With the global nature of the Internet fostering shared information and shared copyrighted materials, it’s no surprise that copyright infringement is not always clearly understood. And if you don’t understand copyrights, it’s likely that you could be infringing on someone’s rights without even knowing it.
Let’s take a look at four common excuses for copyright infringement that have been widely used and relied on, but fall short of the mark.
1. “I do not claim to own this material.”
This is all well and good—but just because you aren’t telling people you own something doesn’t mean you’re not damaging the author’s potential in other ways (e.g., affecting legitimate album sales by making an unathorized digital copy widely available for free).
Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to . . . reproduce the work in copies . . . distribute copies or phonorecords of the work to the public . . . display [or] perform the work publicly.
—“Basic Copyrights,” USCO circular
2. “I’m just putting my own lyrics over someone else’s beats; I’m not using the whole song.”
This is a common misperception, especially in hip-hop; the misconception seems to be that it is only the words themselves that are copyrighted, and not any associated instrumentation.
However, someone created those beats, and isolating them from the rest of the song does not make them any less copyright protected.
Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to . . . prepare derivative works based upon the work.
—(“Basic Copyrights,” USCO circular)
A derivative work is a work based on or derived from one or more already existing works.
—“Copyright Registration for Derivative Works,”
3. “Other people are posting copyrighted material, so I can too.”
Don’t worry, I’ll spare you the jumping-off-a-cliff spiel and cut right to how people are getting away with posting forbidden material. Let’s look at YouTube as an example.
At any given time, there’s a great deal of copyrighted material on YouTube. There are two things that could be happening here. One: the rightful owners might not be aware of the infringement or just haven’t had it taken down yet. Two: the rightful owners may attempt to monetize the video and try to reap at least some benefit from the unauthorized use.
Here’s a great example of how this works, as explained on Click&Inc’s Business and Intellectual Property Blog:
Remember the wildly popular JK Wedding Entrance Dance, where the bridal party rocks out to Chris Brown on the way into the ceremony? Sean Cole of Marketplace Money spoke to . . . Jive Label Group, who confirmed that, with the assistance of a click-through ad placed on the video, sales for Chris Brown’s single skyrocketed from 4-5,000 per week to around 50,000 per week.
—”Why Is There So Much Copyright Material On YouTube?,”
4. “I gave the original author proper credit.”
A disclaimer that someone else is the author doesn’t make distributing the work acceptable. Not only that, but even if “I didn’t realize it was copyright infringement” were a valid claim, you wouldn’t be able to use it here, because you’re straight up declaring that you know it’s someone else’s material, and you’re distributing it anyway!
There’s another implication here, though, one that can have a direct negative impact to the artist. As explained by one court:
Far from there being and exculpatory virtue in [crediting the author when using copyrighted material without permission], it would tend rather to convey to the reading public the false impression that authority . . . had been duly secured by the offending publisher.
—Reprinted in “Copyright Law Revision,”
It is up to the creator him- or herself to determine where they would like their work reprinted so the artists is not assumed to be endorsing the person or company that reprinted it.
So when can I use someone else’s work?
The safe answer: when you obtain permission.
The law pertaining to fair use is complicated, and fair use cases are always determined on a one-on-one basis with the courts. There are a slew of intellectual property lawyers out there, and an ever-growing pile of copyright infringement cases just waiting for a court to define fair use for their situation.
[Suggested Reading: "Fair Use and Copyright Infringement"]
There are a few specified activities that have been consistently found to be fair use: scholarly purposes, parodies, critiques, and reporting and journalism, to name a few. But to be safe, it’s generally best to obtain permission before using copyrighted material that isn’t yours.
What excuses have you heard used to justify copyright infringement? Let us know in the comments!