7 Biggest Myths Business Owners Believe About Using Copyrighted Material
Understanding copyright law can be confusing for business owners, but the costs of infringing on another's copyright can be very high. To discover some of these copyright myths, we spoke to Barbara Bressler, a law professor and director of the Technology/Intellectual Property Clinic at DePaul University College of Law in Chicago.
The Clinic provides pro bono legal services for entrepreneurs, artists and inventors in the areas of copyright, trademark and patent law.
Here are the seven biggest myths business owners believe about copyrights.
1. "I can use a small amount of the song or text without a problem."
There is no "safe" percentage or portion of a work that can be used without obtaining permission from the copyright owner. "I had a client tell me that one could use up to eight bars of a musical composition and it would not be considered infringement," Bressler recalled. That's not true – using even a few seconds of a song or a few lines of a piece of text without the owner's permission may be copyright infringement. Last December, a songwriter sued Alicia Keys for allegedly sampling two seconds of his song in her song "Girl on Fire." The case was settled earlier this year for an undisclosed amount.
2. "I can copyright my idea."
Copyright protects "original works of authorship" in a tangible medium of expression. In other words, original books, musical compositions, movies and computer software are capable of copyright protection. Ideas are not copyrightable: only original works of authorship are eligible for copyright protection. Descriptions, however, may be copyrighted. For example, the ingredients of a recipe are not protected, but the way a cookbook is compiled, the accompanying photographs and explanations may be copyrighted. Protecting your invention for a new technology falls under patent law, under the umbrella of Intellectual property rights, which are discrete areas of law that people tend to confuse with copyright. (Copyright, trademark, and patent law all fall under the general category of Intellectual property.)
3. "Since I'm not making money off the song/image/story, it's fair use."
Fair use is a defense to a claim of copyright infringement. Courts review four factors to determine whether use of a copyrighted work is "fair." This myth may be true, but only on a case-by-case basis. And it's not wise to believe fair use is a "slam dunk" defense, because it's very fact-specific. Fair use is reviewed on a case-by-case basis. Parody, for example, is considered a classic example of fair use.
Whether the use is commercial is just one factor courts consider. The other factors are: the purpose and character of the use (how the original work is being used – for example, is it a parody or commentary?), the nature of the copyrighted work (is it factual or biographical information?), amount and substantiality of the work used (is it the “heart” of the work? A memorable or key part of the original work?), and the effect of the use on the potential market or value of the copyrighted work (are people less likely to purchase the original work because of the use?).
4. "I can copyright my business name/logo/slogan."
Entrepreneurs often confuse copyright with trademark, Bressler says. A trademark is a word, phrase or logo that identifies the source of a product or service. It's designed to prevent consumer confusion as to the source of a product or service. Examples of trademarks include the Big Mac, the "I'm Lovin' It" tagline, and the golden arches that are synonymous with the McDonald's corporation.
5. "I tried to find the author/photographer, but couldn't, so I can just go ahead and use the work."
Not so fast, Bressler says. These are called "orphan works," and they can present a liability problem for users who haven't obtained permission. The Copyright Office and Congress have considered possible solutions to this frustrating problem for the past several years but, as of now, there's no guidance or law. If you intend to use this material, be sure to perform a risk/benefit analysis.
6. "Someone else posted an infringing image on my website, so I'm not liable."
You might be. The Digital Millennium Copyright Act (DMCA) offers a "safe harbor" for owners whose websites contain copyrighted work posted by a third party. (For example, user generated content.) Bressler says entrepreneurs can help themselves by learning about DMCA protections, such as posting a DMCA notice and takedown procedure in the website's terms and conditions.
7. "The woman in the photo isn't a celebrity, therefore I can use her picture."
Wrong. All individuals have the right of publicity, or the right to control their name, voice, image, and likeness, regardless of whether or not they're a public figure. Each state has its own laws governing right of publicity, but most states provide statutory damages for violating an individual's right of publicity for commercial use. Make sure to have a release for anyone in the photo, as well as permission from the photographer (if you didn’t take the photo yourself).
Related: Using Someone Else's Intellectual Property Comes At a Price