“Is this copyright infringement?”
This is a question we hear in our copyrighting division more often than any other. I believe this is due to two reasons: (1) Copyright law has not changed significantly for over a decade, while technology certainly has changed, and (2) prevailing wisdom among your average internet user seems to be based almost entirely on hearsay.Now, I’m not an intellectual property lawyer; I just file copyrights. But the US Copyright Office has a heck of a lot of publications, and since copyright infringement examples are so often misunderstood, for clarity’s sake I thought we could all benefit from asking a few questions and taking a closer look.
First, a brief mention of Fair Use, a condition under which using someone else’s material without permission is not considered copyright infringement—photocopying an article for educational purposes, for example. The following determinations may not be accurate in cases where legitimate Fair Use is involved. (Learn more with the US Copyright Office’s factsheet on Fair Use.)
Now, let’s look at a few examples of what under most circumstances would probably be considered copyright infringement.
1. Using someone else’s material on YouTube without permissionThere’s a reason you can’t make YouTube partner with improperly posted music and video—it’s usually copyright infringement, which is expressly forbidden by YouTube’s terms of service.
- Uploading NFL highlights
- Using a popular song as background to your own video
- Posting stills from TV or movies (in cases inconsistent with parody or commentary, which is generally considered Fair Use)
Why are these considered copyright infringement? For clarification, let’s turn to the US Copyright Office’s “Copyright Basics” circular.
The 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
- reproduce the work in copies or phonorecords
- prepare derivative works based upon the work
- distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio visual works
- display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other
- audiovisual work
- perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission
In other words: sharing, distributing, or otherwise using someone’s copyrighted material in any way other than your own personal use can be considered copyright infringement. And if you’re using pictures, videos, or songs that you didn’t create, it’s likely they’re protected by a copyright.
One interesting, if somewhat disheartening, fact to point out is that it’s a lot easier for YouTube to take down your video in response to a copyright infringement claim than it is for you to prove Fair Use—especially given that Fair Use is not a hard and fast rule.
2. Posting a picture from Google ImagesThe Internet has changed the world of intellectual property law irrevocably. However, this is not to say that intellectual property law has kept up with the times. Far from it.
The ease with which you might casually infringe on someone’s copyright makes policing infringement a rapidly ballooning problem. Opinions differ on how to deal with this problem—but as it stands today, it is in most cases considered copyright infringement to post pictures you do not have permission to post, according to the above excerpt from the US Copyright Office.
Of course, the pictures may be out of copyright protection, or they might have a Creative Commons license. But your chances of finding material you can actually use and be certain you are not infringing are not very good if you’re just browsing Google Images.
(Remember that a copyright symbol is not required in order to claim rights to one’s own material; if it was created after 1924 and it was not specifically dedicated to the public domain, it is overwhelmingly likely someone owns it.)
3. Publishing a translation of someone’s foreign workIn copyright law, a “derivative work” is one that is derived from another work or incorporates elements of the original work (think movie sequels, paintings of photographs, and so on).
Since a translation is a derivative work, just as in the other examples, if an original foreign work is still under copyright protection, you would need to obtain permission from the original copyright owner in order to publish a translation.
How do we know that a translation is a derivative work? Here’s what the USCO says about the issue in their “Copyright Registrations for Derivative Works” circular:
A derivative work is a work based on or derived from one or more already existing works. Also known as a “new version,” a derivative work is copyrightable if it includes what copyright law calls an “original work of authorship.
A translation is practically the definition of “derivative work”—it couldn’t possibly exist without the original material it’s based on. In fact, the USCO’s circular goes on to list “a translation of a book” as a specific example of a derivative work.
It’s clear that unless the original book is out of copyright protection and in the public domain, publishing a translation without permission is copyright infringement.
[Recommended Reading: “Copyright Basics: A Beginner’s Guide“]