This past week saw a story about copyright and plagiarism in Mississippi that could only happen in Mississippi. According to the Clarion-Ledger, Charles Johnson, a blogger from California used photos on his website belonging (copyrighted) to someone else, specifically The Hattiesburg American newspaper (owned by Gannett) and The Associated Press. The news article in the Clarion-Ledger states he did not give credit, nor did he attempt to license the photos. In a really bizarre twist, Johnson is now stating he feels he has a libel suit because he did not wrongly misuse the photos.
Strange. You can (and should) read the most recent version of the story HERE.
This got me thinking about common every day myths related to copyright law I hear on a regular basis. I also cannot help but to speculate as to where Mr. Johnson’s logic might lie. In honor of reporter Sam Hall with the Clarion-Ledger dealing with copyright law issues this week, here are The Top 5 Most Common Myths I hear related to copyright law.
- If the photograph, music or book does not have a copyright symbol ©, then it is not protected by copyright and I can use the material however I choose without fear of committing copyright infringement.
FALSE! As of March 1, 1989, use of the copyright symbol is optional. While it is highly encouraged, it is not a mandatory requirement in order to receive copyright protection. There are many things that may be subject to copyright protection that do not use the symbol, but are nonetheless still as protected. Copyright protection exists from the moment of creation, provided it meets the other requirements of being original and fixed in a tangible medium of expression.
- If I find it on the internet, then it must be free to use, so long as I give credit.
FALSE! I think this might be the basis of Johnson’s thought process. (Admittedly, I have not spoken with him and am only speculating based on his tweets and now claim of being libeled). The only thing credit does is make you not a plagiarizer. You are simply telling the world you did not create the photograph. However, you still committed copyright infringement because the owner of the photo is the one who has the exclusive right of reproduction of the photo. For more on the rights held by a copyright owner, read The Magic Wands of Copyright. Plagiarism and copyright infringement share many similarities. Giving credit does not absolve you from copyright liability.
- The First Amendment and free speech allows me to use anyone’s copyrighted work.
FALSE! As my longtime readers know, I love the First Amendment. It’s my favorite of all the Amendments. However, the First Amendment protects you against the government taking action against you because of something you said. It does not give you the blanket right to use someone else’s products without permission. The First Amendment does not mean there will never be consequences to saying what you want. And, if saying what you want includes using someone else’s work that is subject to copyright protection, then you will face consequences.
4. If I mail it back to myself in the mail, then that is “just as good as” registering with the United States Copyright office. FALSE! This is what I often hear referred to as the “poor man’s copyright.” Placing it in the mail only serves to show the date you mailed it to yourself. It is the equivalent of owning a car, but having no gasoline to put in it or a gun with no bullets. If you register your creation with the United States Copyright office, there are certain benefits you gain such as the right to file a lawsuit should someone infringe on your work, the right to have your attorneys’ fees paid and possibly statutory damages (in other words, money per infringement owed to you) already outlined in the copyright statute.
5. If I am using the photo (or other copyrighted material) in a non-profit manner and am not making money off of it, then there is no reason for me to seek permission or license.
Not Always. Even though your use might be with a non-profit group or in a way that serves the greater good, it does not mean the concept of Fair Use will always apply to your use. A great example is Sarah McLaughlin singing “In the Arms of the Angels” for the ASPCA encouraging people to adopt pets, or as The Hubs call it “the worst PSA on television.” There is no bright line rule when it comes to what is and is not considered Fair Use. There is no legally established minimum or maximum. All cases are extremely fact specific and decided on a case by case basis. Meaning, maybe your use is fair, but maybe it is not. For more posts on Fair Use visit HERE and HERE.
The factors used to consider whether a use is considered fair are:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion of the work used in relation to the copyrighted work as a whole; and
- the effect of the use on the potential market for the copyrighted work.
If we were to analyze how Johnson used the photos and provided all the facts in the news story are true, the result would be a finding of copyright infringement and not fair use. Factor numbers four and two point towards copyright infringement. Gannett and The Associated Press license out their photos for use as the owners and have an exclusive right to do so; therefore, there is a market and revenue was lost. Newspapers and media groups consider licensing out materials as a line item in their revenue streams. Johnson’s use was exactly as the original work was intended. Factor number one also tips towards copyright infringement, provided the news article is true, because he used the photographs in the way they were intended to be used with a news story. Finally, factor number three also leans towards a finding of copyright infringement because he used the photos as a whole. And, if the article is true even placed a watermark of his name on the photos, leading a casual observer to believe he owns the photos.
As to whether Johnson has a case for libel this outside of the scope of this post. But, if all the facts are true, Gannett and The Associated Press have a GREAT case for copyright infringement. What other myths have you always heard when it comes to copyright law? Take part in the Comments section below and Stay Tuned In!
[P.S. Thanks to one of my readers for this idea a few weeks ago about debunking copyright myths!]
If you liked this post, please share it and click the FREE Subscription button above to get more! Follow and tweet to me on Twitter where I pass along the latest entertainment law, broadcasting and intellectual property news @RyanneDSaucier