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5 Stupid Copyright Questions That Aren’t

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Creative Commons License photo credit: TheTruthAbout…

Typically when I mention that I deal with copyright issues on the Web, I find myself mobbed. Online and off, people have a lot of questions about copyright and how it works and are eager to get some information from someone who, though not a lawyer, is at least familiar with the law.

Most of these questions are very basic and those who are familiar with copyright law might call many of them “stupid”. They’re questions that are answered on dozens, if not hundreds of sites, questions that have had consistent answers for decades and questions that most people should know by heart. Yet they come up again and again and again.

But why is that? Perhaps there is more to these questions than meets the eye. I began giving it some thought and realize that much of the confusion with copyright law comes from the law itself. When you think about these issues from a layperson’s perspective, it’s easy to see why they are confused.

So, before you gnash your teeth at stupid copyright statements or questions, here are the reasons why five of them may not be as stupid as you think.

1. How Do I Get a Copyright?

Like nails on a chalkboard, this question can cause a full-body shiver in most copyright-minded people. A copyright is not like a tape dispenser, you do not go down the corner store and pick one up. One does not “get a copyright”, but rather, is granted copyright protection in a work as part of fixing it into a tangible medium of expression.

Even worse, there is nothing that one has to do to obtain copyright protection. Copyright is granted in a work the moment it meets the qualifications of copyrightability and no further action is needed. Usually people who are asking what they need to do to obtain a copyright don’t have to do anything at all.

Why it Isn’t Stupid

First off, up until 1978, which is not that long ago for many, there were requirements and steps people had to take in order to get copyright protection. Typically one had to identify their work as copyrighted, placing a notice and year with the work. Though these requirements have been lifted, most copyright holders still follow this protocol. Take a look at the back of your CDs or in the footers of most Web pages.

Second, in the U.S., one still has to register their copyright if they want to sue for infringement. That means that, while you have all of the rights in a work from the moment you create it, enforcing those rights is almost impossible without first registering the work.

It’s easy to see why people are confused about copyright law in this area. The law is recent and it creates something of a double standard that even some lawyers struggle to figure out. Laypeople have good reason to ask this question.

2. Why Did YouTube (or some other site) Take Down My Clip?

The reason YouTube took down your clip is in the email they sent you about them taking down your clip. Someone, rightly or wrongly, felt that your clip violated their copyright and filed a notice against you. YouTube, as per the DMCA, removed the clip.

The reason is obvious, it is in the notice and anyone capable of reading the English language knows why the clip was removed. It makes no sense to ask about something that is in plain black and white.

Why it Isn’t Stupid

This question has three reasonable grounds for being asked. First, many site use very formal-sounding stock letters to announce takedowns and that leads many to believe that the site itself had passed judgment on the clip and asked for it to be removed, not the copyright holder.

Second, many are confused about what exactly is in the DMCA. Though most are aware that it deals with DRM, most don’t realize that it also includes the notice and takedown provisions, which is what governs such content removals. When many see the letters DMCA, they associate it with DRM, something that doesn’t make a lot of sense in this case./

Finally, though people usually understand the video was taken down for copyright reasons, but are uncertain about why it was viewed as infringing. Sometimes they are right to question whether it was infringing, other times it stems from a misunderstanding about fair use.

In short, the question often isn’t so much about why it was removed, but why someone might have thought it was infringing or what specific rule of copyright was broken.

3. Can I get a Copyright on This Name/Word/Phrase/Title?

No. You can’t. Copyright protects works of creative authorship that are fixed into a tangible medium of expression and it specifically precludes short phrases, titles, etc. The law is very clear on this and for very good reason, if you could copyright a title or a name, then very quickly nothing in the English language would be safe from copyright protection.

There is no way to copyright words or short phrases and that’s to the benefit of all.

Why it Isn’t Stupid

You can’t copyright a short word or phrase, but you can trademark one.

Many people confuse trademark and copyright law because they are similar in many regards and do have a great deal of overlap, especially when dealing with logo design. Trademark is a much more limited protection than a copyright, designed solely to protect a business’ identifying marks and names within its field, but the two do have a lot in common.

