Posted by Admin Saturday, March 24, 2012 8:07:00 PM

by Brenda L. Speer

During the term of copyright for an original work of authorship, the copyright owner of the work has the exclusive right to:

1) Reproduce the work;

2) Prepare derivative works of the work;

3) Distribute copies of the work;

4) Perform the work publicly (as applicable); and

5) Display the work publicly (as applicable).

During the time I’ve been practicing law, I’ve heard several, oft-repeated misconceptions regarding limitations on the extent to which a copyright owner can enforce his rights against infringers, particularly with regard to the right of reproduction.

Myth No. 1: If an excerpt from a work is less than 300 words, then the excerpt may be reproduced without the need to seek the copyright owner’s permission.

False. The copyright owner’s right of reproduction of an original work extends to the work in whole and in part. There is no magic number of words that may be used from an original work without the need to seek the owner’s permission. By way of example, let’s take the case of the haiku. You may recall from your school days learning to craft one of these structured three line poems; wherein the first line has five syllables, the second line has seven syllables, and the third line has five syllables.

Can’t Touch This
by Brenda Speer

I wrote this haiku.
It belongs to me, not you.
You can’t copy it.

As you can count, this poem only has 14 words; however, these 14 words constitute 100% of the poem. According to the myth of the 300 word rule, you could copy this entire poem without the need to seek my permission. Now you know that this is incorrect and would constitute copyright infringement, because reproduction of the poem, in whole or in part, is a right that belongs exclusively to me.

Myth No. 2: If an original work is changed by 10% or more, then it becomes a new work and may be reproduced without the need to seek the owner’s permission.

False. Just as with the myth of the 300 word rule, there is no magic percentage by which an original work may be changed to take an unauthorized derivation of that work out of the realm of copyright infringement. Again, the copyright owner’s right to prepare a derivative work (a transformation of the original work) extends to the original work in whole and in part. Conjure up an image of Andy Warhol’s multicolored, pop art portrait of Marilyn Monroe. For mathematical simplicity, let’s assume there are 10 colors used in equal parts in the portrait. Again, following the myth of the 10% rule, you could change one of the colors and prepare and reproduce a derivative work of the Marilyn Monroe portrait without the need to seek permission from Andy Warhol’s estate. (Although he is deceased, his Marilyn Monroe work is still within its copyright term.). However, nothing could be further from the truth. Such a derivation and reproduction would constitute copyright infringement and we all seem to inherently understand this.

Myth No. 3: If a work is publicly available, then anyone can use it without the need to seek the copyright owner’s permission.

False. As mentioned in last month's newsletter, public availability of a work is not the same as the work being within the public domain. What's the difference? An original work of authorship is publicly available if it can be accessed by the public. That is, any book or sound recording you can find in the store or at the library is publicly available. But just because a work is publicly available, does not mean it is in the public domain. A work falls into the public domain once its copyright term expires. A seasonally relevant example is the movie It's a Wonderful Life. Due to an unfortunate clerical error, the owners of the movie failed to renew its copyright term. (At the time the movie was created, 1946, the term of copyright was 28 years and could be renewed for a subsequent 28 year term.) Accordingly, the film’s images entered the public domain in 1974. So, the film images from It’s a Wonderful Life are both publicly available and in the public domain. Because the film images are in the public domain, they may be reproduced without the need to seek the owner’s permission. (WARNING: Do not rush out and make copies from your DVD version of the movie for your friends! Copyright issues surrounding the movie are a bit more complicated, because the movie is based upon the short story “The Greatest Gift” by Philip Van Doren Stern. On the other hand, the movie How the Grinch Stole Christmas, although publicly available, is not yet in the public domain.

Myth No. 4: If only a portion of a work is copied, then such use is a “fair use” and may be reproduced without the need to seek the copyright owner’s permission.

False. First, you must understand that any copying of an  original work within its term of copyright, no matter what portion is copied or how much is copied, is technically copyright infringement. The concept of “fair use” is a defense to copyright infringement. What that means practically speaking, is: You've copied someone else's work; they've sued you for copyright infringement; and your defense is the copying is a fair use and, therefore, not copyright infringement. What’s fair use? There are certain instances in which reproduction of an original work of authorship may be considered fair use and, therefore, not copyright infringement. These certain instances are explicitly defined by federal statute and are:

“For purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

In determining whether a reproduction is considered a fair use or not, the courts will consider several factors, not in order of importance and none of which is dispositive:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work;

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4) the effect of the use upon the potential market for or value of the copyrighted work.

When it comes to fair use, the best defense is a good offense. It is always best to obtain permission from the copyright owner to reproduce a work in whole or in part.


© 2008 BL Speer & Associates

BL Speer & Associates
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