Debunking Copyright Myths

AuthorJanet Fries - Jennifer T. Criss
PositionJanet Fries is of counsel at Drinker Biddle & Reath in Washington, D.C. She focuses her practice on copyright issues, particularly as they relate to authors, musicians, art organizations, artists, and collectors. She can be reached at janet.fries@dbr.com. Jennifer T. Criss is an associate at Drinker Biddle & Reath in Washington, D.C. She...
Pages37-66
©2019. Published in Landslide®, Vol. 11, No. 6, July/August 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
Debunking
Copyright
Myths
By Janet Fries and Jennifer T. Criss
©2019. Published in Landslide®, Vol. 11, No. 6, July/August 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
These days it seems that copyright law is everywhere,
from lawsuits alleging that the multiplayer online
battle game Fortnite infringed popular dance moves
such as the oss,1 to the Ninth Circuit agreeing that
Pharrell Williams and Robin Thicke’s song “Blurred
Lines” infringed Marvin Gaye’s copyrighted hit
song “Got to Give It Up.”2 As the Internet and tech-
nology have become omnipresent in our lives, the
constant availability of copyrighted content—from streamed
music to photos and posts on social media—has led to the per-
petuation of copyright myths. Unfortunately, these myths and
numerous others have caused misconceptions over the rights of
the copyright holder and the obligations of the user.
The U.S. Copyright Act is a strict liability statute. In
other words, following a “rule” that you believe to be true
but which turns out to be a myth will not excuse you from
liability for infringement. Under certain circumstances, it is
possible to plead “innocent infringement,” but even that only
serves to reduce the amount of damages you may owe and
does not excuse your infringement.
Here are four of the most common copyright
myths—debunked.
Myth #1: Public Access = Public Domain
The rst myth is that anything to which the public has access,
or that is publicly available, is in the public domain; i.e., if
it’s on the Internet, it can be used without a license or other
permission. This is far from the truth.
Contrary to popular belief, whether a book, work of art,
lyrics, sound recording, or other copyrightable work is in the
public domain does not depend on where the work can be
found. Instead, determining if a work is in the public domain
depends on when the term of copyright protection for that
work expired—or if it existed in the rst place.
Under current law, copyright protection for an original
work of authorship “xed in any tangible medium of expres-
sion” lasts for a long time: 95 years from the year of rst
publication for a work owned by an entity as a work made
for hire, or the life of the author plus 70 years for works cre-
ated by an individual author, regardless of publication status.3
The duration of copyright protection for works created prior
to 1978 is subject to different requirements that relate to (1)
whether the work was published with copyright notice, and
(2) whether the work was registered and, if applicable, if the
registration was renewed.4
Any works falling outside of those general parameters
are part of the public domain, free for anyone to use for any
purpose. One general rule to follow: currently, all works pub-
lished prior to 1924 (95 years ago) are in the public domain.
As of January 1, 2019, copyright-protected works published
in 1923 entered the public domain—the rst such inux of
“new” public domain materials in decades.5
So in theory, the plays of William Shakespeare and the
novels of Jane Austen—authors who are long deceased and
whose works were rst published well before 1924—are in
the public domain. But be aware: Romeo and Juliet published
with explanatory footnotes or Pride and Prejudice published
with a new introduction may be protected by copyright law
with respect to those footnotes and that introduction. Simi-
larly, the Ninth Symphony of Ludwig van Beethoven (who
died in 1827) is in the public domain, but a recent sound
recording of an orchestra and choir performing the Ode to Joy
would be protected by copyright law.
Other works that fall into the public domain are works
owned by the U.S. government, which are not protected by
the Copyright Act and are free for the public to use.6 Works
owned by state governments also are part of the public
domain. The Eleventh Circuit recently held that an annotation
to Georgia’s ofcial code is similarly public domain material,
even when prepared by a nongovernment entity.7
So, while many works of authorship created over the centu-
ries are most certainly in the public domain, it is very likely that
most creative works found on the Internet or in other electronic
media—such as digital photographs, blog posts, and e-books—
are protected in whole or in part by copyright law. Using such
works without permission or a license constitutes copyright
infringement for which the unauthorized user can be liable for
damages up to $150,000 per registered work infringed.8
Myth #2: The Poor Man’s Copyright
The second myth is a “theory” that has endured for a very
long time and remains surprisingly popular with freelance
writers. Instead of registering the copyrights in a work with
the U.S. Copyright Ofce, the myth is that the protection of a
“poor man’s copyright” exists when an author mails himself
or herself a copy of a work and then preserves the unopened
envelope when he or she receives it in the mail. A variation of
the theory is having the work notarized.
Mailing yourself a copy of your work or having it nota-
rized has no legal effect. While it may serve as evidence that
the work is in your possession as of the date it was mailed
or notarized, it in no way proves that you are the author who
created that work or holds the rights in it. The only way to
register a copyright and to have documentation of your own-
ership in a copyrightable work is to le an application with
the Copyright Ofce, which leads us to the next myth.
Myth #3: Registration Isn’t Necessary
Unlike the rst two debunked myths, there is some element
of truth to the third myth, that registration with the Copyright
Ofce is not necessary for a work to be eligible for copyright
protection. But not registering the copyright in a work would
be shortsighted and not recommended for anyone wanting to
be able to enforce his or her copyrights.
Under current law, registration with the Copyright Ofce is
not required for works created after January 1, 1978.9 Provided
a work is sufciently creative and falls into certain enumerated
Janet Fries is of counsel at Drinker Biddle & Reath in Washington,
D.C. She focuses her practice on copyright issues, particularly as
they relate to authors, musicians, art organizations, ar tists, and
collectors. She can be reached at janet.fries@dbr.com. Jennifer
T. Criss is an associate at Drinker Biddle & Reath in Washington,
D.C. She focuses her practice on copyright law, technology and
outsource licensing, and intellectual property aspects of mergers
and acquisitions. She can be reached at jennifer.criss@dbr.com.

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