In my last column I talked generally about how not to infringe other people’s copyrights. This month, I wanted to dive into a specific question that often confuses people on the copyright infringement front:
Is it copyright infringement if I give credit to the original creator?
The surprising answer is “maybe.”
What many people don’t realize about copyright law is that copyright infringement is what lawyers call a “strict liability” tort; that means you can infringe copyright simply by copying or distributing someone else’s work without permission. Your intent doesn’t matter. So it doesn’t matter if you give credit and/or say nice things about the original creator, or if you weren’t planning to make money from your use (although commercial use is a part of the fair use test which I’ve discussed elsewhere). Strict liability legal wrongs are those where you are liable simply for engaging in the prohibited act (in this case, copying without permission), regardless of your intent.
So why do you see so many works of literature and art where the author or artist does give credit to the original creator? Why would they bother giving credit if it doesn’t help them escape legal liability?
Well, for one thing it’s a nice thing to do professionally and ethically.
More importantly—or at least more legally—giving credit to the original creator is typically a term of a license to use the original work. The original creator may say: “You can use my words/illustration/photograph etc, as long as you give me credit.” The original creator may also ask for payment, either a flat fee or a royalty or a combination, as a term of a license to use their work. But even if they don’t want money, the attribution will be a term of the license.
The license between the original creator and the new creator is the reason why there is no copyright infringement when the original work is re-used by a new author or artist. The license gives legal permission to use the work in the way agreed between the two creators provided that attribution is given. The new creator isn’t relying on fair use at all in this situation, but rather on permission to use the work.
Think back to what copyright law prohibits. You are not permitted to copy/distribute someone else’s work without authorization. The license provides that authorization. That’s why people with a license are not infringing copyright: because they have authorization to use the original creator’s work. The authorization can come with various other obligations attached (like a payment obligation, or a requirement that you attribute the original creator). But it’s the license that excuses the new creator from infringing the original copyright, not the fact that they gave credit to the original creator.
Because those of us reading the new work or viewing the new art out in the wild never SEE the license or evidence of the license—because it’s a private contract between the creator of the original work and the new creator—it’s easy to assume that merely giving credit to the original creator must be a fair use. It’s an easy mistake to make. But giving credit by itself does not excuse copying that would otherwise amount to a copyright infringement. Giving credit is good professional practice, but legally it does not excuse unauthorized copying without some kind of permission from the original creator.
The fair use defense to copyright infringement is not about attribution, but rather about the context in which you used the original work, whether or not you had a commercial profit motive, whether or not you negatively impacted the market for the original work, etc. Fair use is a complicated defense, but generally speaking, it has little to do with giving credit where credit is due. If you have fair use questions, make sure you talk to a copyright expert before relying on the defense!
As always, this column is not intended as formal legal advice, and if you are concerned about infringing someone else’s copyright, you should seek advice from a copyright expert. But hopefully this discussion at least sheds some light on a question that often confuses creators when repurposing other people’s words or art.