Given that there are three types of intellectual property, copyright, trademark and patents, it is understandable that people would be confused, especially when there is so much overlap between the three.

4. Someone Took My Idea and Used It, Can I Sue Them?

If it’s just the idea, the answer is no. Ideas are not copyrightable. As mentioned in the above questions, it only protects works of creative expression, not the idea behind them. If you want to make your own book about a boy wizard and a wizard school, you could, so long as you didn’t use any copyrightable elements from Harry Potter.

Though it is always rough when someone steals your idea and runs with it, even if you’ve already executed the idea, there usually isn’t much that can be done about it. Just because I did a top five list of stupid copyright questions doesn’t mean you can’t.

Why it Isn’t Stupid

Two words: Derivative Works.

Copyright holders do have the exclusive right to create derivative works based upon their creations and that includes some of the “ideas” in the work including, for example, characters in a story.

Using the Harry Potter example above, you could make your own generic book about a boy wizard, but you couldn’t call it Parry Hotter and expect to walk away (especially with Rowling’s reputation). Fan fiction, for example, is an infringement of the original works (though it is often tolerated by copyright holders) and copyright holders, generally, are the only ones that have the rights to make sequels, prequels, etc.

Where the line is drawn between just using the idea behind something and creating a derivative work is a moving target with a lot of gray area. Typically, the only way to know the answer is to sue, go to trial and get a ruling.

Though you can’t copyright an idea. Where the idea ends and the expression begins is a terrible mess to say the least and, often times, what one casually refers to as the “idea” could actually have some copyrightable elements.

5. Does Mailing Myself a Copy of My Work Do Anything?

No. Some people are convinced that the post office has some kind of magical property that causes anything to be sent through it to provide not only perfect proof of ownership, but also an enforceable copyright on par with registering the work with the USCO.

It does neither. This is a myth that has been covered on this site many times and needs to die. However, it is kept alive by tons of people, mostly on the Web, who still believe it and repeat it as if they are experts on the topic.

I may not be a great expert on copyright law, but I know to instantly disregard any comments from someone who tries to push this as a real solution.

Why it Isn’t Stupid

Not only does has this myth been kept alive by the Web’s rumor mill and love for easy fixes, but it goes back to the first question about how one obtains a copyright. There is a lot of confusion in this area and people who are not artists, musicians or writers for a living are wondering what they can do to protect the works that they have created.

Though the USCO does dispel the myth on their site in the FAQs, most people aren’t even aware of the exact role that the USCO and copyright registration does play.

The good news about this question is that, when it is phrased as a query and not as a statement of fact, is that people are detecting that something seems wrong about this and are asking rather than doing. They’ve been told this somewhere before and were wise enough to at least get a second opinion before putting faith into it.

It may sound like a stupid question, but when it is asked and not told as a fact, it is a sign that the person is thinking about these issues and isn’t likely to fall for an obvious trap.

Conclusions

The bottom line is that copyright law is confusing and it should be expected that most people will have a lot of questions about them, including many elementary ones. The simple truth is that copyright law is a rapidly-changing field and almost none of the copyright code we operate under today existed much more than 30 years ago and many of the most important laws were passed 10 years ago or less.

To add to the confusion, many of the technologies of the last 15 to 20 years have changed the way we interact with content making it so that, for the first time, we are all copyright holders that need to worry about being infringed as well as publishers that need to worry about not infringing others.

When you combine new technologies with a relatively new legal code and a code that is muddled and conflicted on its best of days, confusion is inevitable.

Thus, I do my best to be patient, even when I’m asked “stupid” copyright question. After all, everyone has had their misconceptions about copyright law and everyone misunderstood it at some point.

At least the people asking questions are smart enough to know what they don’t understand are doing what they can to remedy the problem…

44 Responses to 5 Stupid Copyright Questions That Aren’t

  1. john andrews says:

    As you note, in the US it is virtually impossible to prevent/recover from infringment unless you have filed with the copyright office. So that changes the rules.. practically speaking. The rules follow specific time schedules that flow from the day you "first published" the work, which means yes, there are reasons for paying attention to when you shared your work with others, emailed it, posted it, etc.

