA) or other organization licensed to use the FBI Anti-Piracy warning, congratulations. If not, here is the anti-piracy warning on the anti-piracy warning, “Unauthorized use of the FBI seal, name, and initials are subject to prosecution under Federal Criminal law, including Sections 701, 709, and 712 of Title 18 of the United States Code”.
To its credit, the FBI does have language at the above link you can use to “deter” piracy. It’s probably just as good as the logo you can’t use right now. Also, the FBI is working to open up use of the seal by “permitting the broadest possible public use of the seal by all individuals and businesses with a copyright interest”.