5 Important Copyright Misconceptions That Linger

Facepalm ImageCopyright has been growing in the collective conscious of the general public since the late 90s and the Napster years.

With this heightened level of awareness has come at least some increase in general knowledge and there’s no doubt that the public, as a whole is more savvy about legalities of copyright than it was 15 years ago.

This means we’ve gotten away from many of the worst and most foolish myths, such as the idea that nothing carrying a copyright symbol (including files traded by a file sharing network) is copyrighted or that nothing you do is an infringement if you delete the files after 24 hours.

Still, it’s hard to say that everyone has become copyright savvy either. The truth is that copyright law is complex and difficult even for experts to understand. So, naturally, it’s unfair to expect people who are far less invested in copyright law to have a full, clear understanding of how the law works.

That being said, there are still some myths and misconceptions that are both breathtakingly common and very dangerous. They may not be quite as basic as the ones that were prevalent 15 years ago, but, in an age where everyone is both using and creating copyrighted works, they are equally important.

So, on that note, here are 5 of the more common and more important misconceptions that you can find on the Internet and what the reality behind them is.

Myth 1: Fair Use Is Magic

If you roam around YouTube long enough, you’ll inevitably find people who claim that just about every infringing video they post is a “fair Use”.

This, sadly, is because fair use is not well understood by most and that, in turn, is because fair use is complicated, convoluted and often hotly debated by even the brightest minds in the field.

Unfortunately, many online seem to have replaced an understanding of the ambiguities of fair use for a belief that fair use is anything they want to be.

Many believe that any attributed use is fair, that any non-commercial use is allowed under the law or that any change they make, no matter how small, makes their use legally acceptable.

It should suffice to say that none of these things are true. The truth is that fair use is a complicated and difficult defense to assert. It can only be truly made in a court and only be decided on by a judge and/or jury.

In short, the only way to truly assert fair use is to use the work, be sued for it and then win. By which point, you’ve likely spent a great deal of money and had a lawsuit over your head for many years of your life.

So while fair use is real and important, it’s not a magic shield that protects you from being sued or having your content taken down.

Myth 2: Every Song Has One Copyright

If you read Reddit or other social news sites, you’ve likely seen a meme or heard the story about how Price, or his representatives, ordered the takedown of his performance of “Creep”, which was originally written and performed by Radiohead. This lead Radiohead’s lead singer, Thom Yorke, to famously quip, “Well, tell him to unblock it. It’s our… song.”

Unfortunately, what Yorke and many others on YouTube don’t seem to understand is that music licensing isn’t that simple.

With every song there are two sets of copyrights. The first is for the song itself, which usually goes to the songwriter, and the second is for the performance. This is because it takes two tangible works to create most music recordings. The first is the written music and the second is the actual recording.

In the Prince case, Yorke, if he is the author of the song, would hold the songwriter copyright but Prince would who hold the performance copyright and, as such, would be within his rights to order any videos of it removed. It only takes one copyright holder to object to a use for it to become an infringement.

More importantly though, this means that, to license a song for a video or for use elsewhere, you typically need both sets of permissions. It also explains why covers can be infringements (they infringe on the songwriter’s copyright, not the performers) and why many people who think they got permission to use a work still face takedowns or worse.

Myth 3: Parody = Satire

Most people seem to understand that parody has strong protections under fair use. What most people fail to grasp is the difference between parody and satire.

Parody is when you use a portion of a copyrighted work to create another work that makes fun of the original work or its creator. A satire is when you use a portion of a copyrighted work to make fun of something else.

Parody enjoys broad protection under fair use but satire less so (PDF). While that dichotomy is controversial for many reasons, including that many satires have elements of parody in them, satires enjoy less fair use protection.

Basically, making a “funny version” of a song does not guarantee that it is a fair use. The same goes for a book, movie or anything else. This isn’t to say that satires can’t be and aren’t regularly fair uses, but that they have to hold their own in a more robust fair use test.

Myth 4: I Paid for It, It’s a Work for Hire

Here’s a reality that bits many entrepreneurs in a bad way. Just because you paid for a copyrighted work to be created doesn’t mean you hold the copyright in it.

Most people are aware that works for hire are owned by the people that paid for the works, however, most people don’t know how limited the principle is (PDF).

There are only two ways that a work could be considered a work for hire. The first, and most common way, is for the work to be created by an employee as part of their job. However, it’s important to note that this is an employee in the legal sense sense of the word and does not include freelancers or contractors.

Works by contractors can be works for hire, but only if they meet a series of criteria, the most important being that they agree, via written agreement before the work is created, that it is a work for hire.

In short, if you pay a contractor for a work and don’t get an agreement in advance that it is a work for hire (and it is one of the qualifying types of works) then it is the creator, not the purchaser who holds the copyright.

