Sara: Welcome to the podcast! Today we have Gordon Speagle with us. Hi, Gordon!
Gordon: Hi, Sara! How are you doing today?
Sara: I’m doing great. Today we’re going to myth-bust. Specifically we’re going to bust some copyright myths. Are you ready for that, Gordon?
Gordon: I’m ready to bust away, Sara.
Sara: Great. Well, can you tell our listening public a little bit about yourself?
Gordon: My name is Gordon Speagle. I’m an academic advisor at the College of Engineering at the University of Illinois, and I stay away from revolving doors.
Sara: That’s a good idea. Now, do you know anything about copyright?
Gordon: I know you can run afoul with copyright rules if you’re not paying attention.
Sara: Okay, so you basically know nothing about copyright. This is what we’re trying to communicate. In this game, I tried to recruit someone who did not know too much about copyright in order to see what the general public might think so we can myth bust. How does that sound?
Gordon: Sounds great. You found a wonderful willing and ignorant individual to have on the podcast.
Sara: Perfect! So this game is called two copyright truths and a lie. I’m going to read three statements for you, and you need to decide which is the lie. Pretty simple, right?
Gordon: It is.
Sara: Well, let’s practice on something totally unrelated to copyright. Which one is the lie? The sky is blue. The night sky is rainbow-colored. The grass is green.
Gordon: Hm…cue the jeopardy music.
Sara: This one’s tricky.
Gordon: As much as I’d like it to be true, I’m going to go with the second option is the one that is not true.
Sara: Correct. So now that you know how to play, let’s try some copyright related statements. First, if I scribble on a piece of paper, that’s generally enough to create a copyright. Second, anything that is on the unrestricted World Wide Web is free to use because the owner has waived copyright. Or three, I have the option to put a copyright symbol on my work if I want to.
Gordon: Hm…I would say that number one is going to be false.
Sara: This is why I love you, Gordon, because you’re completely incorrect. But, but this is a common copyright myth. Actually copyright is really easy to obtain. All you need to do is fix something, which means write it down or record it, that is minimally creative. And minimally creative is at a really low bar, so some of your child’s artwork likely works, and I don’t mean scribbling by just creating a few lines, but anything resembling artwork is copyrightable. The thing that most people think is true is that anything on the unrestricted World Wide Web is free to use because the owner has waived copyright, but that’s just not true. And I do want to bust that myth. Even if it doesn’t look like it’s copyright protected, even if it’s easy to access and it’s open to access, it doesn’t mean that they have somehow waived copyright protection. So we’ll get more into the weeds on that one later. Let’s go to another round of “do you know the copyright myth.” So first, I have to put a copyright symbol on my work to have a copyright. Second, everything before 1923 that was published in the United States is in the public domain and free to use. Or third, another important thing to consider when assessing copyright is licensing.
Gordon: Hm, let’s see. I’m going to go with number two, I believe is false.
Sara: Again, my favorite person in the world is Gordon Speagle right now because that’s wrong actually. But it’s really good to know this, right? Because public domain works are things where copyright has expired, and anything before 1923, if it was published in the United States, is free to use, unless under copyright terms. That’s a wonderful thing for people to understand that they can even sell things, like images and things like that, from pre-1923. The common myth here is that folks think that they have to put a copyright symbol on their work in order to have a protected copyright, and that is not true. You do not have to do any kind of formality anymore. That actually was abolished in 1989 when we joined the Berne Convention. And so we have a copyright on that scribbled piece of artwork on the paper, even if I don’t put the copyright symbol on it. All right, let’s go to another round.
Gordon: Sara, you’re blowing my mind this afternoon.
Sara: I’m so glad! Hopefully our listeners at home are also being blown away right now. All right, number one, I have to register my work with the copyright office to sue someone for infringing my copyright. Number two, if I record a song, I should mail myself a copy of the CD or other recording via registered mail to have a date stamp of creation when I need to enforce the copyright. Or three, even email messages can create copyrighted works.
Gordon: Hm…I’m going to say number two. I would say that seems to be a myth.
