Ten Copyright Myths That Can Hurt You
1. “You don’t have to put copyright notices on your work anymore.”
This myth arose because of the amendments to the Copyright law after the US became a member of the Berne Convention, the international copyright treaty. In Berne countries, copyright notices are not required. When a country becomes a member of the Berne Convention, it may not require notices as a condition of copyright ownership, and as of 1992, the US does not either. HOWEVER, this does not mean that you should leave copyright notices off your work. If you do, it will not damage your claim to your copyright or allow it to fall into the public domain. But, it will allow an infringer to claim that he or she was an innocent infringer and eliminate any damages you may have as a result of the infringement.
2. “If a client hires me to do design work it is automatically work-for-hire”
Prior to 1991, freelancers had a difficult time showing that work that they were hired to do belonged to them. There was a presumption that freelance work was mostly work-for-hire, which means the copyright is owned by the employer. In 1991, however, the Supreme Court in the Feist case changed that presumption, and now freelance work is presumed NOT to be work-for-hire, unless there is an agreement in writing which says that it is.
3. “A Client who buys design work from me can do whatever she wants with it”
As the creator of a design or artwork or photography, you own the copyright in that work unless you transfer it in writing. That means YOU control the right the reproduce it, to change it and make new works out of it, to use it in a different media form—not the client. Clients often believe that buying “work” means buying “rights”. It doesn’t.
4. “All I have to do to protect my copyright rights is mail myself a copy of my work”
I don’t go anywhere where someone doesn’t tell me, “I don’t have to worry about registering my copyright, I mailed myself a copy”. Mailing yourself a copy of your work does not protect your copyright, it does not take the place of registration and it should not give you piece of mind. It does nothing for you except allow you to prove the date that it was mailed—which is not a very useful piece of evidence. And it costs 41¢. Don’t do it. Register your copyright on a VA form available at copyright.gov.
5. “Everything on the Internet is public domain”
The issue of how to protect copyrights in cyperspace is a fascinating and difficult one. But it is not true that you can freely use anything you find online. The cases have now made it clear that the opposite is true. The courts have consistently held that even though it’s easier to copy things online, if the copying is unauthorized it is still copying, and still copyright infringement.
6. “If I change someone’s design just a little but, I can use it with no problem”
If you want to copy someone else’s work, you’d better change it a lot if you want to avoid copyright problems. The standard for determining whether something constitutes infringement is whether the copy is substantially similar to the original. If someone’s design is in blue and you change it to orange, or if a figure is on the right and you change it to the left, it is still likely to be found to be substantially similar and constitute infringement.
7. “A Copyright license must be in writing”
An exclusive license must be in writing. But, a non-exclusive license can be transferred orally.
8. “The client automatically owns the digital files”
The client only owns the files if you agree to sell or transfer them to him. What he owns is the right to use what is in the files for a limited, specified purpose. If he wants the files and the rights to make changes to it, the price should be higher.
9. “You don’t need permission to use artwork you have created in your own portfolio”
In the past, there was some consensus that portfolio use was fair use of the work. But that is no longer true. If you are an employee, you need permission from your employer to use your own work in a portfolio. If you transferred all rights to a client, you need their permission to use your work in a portfolio.
10. “If someone copies my work, my damages might be so low that it is not worth doing anything about”
The copyright law has built into it a solution to the problem of minimal damages, or damages that are difficult to prove. They are called statutory damages. These are damages that you do not have to prove, which the law says you are entitled to if you prove copyright infringement. They range from $750-$40,000 per infringement and they are available if you register your copyright within three months of publication—or making it public. While copyright litigation is long, expensive and frustrating, and not to be undertaken lightly, very often it is worth it.
This post was authored by NoD staff. Notes on Design is a design industry blog sponsored by Sessions College for Professional Design.