    On the one hand people blindly follow mythical rules for copyright… yes. But on the other hand, many of those myths are based in fact and those facts might be important practically.

    • The rules about when you need to register a work are even more muddled on the Web. According to the USCO, putting a work on the Web does not necessarily constitute publication, meaning that you need to register before the infringement, not three months before publication. That is, unless you did something else with it that you feel constitutes publication.

      This is why copyright lawyers make so much money…

  2. M says:

    Stupid question is the one about copyrighting your Elvis sighting which is actually in the copyright,gov faq :)

  3. Frances says:

    But how can you get a site taken down when the whois address is wrong? My lawyer mailed a cease and desist only to get it back "address unknown".

    • There are several ways. The best is to file a DMCA notice with the host and have the host remove the work. If you can email me a link to the infringing page, I can have a look at it for you…

  4. john andrews says:

    As you note, in the US it is virtually impossible to prevent/recover from infringment unless you have filed with the copyright office. So that changes the rules.. practically speaking. The rules follow specific time schedules that flow from the day you “first published” the work, which means yes, there are reasons for paying attention to when you shared your work with others, emailed it, posted it, etc.

    On the one hand people blindly follow mythical rules for copyright… yes. But on the other hand, many of those myths are based in fact and those facts might be important practically.

  5. M says:

    Stupid question is the one about copyrighting your Elvis sighting which is actually in the copyright,gov faq :)

  6. Michael says:

    The problem with dispelling the myth of “poor man’s copyright” is that most debunkings, even that provided by USCO’s FAQ, provide no example of how mailing yourself your own work could be used as fraud. I could mail myself an unsealed envelope stuffed with blank paper. When I get the envelope, I could wait until I see a published work that I want to claim as my own, remove the blank paper from the envelope, seal up the envelope, and then claim the postmark proves that I created the work, not the original author.

  7. Rob says:

    Um, I have another stupid question :) If a hosting site takes down unlicensed copyrighted works from a non-responsive perpetrator, what’s to keep them from putting it back up? Do I have to go all the way to court to keep it down?

  8. Frances says:

    But how can you get a site taken down when the whois address is wrong? My lawyer mailed a cease and desist only to get it back “address unknown”.

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  14. There are several ways. The best is to file a DMCA notice with the host and have the host remove the work. If you can email me a link to the infringing page, I can have a look at it for you…

  15. Not really a stupid question. If the infringer is so motivated, they can file what is known as a counter-notice and have the work put back. You would have to file a suit within 10-14 days in order to prevent the counter-notice from taking effect. The good news is that such notices are VERY rare, I've sent hundreds of notices and never seen one, and if one were to file a false counter-notice, the law makes it really easy to file such a lawsuit and justify it. I wouldn't worry too much about this though. Still, definitely be aware.

  16. Though I did mention something similar to that when I was dispelling it in my old articles, I do agree that there isn't enough talk about how it could be abused and exactly why it is not accepted.

    That being said, in recent years, the idea of poor man's copyright has been taking a more electronic twist. Though some companies onilne work to provide legitimate non-repudiation, others are pushing it as a replacement, outright scamming customers…

  17. 5 Stupid Copyright Questions That Aren’t: Shared by Mitch No problem with these questions:

    photo credit: TheT.. http://tinyurl.com/7akkhe

  18. Not really a stupid question. If the infringer is so motivated, they can file what is known as a counter-notice and have the work put back. You would have to file a suit within 10-14 days in order to prevent the counter-notice from taking effect. The good news is that such notices are VERY rare, I’ve sent hundreds of notices and never seen one, and if one were to file a false counter-notice, the law makes it really easy to file such a lawsuit and justify it. I wouldn’t worry too much about this though. Still, definitely be aware.

  19. Though I did mention something similar to that when I was dispelling it in my old articles, I do agree that there isn’t enough talk about how it could be abused and exactly why it is not accepted.

    That being said, in recent years, the idea of poor man’s copyright has been taking a more electronic twist. Though some companies onilne work to provide legitimate non-repudiation, others are pushing it as a replacement, outright scamming customers…

  20. I remember that and have always gotten a chuckle out of that. I can’t tell if the government has a sense of humor or if they get some really strange questions there…

  21. The rules about when you need to register a work are even more muddled on the Web. According to the USCO, putting a work on the Web does not necessarily constitute publication, meaning that you need to register before the infringement, not three months before publication. That is, unless you did something else with it that you feel constitutes publication.

