I'll say it once and I'll say it again. Getting legal advice from any random person that is not an attorney is not the route that you want to go. I'm sure every attorney reading this post will agree. What may seem like a simple answer may be an intricately involved legal analysis that will produce the best results for the facts as you, the client, present them. So because you can get random advice from any and everyone, I'm going to discuss some myths regarding copyright registration.
You obtain a copyright registration; your work is not copyrighted.
I know that may seem like symantics, however, there is a difference. A work that is registered with the U.S. Copyright Office is different from having rights to your copyright. Here's why.
A work that meets the criteria for copyright registration, yet has not been registered continues to have protection with the courts. If someone uses your work without your permission, you can sue them in court, however, your only remedy is an injunction. Basically, the court will tell and require the offending party to stop using your work without your permission. When your work is registered with the U.S. Copyright Office, you are eligible for an injunction and damages, usually in the form of monetary payment. So even though your work is not registered, you are protected from the illegal use of your work. Of course you want the most amount of damages possible for the harm done, so registration is best. If, however, the work is not registered at the time of the harm done, you can obtain some redress by registering your work and then filing suit.
Anything can be registered with the U.S. Copyright Office.
Just because you fill out an application for registration does not mean that the application will be approved. There are attorney reviewers that follow the same analysis that your attorney will follow to determine if your work can be registered. The work must be original under the legal standard which requires independent creation and a minimal degree of creativity. The work must also be in a fixed, tangible medium of expression. Ideas, even those that are spoken aloud, do not meet this standard.
Even with what seems to be a broad range of what can be registered, you'd be surprised to see the types of works that were denied registration even with attorneys completing the application. Some examples include the Adidas three bars logo,
the 4Imprint logo, the Academy of Motion Picture Arts and Sciences logo, the ReMax logo,
and the Nikon brand logo. So if your attorney does not obtain registration with the U.S. Copyright Office, that does not make them a bad attorney. It just means that your original idea was not original and creative enough to meet the U.S. Copyright Offices standards. See my previous post regarding copyrights for other works that cannot be registered.
If you cannot obtain copyright registration, you can't get trademark registration either.
Not true. Some works of art that are original to your brand can be registered with the USPTO even if the U.S. Copyright Office denied registration. This is because a copyright lasts for the life of the owner plus 70 years. A trademark registration is valid for about ten years. The U.S. Copyright Office determines that it is better to deny a copyright registration and you attempt a trademark registration because of the monopoly that you would have for that mark for such a long time compared to that of a trademark registration. So even if the copyright application is not approved, if it meets the requirements for a trademark registration, you can attempt that route.
You don't need permission to use the registered work if you only use a small amount.
This myth will definitely get you in trouble. There are countless music copyright cases where an artist used a snippet of a song or composition and they were found guilty of copyright infringement. One case that is in pop culture is the Chuck Berry copyright case. If you have ever seen the movie "Cadillac Records", Mos Def, the hip hop artist turned actor, who plays Chuck Berry points out that an up and coming band has taken one of his songs and used them note for note. In real life, it was The Beach Boys who used his song "Sweet Little Sixteen" to create "Surfin' USA".
Some recent cases involving music copyright infringement include the Ed Sheeran case in which he was accused of using Marvin Gaye's works without permission and Robin Thicke's "Blurred Lines" song was adjudicated to have infringed on Marvin Gaye's "Got To Give It Up".
There is a case out now where the owners of rights to Bruno Mars' "When I Was Your Man" is suing Miley Cyrus for her song "Flowers". We are in the age of remixing works from previous generations, so more cases may be filed if permission is not granted prior to use.
If I am only using the work for education purposes, I can still use the work.
If you are wondering what you can do to prevent infringement, here are some of the defenses to copyright infringement: fair use, the work was not in a fixed expression, and original and independent creation.
In my LL.M. program, the Acuff-Rose case was used to illustrate the fair use concept to us. This case involved the Pretty Woman song that Luke Campbell remixed to create his own version of Pretty Woman. "Oh, Pretty Woman" by Roy Orbison is the song that you hear in the movie "Pretty Woman".
When the record company that owned the original song realized that 2 Live Crew had published their own version of Pretty Woman, they sued Luke Campbell of 2 Live Crew. The 6th Circuit determined that Luke Campbell's use of the song was fair use in that they were parodying the original song. (Think Weird Al Yankovich and all the songs that he has produced that are parodies of original works.) Thus, Luke Campbell won his legal battle for the use of the work.
There are also times where you will have the same original idea as someone else. It happens. If you are accused of copyright infringement and can prove that you were not influenced by another author or creator in creating the work, your defense will stand against a copyright infringement accusation.
Also, if someone spoke an idea and did not record themselves at the time of speaking the idea and did not actually place the idea in a fixed, tangible form, there is no violation because the idea was not of the type where it could be protected by copyright protection.
I'm sure there are other myths regarding copyrights out there. If you hear something regarding copyrights, trademarks, or any other legal concept, feel free to reach out to an attorney for assistance in determining whether the advice is valid and whether it even applies to you case. You may have greater protection than you think.
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