Sara: That is right. You finally got one. Congratulations! We threw you a bone here! So, you don’t have to register your work in order to have a copyright. As we noted earlier, you don’t have formalities. But if you want to sue someone in court, you do have to register it. So that’s the sort of catch-22. You have to register it before you sue anybody. And this whole myth of mailing yourself—I guess this is common in the music industry and something people say recently. It’s not something you can’t do, but you don’t have to do that. In fact, a lot of times people are creating digital works now, and they’re date stamped down to the second. So you don’t need anything further than that to prove when you created the work, right? Because copyright attaches from the time of creation. And so, a lot of folks think they need to do this. They’re wasting their money on that certified mail, but if it makes them feel good, let them do it. All right, another round. One, there is a general copyright exception for teaching. Two, fair use is a right. Or three, if someone emails me asking me to take something off of my website, they first have to do a fair use assessment to make sure my use isn’t a fair use.
Gordon: Hm, I want to say that number one is false.
Sara: You are getting good at this, Gordon! You’re on a roll here. That’s right. You can use fair use for teaching, and there is an exception for teaching, but it is not a general, catch-all, broad exception. It is more specific and limited, and it’s specifically for face-to-face teaching in a college or other designated area for teaching, like an elementary school classroom or a college classroom with students enrolled in the course. At that point, there’s a fairly broad copyright exception, but it’s limited to those spaces. All right, so you’re getting better. Fair use is a right; it’s also an exception to copyright protections. And the third one, I thought I was trying to trick you there, but there’s some case law on that. If you send someone a notice telling them to take something off their website, there’s a famous dancing baby case called Lenz where this baby was dancing on YouTube to Prince music, and Prince directed his folks to go after everyone who was using his music without permission. The woman said no, I’m not taking this video off of YouTube because it’s fair use, and the court said yeah, they should have done that fair use assessment before they sent that takedown notice. So that’s a really interesting thing, and you got that round right! And that was a tricky one, so you should pat yourself on the back here. All right, so here’s another round. We’ve only got two rounds to go, I’m just letting you know because I know this is hurting your brain. One, John and Sue co-author a work. Now Sue tells me that I can publish the work on my website, so I put it on my website because I legally can. Two, I want to show a movie in an after-school club. I play a copy of a DVD that I own, and that is legal. Or three, I want to show a movie during class. I play a DVD I own, and that is legal.
Gordon: I’m going to say that number two is false.
Sara: You’re myth busting all over the place here. That’s right because we just talked about the face-to-face teaching exception. It doesn’t apply to after school clubs and things like that. It applies when you’re showing a movie during class with students, so number three is correct. Number one, the default rule under copyright is that joint owners own 100% of the work. Now they have to split any fees halfway, but if one of them gives you the permission to put it up, you’re totally welcome and within your rights to do that even without seeking permission from the second author. Now, I would note that maybe ethically, and if you’re doing business with these folks later, you may want to consider asking the other author, but legally you don’t have to. All right, this is the final round. This is going to determine if you win or lose, because I think you might be even right now.
Gordon: I think I am.
Sara: I think you’re even, so the pressure is on whether you’re going to win at myth-busting or not. Number one, when making e-reserve copies of a copyright protected book, you can only copy ten percent of the book without paying a fee. Number two, the more transformative the use you intend to make of the copyright protected work, the more likely it is a fair use. And number three, if you’re getting money from your use of a copyright protected work, it is less likely to be considered a fair use.
Gordon: I would say that number three is false.
Sara: Oh you were so, so close. You lose at myth-busting, but you win at helping me educate the public, so we’re all winners today. The first one is actually incorrect because that is a common myth. It was grounded in the Circular 21 guidelines from the US Copyright Office, so the copyright office is to blame here. I guess I’m going to make some enemies right now, but in those guidelines they state —they do say they’re not hard and fast rules, but unfortunately some people have interpreted them as such, and when they’re taken as such, that’s just not right. Fair use is very flexible and is not based on any particular percentage, and courts have said that. Now, if you’re getting money from your use of a copyright protected work, it is less likely to be considered a fair use, but it doesn’t mean it isn’t one, right? Because we know from Google books for instance, they’re a money-making entity, and they put those books that are copyright protected online for snippet viewing, and the court has held that that is a fair use. iI’s just less likely. And of course, we do all agree that the more transformative your use, the more likely it is a fair use because you are creating something new, and you are using the work in a way that’s different from the way it was intended. So you’re usually not trying to supplant the market value for the original work. Well, this was a pleasure. I hope that the audience learned something today. Gordon sounds like he did.
Gordon: Sara, this has been an enlightening and a stimulating afternoon.
Sara: Well I’m so glad and really appreciate you coming out, and if I ever find any folks with some engineering based questions, I will send them your way.
Gordon: Send them my way.
Sara: All right, thanks to everyone for listening.
Music credit: http://www.bensound.com/royalty-free-music