    This is why copyright lawyers make so much money…

  22. via <a rel="nofollow" href="http://twitter.com/plagiarismtoday">@plagiarismtoday 5 Stupid Copyright Questions That Aren't Stupid at All http://tinyurl.com/7akkhe

  23. recommends "5 Stupid Copyright Questions That Aren’t | PlagiarismToday" ( http://tinyurl.com/7akkhe )

  24. [...] we took a look at five “stupid” copyright questions and why they weren’t stupid at all. As was illustrated in the post, copyright law, in places, [...]

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  26. [...] a fine piece at Plagiarism Today headlined ‘5 Stupid Copyright Questions That Aren’t‘. Its author, Jonathan Bailey, ably demystifies much of the confusion about copyright, a [...]

  27. [...] Today has 5 Stupid Copyright Questions That Aren’t and The 3 Biggest Kludges of Copyright [...]

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  29. Don't miss Jonathan Bailey's reconsideration of five copyright questions which seem stupid but aren't: http://is.gd/gJ0l

  30. gayolin bailey says:

    Mr. Bailey -Do you give free opinions? I have a question about a children's book I have written. I will probably self publish, and the likelihood of my work being read beyond my circle of friends and family is remote. So, I need my financial investment to remain minimal.Oh, I feel like a foolish cheapskate ! Yours truly, nevertheless,Gayolin Bailey

  31. Send me an email using the contact link and I will see what I can do. I do offer free opinions but it is on a "as I have time basis". I should have some time later this week though. Feel free to drop me a line.

  32. [...] 5 Stupid Copyright Questions That Aren’t (plagiarismtoday.com) [...]

  33. Ed Springer says:

    Suppose I am paid by a website to write a weekly column. Consistently I use l-o-n-g word for word quotes of others noting that the material came from a specified copyrighted source. Do have to pay and can I be sued by the copyright owner?

  34. The truth is that it depends. The big question is whether your use is "transformative", meaning that you are creating a new work, or if it is meant to replace the original. Without knowing the specific situation it is impossible for anyone to tell and, even then, it would only be guesswork as it would be up to a judge and/or jury to make decisions about the actual application of fair use in that specific case.Long story short. I don't know and can't know.

  35. Ann Sharples says:

    Thank you for such straightforward and sensible information!

  36. James says:

    I see you haven't posted a comment in a year. May be wasting my time. I want to make a six minute independent film for a contest. In it one of the characters is reading the book Twilight. They discuss how things have changed since Bram's version of Dracula. One line is "Why don't they just eat animlas. Like the Cullens." References the main family of vampires in the book. I've had interest in the screenplay, but everyone is afraid it would be overstepping copyright laws. And no, It does not paint Twilight in a favorible picture. Thanks in advance. If you're still around.James

  37. I'm still around but this post is over a year old so yes, comments have died down. As far as your case goes, it sounds to me like you would have a solid parody and/or commentary fair use defense. All in all, I think you'd be ok but if you want to email me the details via the contact form, feel free to drop me a line. Hope this helps!

  38. Antigone H says:

    Hiya, hoping you could help me.
    I’m creating a series of pin up girl style posters using recognisable features of horror movie villians (for a fake nightclub ‘Club Villian’) like Freddy Krueger and the Jigsaw puppet, and I’m not sure where it stands legally. I’ve been all over the internet looking for an indication if I’m in a grey area or a strictly black and white one. The images are essentially pin up girls dressed up as the villians with no real explicit mention of their name or films ex, the Freddy girl has a hat, a stripy play suit and a knive glove.
    I’ve had differing opinions on whether or not this could get me in trouble, and any advice you could give me would be massively appreciated!

  39. sinistar99 says:

    I have another question: What would you have to do in order to pay or otherwise get permission of a copyright owner to turn the copyrighted work over to the public domain? What is the process for taking something that’s copyrighted and basically un-copyright it completely?

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