Over the last several years as I have interviewed clients, lectured students, and otherwise engaged in discussions relating to intellectual property, specifically copyrights, I have found that people have more misconceptions about copyright law than most other areas of law.  Although many of these misconceptions, or myths, have their origin in a kernel of truth, or are the reasonable conclusions of a logical mind, they are nonetheless misconceptions and operating under these incorrect beliefs can adversely affect a person’s legal rights.  Below are five of the most common myths.

  • Mailing a copy to yourself.  A common misconception is that a “poor man’s copyright registration” can be obtained by mailing a copy of the creative work to yourself and keeping the unopened, postmarked envelope in a safe place until the moment comes to prove that you are the copyright owner.  This is false.  Although a postmark on an envelope may establish an approximate date that the work was created, envelopes are easily opened and their contents replaced.  In previous years when this practice was more commonplace, would-be copyright holders even were found to have mailed empty envelopes to themselves for the purpose of adding the contents later and claiming copyright ownership against others.  As a result, envelopes mailed to yourself do not have the indicia of reliability that a court or other finder of fact will seek when considering whether or not an envelope mailed to oneself is reliable as evidence.  A “poor man’s copyright registration” neither exists, nor is warranted based on the nominal filing fees associated with registration.
  • Articles without a copyright notice may be freely copied.  This myth has its origins in the fact that, in the United States, a copyright notice was required in order to obtain a copyright on works that were published before January 1, 1978.  This is no longer the case.  The United States has signed the Berne Convention which had the effect of amending United States copyright laws making the use of copyright notices optional on any work published on or after March 1, 1989.  Even without notice, copyright rights now arise as a matter of law the moment that an original work is “fixed in a tangible medium.”  Keep in mind, however, that although copyright rights will still exist where no copyright notice has been applied, a copyright holder enjoys significant additional rights resulting from using a copyright notice.  When a proper copyright notice appears on the published copyrighted work, an infringer will be unable to claim that his infringement was innocent, as the copyright notice acts as constructive notice.
  • “If I change X percent, I won’t infringe.”  Copying someone else’s work is copyright infringement.  Contrary to this commonly held myth, there is no set percentage, nor even any safe percentage by which you can change someone else’s work in order to legally convert it into your own.  The owner of a copyright enjoys rights in “derivative works.”  Rights to derivative works give the copyright holder ownership of both the original work created by the copyright holder, as well as rights in any works that are based on the original.  Although it is possible to review someone else’s work, consider the ideas expressed therein, and create your own work based on those ideas, copying someone else’s work and changing even a considerable percentage of the original work still carries with it a significant risk of infringement.
  • “I have a copyright on my ideas.”  As stated earlier, copyright attaches to an original work of authorship fixed in a tangible medium.  An idea, without more, does not constitute an original work of authorship.  The purpose of copyright is found in Article 1, section 8, clause 8 of the United States Constitution which provides that Congress shall have the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  An idea is nothing more than an abstract concept.  In order to fulfill the constitutional purpose of promoting science and useful arts and qualify for copyright protection, ideas must be distilled into original expressions.  (Likewise, ideas for certain inventions are not subject to patent law until they are “reduced to practice” or otherwise described in such a manner such that others can practice the invention.)  As a result of what is referred to as “the idea expression dichotomy” many authors may have the same idea, write about them in their own unique ways, and each may own a copyright in their original expression of the same idea.
  • Things posted to the internet are committed to the public domain.  Social media sites, Usenet, use groups, and other public internet-based forums have led to a wide-spread misconception that articles and other expressions posted to the internet are placed in the public domain.  This is incorrect.  A copyrighted work is not placed into the public domain until the copyright expires.  Typically a copyright will not expire until many years after the author of the work has died.  Public display on the internet of an author’s original work has no impact on an author’s ownership rights in the copyrighted work.  Although it may be easy to copy works off of the internet, copying still constitutes unlawful copyright infringement.