November 18, 2021
What do mermaids, dragons, unicorns and copyright law all have in common?
Perhaps not that much other than them all being man-made.
But while fairy tale creatures only exist in story books and our imagination, copyright law is very real.
However, there are many myths about copyright still floating around.
For professionals creating a brand presence and for content users operating online, believing these misconceptions could turn out to be costly:
At best, believing them helps keep the myths alive - which quite honestly isn’t very helpful in our digital content-sharing, content-using world.
At worst: not getting the facts right could lead to infringing on someone’s copyright - and that can get expensive.
Overall, copyright infringement is a shame - both for the creator who has worked hard to create original content and for the person who has infringed.
But here’s the deal: many people who receive a copyright infringement claim aren’t even aware that they've done anything wrong.
So a great deal of people either lack information on copyright law or are unfortunately guided by misinformation. Judging by the things we hear from counterparties in copyright infringement cases, we can confidently confirm the latter.
To set the facts straight, we have debunked 14 common copyright myths to help you stay well-informed and avoid inadvertently infringing on someone’s copyright.
Get ready for some truth bombs!
Many still believe that you have to use the little ©-symbol in order to have copyright.
The truth is that copyright protection exists by default when a creative work is brought into existence.
In other words: when an author writes a book or a photographer takes a photo, their copyright to their work is created at that same moment.
Just like you have certain rights to physical property that you own, you also have rights to the intangible, (i.e. intellectual) property that you own.
However, for countries respecting the Berne Convention (an international agreement governing copyright), using the symbol has never been necessary for having copyright.
Despite this, many people still associate copyright with the circled c which could be attributed to its use in the US where it was a requirement to receive copyright protection up until 1989 when they also joined the Berne Convention. Also, many recognize the symbol on branded products of US origin, which might feed into the idea as well.
Despite the copyright symbol not being a requirement to have your work copyrighted, it is true that adding the little c could possibly act to warn others of the copyright (although it's naturally there, anyway). But by adding it, you might just be reinforcing the myth - and since we’re all about shedding light on what copyright is (and isn’t), this is not our recommendation.
For more on copyright, see these 5 basic copyright terms you need to know.
Nope. As you can probably gather from the copyright-symbol myth, you don’t need to register in order to get copyright protection.
In fact, no formal action is required to get copyright: the rules of copyright exist automatically when an original work is brought into existence.
“You must get that idea copyrighted!”
“Don’t forget to get copyright”
Maybe you’ve heard similar phrases in conversation about your brilliant, never-thought-of-before idea and you and your friends quickly agree that such ingenuity must be protected before anyone else gets the same thought.
A better piece of advice would be: execute your idea.
Because here’s the thing: copyright only applies to actual recorded work.
As long as something is just a good idea it is something that exists only in the mind, i.e. in a medium that copyright doesn’t recognize and therefore cannot protect.
Only when an idea is expressed in a tangible way will it be protected and the protection relates to how the idea is expressed - not the idea itself.
For example, say you create a movie and someone creates one with a similar plot, then this wouldn't count as copyright infringement since no copying has taken place. However, if their expression of the plot is strikingly similar to yours it would be a different story.
The expression of the plot, i.e. the idea, would count as the creative work behind the movie. And since copyright entails protecting your rights to copy and make money off your work, them copying your expression would be copyright infringement.
Within certain areas e.g. with inventions it may be possible to apply for a patent.
This copyright myth is a big culprit behind a large percentage of copyright infringements.
We’ve said it before, and we’ll say it again (and again, until it sticks!):
Google Images is not a free-image buffet!
Finding an image on Google or anywhere else on the internet does not make it free.
Yes, it appeared quickly and easily through a search - but no image appears magically or out of nowhere. The ease of use that the internet gives us, making high-quality content available with just a click, does not change the reality behind it:
producing original content is hard work.
And creating content requires someone to create it. And that someone has copyrights to their work.
