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June 1, 2005
Copyright: Fair Use and the Most Common Misconceptions of Copyright Law
By:
Grant Coffield
The copyright doctrine of "fair use" is a continual source of confusion for
businesses and individuals who want to use copyrighted works created by others.
Copying tends to be considered fair use for purposes such as criticism,
comment, news reporting, teaching, scholarship or research. But in determining
whether copying is fair use courts also look at factors such as the purpose and
character of the use, the nature of the copyrighted work, the amount and
importance of the portion used in relation to the whole work and the effect of
the use on the potential market or value of the copyrighted work.
People copying a protected work often operate under the misconception that
they had the right to do so. They tend to use one of the following
justifications, none of which is valid:
- There was no copyright mark
Since March 1, 1989,
inclusion of copyright notice such as the frequently seen (c) mark, the word
"Copyright" or the abbreviation "Copr.," followed by the year of first
publication and the name of the copyright owner, for example, (c) 2003 John Doe,
has been optional. In general, a work is protected by copyright from the moment
it is created in fixed form like a book, picture, videotape, recording, or other
medium regardless whether it displays a copyright notice.
- It was only a paragraph
There is no numerical equation
for what amount of copying constitutes copyright infringement. Copying even a
small portion of a work (e.g., a single paragraph from a novel) can constitute
copyright infringement, particularly if the copied portion is a qualitatively
substantial or essential portion of the original work.
- It was on the Internet
While material that is truly in
the public domain (i.e., a work for which the copyright has expired, or
something that is unprotectable such as, for example, ideas or facts) may be
copied, nearly all material found on the Internet was created by someone and is,
therefore, an original work protected by copyright.
- I didn't make any money on it
Whether or not one is
making money does not matter. Copyright law gives the owner the right to
decide who may use the work.
- I credited the source
Giving credit to the source of a
copied work does not mean that the copier is not an infringer: It just means
that he or she is not a plagiarist. Acknowledging the source of the copyrighted
material does not substitute for obtaining permission to use it.
- I changed it
An individual who copies and modifies
protected material most likely infringes the copyright owner's
exclusive right to create modified versions of the original work. These modified
versions are known as derivative works.
Understanding these copyright law basics is important because few people
appreciate the potential consequences for committing copyright infringement in
the United States. Under the Copyright Act, a copyright infringer is liable for
the copyright owner's actual damages and any additional profits of the infringer
that are attributable to the infringement. In addition, statutory damages up to
$150,000 and remedies like injunctions, impounding or destruction of infringing
items, as well as other remedies, may be available. In cases of willful
infringement for purposes of commercial advantage an infringer could even face
criminal penalties including fines or imprisonment, or both.
Copyright protection is one of the most underestimated and misunderstood
forms of intellectual property protection. Even knowledgeable attorneys and
courts have struggled with the issue of fair use.
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