With Christmas music, plays, greeting cards, stories, websites, and so many other creative works being generated about and around the season, getting it right when copyright questions arise is important. Unfortunately, there are frequent misconceptions and misunderstandings about the law. So, here HULSEY PC debunks a list of Christmas Copyright Myths that frequently circulate.
We hope that you find our answers educational and helpful.
You can place the copyright symbol on any original piece of work you have created. The normal format would be to include alongside the copyright symbol the year of first publication and the name of the copyright holder, however there are no particular legal requirements regarding this. While it has historically been a requirement in some jurisdictions to include a copyright notice on a work in order to be able to claim copyright over it, the Berne Convention does not allow such restrictions, and so any country signed up to the convention no longer has this requirement. However, in some jurisdictions failure to include such a notice can affect the damages you may be able to claim if anyone infringes your copyright.
A similar situation exists in relation to the phrase “All Rights Reserved”. This phrase was a requirement in order to claim international copyright protection in countries signed up to the 1910 Buenos Aires Convention. However, since all countries signed up to the Buenos Aires Convention are now also signed up to the Berne Convention (which grants automatic copyright) this phrase has become superfluous. The phrase continues to be used frequently but is unlikely to have any legal consequences.
Myth #2: I must file for copyright registration in order to have copyright protection
Reality: Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law.
Myth #3: Mailing my original work to myself establishes copyright protection
Reality: The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.
Myth #4: By changing someone else’s work, I avoid their copyright
Reality: The act of copying or adapting someone else’s work is a restricted act. Any adaptation will be legally regarded as a derived work; so if you simply adapt the work of others, it will still be their work, and they have every right to object you if publish such a work when they have not given you permission to do so. They are also entitled to reclaim any money you make from selling their work.
The only safe option is to create something that is not copied or adapted from the work of others, or seek the permission of the rights owner (you should expect to pay a fee and/or royalties for this).
There is nothing to stop you being inspired by the work of others, but when it comes to your own work, start with a blank sheet and do not try to copy what others have done.
Myth #5: There is only one type of music copyright
Reality: The are a number of potential copyrights associated with any musical work. A sound recording will have a separate copyright to the underlying musical composition. This means that a new recording of an old piece of music will still be protected under copyright, even if copyright has expired in the original music. Other copyrights include the following:
Public Performing Right: The exclusive right of the copyright owner, granted by the U.S. Copyright Law, to authorize the performance or transmission of the work in public.
Public Performance License: BMI issues licenses on behalf of the copyright owner or his agent granting the right to perform the work in, or transmit the work to, the public.
Reproduction Right: The exclusive right of the copyright owner, granted by the Copyright Act, to authorize the reproduction of a musical work as in a record, cassette or CD.
Mechanical License: Harry Fox Agency, Inc. issues licenses on behalf of the copyright owner or his agent, usually to a record company, granting the record company the right to reproduce and distribute a specific composition at an agreed upon fee per unit manufactured and sold.
Synchronization License: Music Publishers issue licenses as copyright owner or his agent, usually to a producer, granting the right to synchronize the musical composition in timed relation with audio-visual images on film or videotape.
Digital Performance Right in Sound Recordings: Sound Exchange along with Record Companies license the exclusive rights on behalf of copyright owners in a sound recording (which is separate from the copyright in the underlying musical works that BMI represents) under U.S. Copyright Law to authorize many digital transmissions (e.g., Internet streaming).
Myth #6: Creative Commons / GPL license are new types of copyrights
Reality: A Creative Commons (CC) license is one of several public copyright licenses that enable the free distribution of an otherwise copyrighted work. A CC license is used when an author wants to give people the right to share, use, and build upon a work that they have created. CC provides an author flexibility (for example, they might choose to allow only non-commercial uses of their own work) and protects the people who use or redistribute an author’s work from concerns of copyright infringement as long as they abide by the conditions that are specified in the license by which the author distributes the work.
CC licensed music is available through several outlets such as SoundCloud, and is available for use in video and music remixing.The CC licenses all grant the “baseline rights”, such as the right to distribute the copyrighted work worldwide for non-commercial purposes, and without modification. The details of each of these licenses depend on the version, and comprises a selection out of four conditions:
Attribution (BY): Licensees may copy, distribute, display and perform the work and make derivative works and remixes based on it only if they give the author or licensor the credits (attribution) in the manner specified by these.
Share-alike (SA): Licensees may distribute derivative works only under a license identical (“not more restrictive”) to the license that governs the original work. Without share-alike, derivative works might be sublicensed with compatible but more restrictive license clauses.
Non-commercial (NC): Licensees may copy, distribute, display, and perform the work and make derivative works and remixes based on it only for non-commercial purposes.
No Derivative Works (ND): Licensees may copy, distribute, display and perform only verbatim copies of the work, not derivative works and remixes based on it.
Myth #7: With copyright, I cannot ever reproduce anything
Reality: No, copyright isn’t an iron-clad lock on what can be published. Indeed, by many arguments, by providing reward to authors, it encourages them to not just allow, but fund the publication and distribution of works so that they reach far more people than they would if they were free or unprotected — and unpromoted. However, it must be remembered that copyright has two main purposes, namely the protection of the author’s right to obtain commercial benefit from valuable work, and more recently the protection of the author’s general right to control how a work is used.
While copyright law makes it technically illegal to reproduce almost any new creative work (other than under fair use) without permission, if the work is unregistered and has no real commercial value, it gets very little protection. The author in this case can sue for an injunction against the publication, actual damages from a violation, and possibly court costs. Actual damages means actual money potentially lost by the author due to publication, plus any money gained by the defendant. But if a work has no commercial value, such as a typical E-mail message or conversational USENET posting, the actual damages will be zero.
Only the most vindictive (and rich) author would sue when no damages are possible, and the courts don’t look kindly on vindictive plaintiffs, unless the defendants are even more vindictive. The author’s right to control what is done with a work, however, has some validity, even if it has no commercial value. If you feel you need to violate a copyright “because you can get away with it because the work has no value” you should ask yourself why you’re doing it. In general, respecting the rights of creators to control their creations is a principle many advocate adhering to.
Myth #8: Anything posted on the Internet/Usenet is public domain
Reality: Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner’s exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150,000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney’s fees incurred by the copyright owner to enforce his or her rights.
Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law.
Since the files distributed over peer-to-peer networks are primarily copyrighted works, there is a risk of liability for downloading material from these networks. To avoid these risks, there are currently many “authorized” services on the Internet that allow consumers to purchase copyrighted works online, whether music, ebooks, or motion pictures. By purchasing works through authorized services, consumers can avoid the risks of infringement liability and can limit their exposure to other potential risks, e.g., viruses, unexpected material, or spyware.
Myth #9: Fair use allows me to copy up to 10% of another’s work
Reality: Fair Use is an exception to copyright infringement and allows a third party to use a copyrighted work under very specific circumstances. Unfortunately, there is no checklist or strict reading of this law, creating challenges for many authors. Since you may not have the counsel of a publisher, you’ll need to read up on this concept and determine if your use would fit the guidelines. Commercial works may have a claim of Fair Use, however as with all Fair Use claims it is a case-by-case determination.
Myth #10: If I don’t make money from the copying, it is permissible
Reality: No, except in specific circumstances permitted under fair dealing/fair use rules, any copying or publication without the consent of the copyright owner is an infringement, and you could face legal action.
If the use has a financial impact on the copyright owner, (i.e. lost sales), then you could also face a claim for damages to reclaim lost revenue and royalties.
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