The basic premise of copyright law isn’t hard to understand, but like many other areas of the law, it’s developed its share of mythical corollaries. Here are probably the ten most common misconceptions about copyright law in the workplace, and the real truth behind them...
MYTH #1: “I’m protected because I mailed a CD of the software to myself/our HR department/corporate legal/ my attorney by registered mail and we kept the sealed envelope with our corporate records.”
This myth about mailing a work to yourself has been around for a long time. It doesn’t create the copyright in the work and it’s no substitution for proper registration. Registration of the copyright with the Copyright Office is the best way to prove the validity and ownership of a copyright.
MYTH #2:“If it doesn’t have a copyright notice on it, it isn’t copyrighted and I can make as many copies as I like.”
No. A copyright notice is not required for copyright protection. This requirement was dropped 15 years ago. However, placing a proper notice on the finished work is strongly encouraged, and can demonstrate that infringers should have had notice as to the ownership in a work.
MYTH #3:“It’s fair use if I make changes to 10% of that website text.” Or: “We can’t accuse that developer of infringing my copyright because he made some changes to our software code.”
Mostly untrue. Among the exclusive rights enjoyed by the copyright owner is the right to make “derivative works,” or adaptations, of the protected work. “Fair use” is a defense to copyright infringement based on the idea that others should be able to engage in a certain amount of unauthorized copying for purposes such as criticism, commentary, parody, news reporting, research, scholarship, and teaching. Fair use usually involves a short excerpt, and the “10%” rule is nothing more than a myth. If you copy an entire article from a website, claiming “fair use” is about as convincing as “the dog at my homework.”
MYTH #4: “If we don’t charge for unauthorized copies, it’s not infringement.”
Whether or not charges are made for copies can affect the damages recoverable for a copyright violation, or the validity of a fair-use defense, but that’s it. Copyright law imposes “strict liability” on infringers, so the copyright owner you took from (and the court) won’t care at all whether you charged for copies or not. The mere copying of a protected work, whether or not any money changes hands, can be an infringement.
MYTH #5: “If it’s posted on the Internet, it’s in the public domain and I’m free to use it.”
Yes, and the earth is flat. Works residing on websites are protected by copyright, just as works in print are. It is not necessarily true that just because a copyright owner posts a work on the Internet, he or she has given an “implied license” for free copying by all comers. A copyright violation is a copyright violation whether it occurs in cyberspace or on terra firma.
MYTH #6:“Somebody has that title (or name or phrase) copyrighted.”
Titles, names, words, phrases, slogans, or most anything that is short and lacks “minimal creativity” can’t be protected under copyright law. Sometimes this is really a reference to a trademark, which can be any word, phrase, or symbol used in commerce to designate the source of a product or service.
MYTH #7:“Hey! We’ve been infringed because we thought of that idea in our board meeting last year!”
No, not even if your board minutes reflect that Tom from Accounting had the idea. General concepts, ideas, methods, facts and rules are not protectible by copyright—only the expression is. So, even if you have a record of someone in the company having the idea itself, you haven’t been infringed if a competitor has the same idea (or talks to Tom in Accounting) and actually develops the idea into a program.
MYTH #8:“We own part of their copyright because we gave them the idea for that business model!”
Probably untrue. Joint authorship, for copyright purposes, requires a demonstrated intention by both authors to merge their independently copyrightable expression in a unitary whole.
MYTH #9:“We bought that software, so it’s OK to make a copy for our new hire.”
Wrong, wrong...and wrong. The copyright stays with the author. Owning a physical copy of a CD or purchasing one license for a download of web-accessible software does not entitle you to burn another CD or download more copies without permission (and probably a fee).
MYTH #10: “If you don't defend your copyright, you lose it…”
False. Copyright is effectively never lost these days, unless explicitly given away.
Have questions about your company’s copyrighted works? Need more information? Contact one of our trademark professionals in the Intellectual Property Practice Group at Doerner, Saunders, Daniel & Anderson, L.L.P. at 918-582-1211, and visit us on the web at www.dsda.com.
This advisory is only intended to provide general information, and so it should not be relied upon for specific legal advice.
You are strongly encouraged to contact the appropriate legal professional for proper advisement.