This is why services like Kunvay have sprung up to help make the transfer of copyright easy in these situations.

Also, though this belief is less common, it’s worth noting that just because you purchased a copy of something, such as a CD or DVD, doesn’t mean you own the copyright to it. While you own that physical copy you do not own the rights to the work that are on it.

Myth 5: Copyright Protects Everything

Finally, though it can feel as if copyright protects everything on the Internet, the simple fact of the matter is that there are many things it doesn’t.

Copyright protects works of creative authorship that are fixed into a tangible medium of expression. This includes text works, photographs, artwork, movies and music. However, it does not extend to ideas (just the expression of them), names, facts or other information that either are not creative enough, too short or not fixed into a tangible medium.

It also doesn’t (currently) protect fashion designs as fashion is deemed to be a “useful article”, though certain elements of fashion, such as the prints on fabric, may be copyrighted in certain circumstances.

This means that you can’t copyright a name, a piece of information that you’ve learned or an idea that you’ve had. You may be able to get trademark protection for a name and patent protection for an idea, but those are separate areas of intellectual property law.

Bottom Line

All in all, these are just some of the bigger misunderstandings that people commonly have about copyright law and they’re myths that you’ll see everywhere on YouTube, Twitter and other social networking sites.

But while holding these misconceptions might not have been that disastrous 15-20 years ago, on the Internet copyright is becoming more and more involved in our lives. Even casual Internet users need to be more familiar with copyright law than most people had to be a generation ago.

Unfortunately, getting any level of copyright understanding takes time and interest, things that are often in short supply online and, until then, complicated facts are going to be substituted with simple misinformation and that can lead to dangerous mistakes.

However, that can be considered true for almost any complicated issue, not just copyright.

8 comments
youtube unblocker
youtube unblocker

I think you need a proofreader. Myth #2: “Price” did a cover of “Creep,” or “Prince”? If there’s some new artist named Price, well, okay then.

Madame Martine
Madame Martine

I think you need a proofreader. Myth #2: "Price" did a cover of "Creep," or "Prince"? If there's some new artist named Price, well, okay then.

"R"
"R"

A year ago, I agreed to pay a producer/musician to compose music for a song I wrote. I provided the vocal melody & lyrics & he provided the music using my vocal melody - it was to be work for hire, but we had not signed anything yet. This was someone I thought I knew well & trusted (my first mistake), so agreements would eventually be signed. After the work was completed, he had a hunch about the finished song, so he demanded songwriter credit, something like a 90/10 split. His reasoning was that he was an experienced professional, had all of these credits to his name & felt he was entitled to most, if not all of the song. He was trying to exploit me as a new songwriter, but of course I told him to go to hell. He threatened to take the music & change the vocal melody & leave me back to square one. Eventually we agreed on a split, but he refused to share any ownership of the music itself. I didn't think I owed him any ownership, including the music because it was work for hire & my melodies. My question is, could I have gone after some ownership of the music too since it was a derivative of my work & not me writing to one of his original tracks? Please, any info would be helpful.

Rob Walker
Rob Walker

Did Prince license the song from Yorke? If not, he violated Yorke's copyright by performing it live.

AMO
AMO

Succinctly encapsulated!! thanks

J. Paulson
J. Paulson

You never, ever, ever collaborate on music with a co-writer until you have all the legal details in writing. If it's not set down in writing before the work is done, then after the work is done you are S.O.L. if the collaborator decides that they feel they own rights to the finished work. You don't have to give in and give them any share of the song automatically - but you will be forced to negotiate the rights splits. Either get a good attorney and negotiate from there - or agree to split no less than 50/50 and you retain 100% administration of the song (meaning he collects royalties but only you get to say "yes" or "no" to license requests).

There are a myriad of ways you could negotiate this and I'd write a chapter of a book trying to give you all the scenarios. But ultimately you have to decide how much the music improves your lyrics and melody and whether you feel confident that you could take your lyrics and melody somewhere else and get good music to go with it. Keep in mind that his threat to take his music elsewhere and change the vocal melody can be turned around on him as well. He based his music on your melody and if that melody is woven into the music then you would be entitled to ownership in his "new" work as well. A good attorney can explain all that to him if he doesn't believe you.

Noah Peterson
Noah Peterson

you can play anything you want live you don't need permission or a license. you, the artist, only need a license when you record it. the venue needs a license for performances/broadcast

Jonathan Bailey
Jonathan Bailey

Actually, musicians and record labels sign blanket licensing deals for cover songs. You'd have to talk to someone more familiar than I about this, but you can cover any song and the royalties you owe the song writer are pretty much set in stone.