In this 2-part legal guide, I'll be myth-busting. Here are the ten most common copyright myths and the reasons why they're myths. I'll start with the first five here.
Common Copyright Myth #1:
"If the Copyright Owner Doesn't Sue Others, They Won't Sue Me."
Reality: It doesn't matter. If you take the risk, you might get sued anyways.
If you made a lot more money off the infringement than others, guess who they're coming for? You! It doesn't matter that they haven't yet sued previous infringers nor is this a defense available to you in court. It's kind of like speeding tickets. If you're the person they pull over, you're the one getting the ticket.
The decision of a copyright owner to enforce their rights is discretionary and can seem arbitrary. Just because they haven't taken action against others doesn't guarantee that they'll skip over you! Copyright owners are within their rights to pick and choose who they sue.
Common Copyright Myth#2:
"No One Will Notice or Care if I Use Small Portions."
Reality: Even borrowing small bits constitutes infringement and it's someone's job to notice.
A "de minimis" use is one considered so trivial or minor as to be non-infringing. Copyright law around the U.S. is evolving as it comes to the de minimis use doctrine and whether it's a valid defense to copyright infringement. The 6th Circuit (OH), for example, has ruled every use, no matter how small, is an infringing one particularly when there is open admission of the borrowed use. Meanwhile, the 2nd (NY) and 9th (CA) Circuits have ruled certain de minimis uses are acceptable, especially if the copied section is not substantially similar to the original work. Since the law is split on the matter, your best bet is to clear any sample you borrow or consult with an attorney for advice on whether the law would consider your use "de minimis".
You should work from the premise that every sample will need to be licensed or cleared, especially in sample-heavy genres like hip-hop and rap. As the ever important decision in Bridgeport Music, Inc. v. Dimension Films , 410 F.3d 792 (6th Cir. 2005) reminds us "Get a license or do not sample." That's the best way to assure that you don't make the mistake of infringing on someone's work. Don't presume you're in a favorable jurisdiction for de minimis use without consulting an attorney.
Common Copyright Myth #3:
"Citing the Source Makes It Okay to Use."
Reality: Only permission or a license from the source can make a copyrighted work "okay to use".
Copyright infringement is the unauthorized use of another's work. While acknowledgement is nice, it's not the same as permission. The photographer of the picture you copied on to your website might appreciate the credit you've given him, but he's still entitled by law to require permission or to be paid for its use. You need his explicit permission or a lawful exception to use his work. There are places, like the Creative Commons, where creators grant licenses or permission for use without a fee. What makes it available on a site like Creative Commons is that the authors have explicitly given permission for its free or limited use.
There are a few legal exceptions that are non-infringement and don't require a license. The first is public domain use where works lose protection after the end of their respective copyright terms (typically the life of the author plus 70 years) and are free for anyone to use. If it's in the public domain, you can do whatever you want with it! Google "public domain" and help yourself to any of the works you're certain are in the public domain.
You can also use a work without permission under fair use exceptions. These include exceptions for news reporting, criticism or commentary, education, or research. If your use is one of these exceptions, you may be able to use a copyrighted work without permission but be sure to consult an attorney since every fair use analysis is a subjective one and can be difficult for non-lawyers.
Common Copyright Myth #3:
"If I Change the Work 10% or More, It's a New Work."
Reality: It depends. More times than not, you've created a derivative work, not a new work.
One of the exclusive rights a copyright owner enjoys is the right to create derivative works. A derivative work is "a new creation that incorporates significant elements of a pre-existing work." This includes adaptations and re-imaginings of the original work.
The misunderstanding of course is that it's a certain fixed percentage of change that creates a new work when, in fact, it depends on the particular elements of the work and whether those elements are a predominant part of your new work. You could theoretically change 90% of a work and still not create a new work. That is a bit hyperbolic but it is possible. Every instance is evaluated independently, and no fixed percentage of change creates a new work. So be careful which parts you borrow if you're going to claim that you've created a new work. And when in doubt, presume you've created a derivative work or consult an attorney before presuming you've created a new work. If you're wrong, it may cost you down the road.
Common Copyright Myth #5:
"All 'Free to Use' Content Can Be Used For Commercial Purposes"
Reality: It says "free to use", but you have to doublecheck if it excludes commercial uses.
When you source a work online, perhaps through a Creative Commons license, you have to look deeper at the permissions being granted by the author of the work. Many times, an author or photographer will qualify the permissions of the "free to use" license with something along the lines of "except for commercial use" or "with attribution". Sometimes they are artistically objecting to using their work for profit or feel like if they're not profiting off the work, why should someone else? Either way, make sure to double check for any exceptions to your licenses to be sure, even if they say "free to use". People see the words "free to use" and forget to read the fine print.
Conclusion
There you have it, five of the most common copyright myths with brief explanations why. Make sure to consider these the next time you borrow from a copyrighted work.
In Part II, I'll break down the next five Most Common Copyright Myths.