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.
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…