Copyright Fallacies

Property is property, and using copyrighted material without permission is no different from the Artful Dodger picking a pocket.

Well, that isn’t quite true. Many people who “borrow” copyrighted material do so because they believe a copyright fallacy and don’t know their use is wrong. But in the law, ignorance is no excuse.

That’s why I’m using this month’s blog post to bust a few of those fallacies. They cover pictures, music, poetry, and song lyrics as well as books and blog posts and other prose texts.

Here are some of the most common fallacies.

Anything on the Internet is fair game.

There are four basic types of materials on the Internet.

• Materials posted by the copyright owner;
• Materials posted with permission of the copyright owner;
• Materials posted in violation of the copyright laws—unfortunately, this is the largest category; and
• Materials that are in the public domain. More about this below.

Only the last category is available for use without permission or a fair use. (See my July 25, 2013 post for a description of fair use.)

It doesn’t have a copyright notice, so it isn’t copyrighted.

All works are copyrighted the minute they are put in tangible form, which includes the digital formats used on the Internet. A copyright notice is just a reminder. Material that doesn’t have one is still protected by the copyright laws.

“Royalty free” means free.

“Royalty free” means you don’t have to pay a royalty every time you use the material. But you do have to pay a one-time license fee, and you can use the material only under the conditions described in the license. If you use royalty free materials without paying the license fee, you have violated the copyright.

Since it’s short, I can use the whole thing.

The opposite is true. As a general rule, you can use only a small percentage of any work, so the shorter a piece is, the fewer words you can copy. If a passage is a miniscule percentage of the whole but is the heart of the work, however, even that may violate the copyright. This rule is also discussed in my July 25, 2013 post.

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So what can you use? There are four basic categories.

• You own the copyright.
• You have permission from the copyright owner, which includes paying a license fee for royalty free materials.
• It's a fair use under the law—but you are responsible for determining if it is a fair use, and there can be serious consequences if you are wrong.
• The material is in the public domain.

But what materials are in the public domain? I addressed that earlier this year but will repeat it here for your convenience.

• Older works for which the copyright has expired. This is mostly material that was published in the United States before 1923. Works that were created or first published in another country may have a longer copyright in those countries, so you may have to be careful about distribution. Some material published after 1923 is also in the public domain, but that is more complicated to figure out.
• Material produced by federal government employees in the course of their official duties. This includes opinions issued by federal courts and reports and photographs created by employees of federal agencies.
• Material that cannot be copyrighted, such as names and titles, short phrases and slogans, ideas, and facts. However, names and titles and short phrases and slogans can become trademarks, which entitles them to a different kind of protection. And although ideas and facts cannot be copyrighted, the expression describing them can be. (If you want more information on what cannot be copyrighted, see my posts from May 24, 2012, June 27, 2012, July 26, 2012, August 23, 2012, and September 27, 2012.)

When you use material that is not your own, you should identify the person who created it and explain why you are allowed to use it. If the material is in the public domain, that tells knowledgeable readers that they can use it freely. If it is used with permission, that tells those same readers that they need permission, too. I’ve given you an example of a notice below.*

As Christian writers, we honor God by honoring the copyright laws. But you can’t do that if you don’t know what they are.

So now you do.

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* The picture at the head of this post shows the Artful Dodger picking a pocket while Oliver Twist looks on. The drawing is one of the illustrations that George Cruikshank created from 1837 through 1839 for the serial version of Charles Dickens’ Oliver Twist. The picture is in the public domain because of its age.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. The second edition of Kathryn’s first book, In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion, will be coming out at the beginning of October. You can learn more about Kathryn at www.kathrynpagecamp.com.