Exceptions to this rule are so-called public domain works, i.e. works where the copyright has expired or Creative Commons license images.
That being said, there is nothing wrong with using the internet as a vehicle to locate content - after all, this is where creative work is usually showcased and also information-sharing is kind of the point of the internet, right?
Just make sure that you a) identify the copyright owner and b) ask for permission to use the work. This can sometimes prove to be a tricky task since much work has been redistributed across the internet and far from its original source (perhaps also without permission!).
So unless you’re 100% sure who owns the copyright and whether you have the green light: do not use it!
Owning your copy of a work is not the same as owning the copyright to it.
Yes, if someone gives you a book, it then becomes your book - and if someone takes it from you, they are stealing your property.
Also, you can technically do with your physical book copy as you please, e.g. use it as a door stopper, as a placemat or whatever you choose to in the privacy of your own home (even making a copy of your favourite page and posting it on your bedroom room is okay, as long as it stays there, i.e. private use).
But you cannot do with the content (i.e. the actual work) of the book as you please.
So although the ownership of the physical property (here: the book) is transferred to you through delivery, the intellectual property rights (here: the copyright) are not.
This one is kind of interesting.
When dealing with copyright infringements, we sometimes encounter cases where a counterparty has used an image of themselves without permission or license.
When we inform them of the infringement and they receive an opening letter from us, they dismiss it with the fact that they are in the photo; so therefore they can use it. Right?
You being in the photo does not make you the copyright holder, i.e. it does not allow you to freely use and copy the work without permission. Instead, it is the individual that took the photo (or the company that he/she represents) who owns the copyright, since they are the ones that created the work.
Despite it being flawed logic, we can understand why people might think this way.
Say you arrange that a photographer takes a portrait photo of you. This happens upon your request and thereby, your consent (because honestly, a portrait photo doesn’t just randomly happen). Without doing your research into copyright, this could create the impression that the locus of control regarding the photo is in your seat, and that you are the one that must give others consent to use it.
Nonetheless, the general rules of copyright still apply - also when you are the star of the photo!
One thing is making a photocopy of a photograph that someone else has taken (it seems quite clear that you’re copying someone’s work i.e. potentially infringing copyright).
But what about if you take a screenshot of an image with your phone or other device - who owns the copyright then? You who took the shot? Or the photographer whose photo you captured?
Many believe that by taking a screenshot, you’re taking a photo, and since you took it, then you own the copyright.
Taking a screenshot counts as making a copy of a work. So, unless you created the work yourself, the copyright belongs to the individual who created the work.
Whether taking a screenshot of someone else’s original work counts as copyright infringement then depends on whether you’re using the screenshot privately or publicly or - in the case of using work that requires a license - the conditions of the license.
We often hear counterparties justifying their copyright-infringing behavior with this one or by them having seen the same photo on different sites.
While this may well be true, it doesn’t change the fact that an infringement has been made.
In fact, it probably means that several infringements have been made (and in this case, that each one should be contacted with an opening letter from us!).
But other peoples’ wrongdoings will never make yours right.
That being said, the actions of others might give off the impression that using content straight from the internet is okay to do, thereby normalizing copyright infringing behavior and ultimately; adding to the myth that the photo you found on Google Images is free to use.
We understand that this doesn’t exactly make navigating the rules of copyright law any less hard, and while it’s easy to understand how this logic happens, infringement is infringement - and it’s your responsibility to avoid this as a content user.
Some counterparties believe that if someone else sent them an image and it turns out that they themselves have breached the copyright, then they cannot be held responsible.
However, just because someone sent you the content does not mean that you can avoid a copyright infringement claim.
Regardless of whether it was you or someone else that found the image, the responsibility to make sure that you have permission to use it, lies with you.
Therefore: if you receive a photo from someone you must
a) find out who the copyright owner is
b) ask for permission
This means that, even if the person who sent you the photo is the copyright owner, you must still ask them if using the photo is okay. Them sending you their photo is not the same as transferring the copyright to you!
