Copyright tends to be the bane of a writer’s existence because it’s so difficult to understand. Haven’t we all heard stories about how the law that’s supposed to protect our work often fails to do so because of the expense of bringing legal action or uncertainties about whether a defense like fair use applies to someone else’s copying of our work? What about if we want to copy or repurpose aspects of someone else’s work? How do we know if/when we need permission, and do we have to attribute the original creator?
This blog post raises some of the most common challenges and confusions for writers that can arise when you want to use, quote or repurpose someone else’s copyrighted work. Don’t be embarrassed if you’ve faced these confusions yourself. Copyright law is difficult to understand largely because the law itself is an unwieldy attempt to balance the property rights of creators against the need for a free market of information, ideas, and expression. Copyright law is a tough nut to crack, but the following is a list of some of the more common confusions writers face which is hopefully helpful to the readers of the column.
1/ Confusing copyright law and plagiarism. Copyright is about copying and plagiarism is about attribution. If someone copies your work without permission and without attributing it to you, they may have committed both copyright infringement and plagiarism, but in the United States, writers can only bring legal action for copyright infringement. Plagiarism–other than in the case of certain classes of works, mainly in the visual art context–is not legally actionable in the United States.
2/ Confusing “available publicly” with public domain. Yes, it’s true that writers can repurpose (copy, retell etc.) anything in the public domain, but public domain works are only those that are not subject to intellectual property rights, like copyright. If something is simply available to the public, even if it’s available to the public for free on the interwebs, that doesn’t mean it’s automatically in the public domain. For more information on what is in the public domain, the Center for the Study of the Public Domain at Duke University has some great resources. Literary works only fall into the public domain if they were never copyrighted (e.g. because they predate copyright law like the works of William Shakespeare) or if their copyright term has expired (like the works of Charles Dickens). The Center for the Study of the Public Domain explains when works fall into the public domain and includes lists of works that are now in the public domain and free for all to use.
3/ Assuming your use is a “fair use” if you have good intentions. Fair use is one of the most well known defenses to copyright infringement. However, it is also one of the more complicated and misunderstood aspects of copyright law. To figure out if a particular use of someone else’s work is a fair use, American courts are required to apply a “four factor test” set out in the copyright act. This test is supposed to be applied equitably and flexibly to cater for new situations. So, in essence, you don’t ever really know for sure whether a particular use is a fair use unless you go to court and get a ruling in your favor. The result is that it’s usually safer to ask for permission to copy or use someone else’s work in your own than take the risk that it may not be fair use. If permission is not feasible, don’t assume that attributing the work to the copyright holder, or adding a notation that “this is fair use” or “no © infringement intended” on your work will protect you from a copyright infringement action. Simply saying your use is a fair use doesn’t make it so. Permission is always the safest way to go, but where permission is not feasible, fair use can come into play and I’ve written on that elsewhere. Fair use is a challenging topic in its own right and probably the subject of a future column!
4/ Confusing permission with fair use. Many people assume that because they see other authors say things like “this poem reprinted with kind permission of [x]” or “photo credit [x]” this means that saying those things creates a fair use defense. Not so! Those attributions are usually included on borrowed work either as a matter of professional courtesy and/or because the copyright owner has granted permission, and has asked for attribution as a condition of that permission. The permission gives a contractual license to use the work in return for attribution on the work (money may be involved too, depending on the circumstances).
5/ Confusing the Public Domain with a Creative Commons License. It’s actually really difficult as a matter of copyright law for someone to dedicate their work to the public domain. Anyone who says they are doing that is probably really granting some form of open source license to members of the public to use the work however they want—see the previous point about licenses and permissions. A general license, often created using Creative Commons License terms, is legally a form of contractual permission. If a creator has released their work to the public under a general license that does not require attribution, you can do pretty much whatever you want with it. However, if you are dealing with particular forms of licenses of this kind, make sure you know if there are any terms you have to honor, like giving attribution to the original creator. In the world of Creative Commons licenses, the most popular license for authors is the CC-BY license which allows free use but requires attribution of the original source.
Again, copyright law is complex and the above is only a brief sketch of common concerns and misconceptions authors and artists often face. None of this is intended as comprehensive legal advice and you should always consult an attorney, agent, or other expert about any particular situation you might be facing in your professional career. Hopefully, the above gives you some comfort that this law is challenging and there are many gray areas that often confuse people. You are definitely not alone if you’ve faced any of the above situations.