If you have copied or published someone else’s work without their permission or a license, you are per definition infringing on their copyright.
Just say you find a nice photo on the internet and decide to use it on your blog. It doesn’t matter whether you have 0 daily visitors or 12000, whether the photo helps you sell a product or generate money from ads. The point is that you have used someone else’s original work without asking them and that you’ve published it in a public space.
Had you instead printed out that same very photo and stuck it onto your bedroom wall (or any other wall in the privacy of your own home), you would not be infringing on copyright since this would be private use.
We can quickly agree that profiting off the product of someone else’s hard labour is wrong.
This is one of the reasons that copyright even exists; to protect artists and their chances of creating a livelihood off their creative work. This is copyright protecting the content creator’s economic rights - but the economic rights also include the right to control the work, make it available to the public as well as make copies of it.
So with your seemingly innocent use of someone else’s photo on your less frequented website, you are in reality violating the photographer’s economic rights - despite your economy not benefitting from it!
That's why the “am I earning money vs. not earning money?”-logic regarding your use of someone’s work without permission is not actually a question of infringement or non-infringement; rather it is a question of “am I making an infringement or an even worse infringement?”.
What's more, the creator has moral rights to their work which involves the right for the work to be respected and the right to be named for their work. So violating the creator's right to copy and profit off their work is only part of the problem when you use their content without asking.
Although watermarked photos can be found many places around the internet (e.g. you may have come across stock photos with “Shutterstock” or “Getty Images” on them), adding a watermark to an image is not a requirement for copyright protection.
As you know by now, copyright exists automatically when a work is created. Whether you choose to watermark your photos is up to you, and watermarks do have their benefits.
By adding a watermark to your image, you can potentially ward off copyright infringers by making it clear that the image is copyrighted. This could also create awareness that copyright exists (to those who don’t already know it) as well as act as a reminder to those who do.
However, on the flip side, adding a watermark to your photo to signal that you have copyright might just feed into the myth of watermarks being a requirement for protection - rather than creating awareness of how copyright actually works.
Therefore, whether you add a watermark or not, just remember that copyright protection exists simply because the photo exists!
Just because an image is published in a news paper or in a magazine does not mean that the rules of copyright suddenly don’t count.
The principle is the same as always: someone took that photo and they own the right to control the work, make copies and publish it.
It doesn’t matter whether the photographer made a fortune off the photo, some pocket change or nothing at all - with an original work comes copyright, and posting it without permission is infringement!
Please don’t. Just don’t.
This one honestly sounds like the excuse you’d make if you had run out of better excuses. And let's be real, we all know that this probably wasn't the actual intention behind using the photo, for people saying this.
Although a big part of creatives making a livelihood for themselves is making the world aware of their work, there is a big difference between spreading the word to recommend someone’s creative work and using it without permission.
Whether the creator and copyright owner wants the “free advertising” is for them to decide, not you. And even if they do, you would still need their permission to use their work. Besides, it is not for you to rationalize whether your illegal use of their work hurts them or not - let copyright law and the creator themself determine that.
Unfortunately, it does.
This is a big one. When we deal with copyright infringement cases, many counterparties aren’t even aware that they are infringing on someone’s copyright. They just accessed an image or text that they thought looked nice and would like to use, no deeper thoughts behind it.
But although we understand that it sucks to get a copyright infringement claim when you haven’t had any ill intentions, lack of awareness of copyright law does not excuse infringing behavior (in legal speak: Ignorantia Juris Non Excusat). Nor is it a ticket to avoid paying compensation to the person who created it
Also, the infringer’s intention is irrelevant to determining liability.
After all, anyone could say that they didn’t intend to infringe on someone’s copyright, even if they were well aware of the rules. Staying informed on copyright rules, who owns the copyright and getting permission to use it is your responsibility, i.e. your due diligence as a content user.
Although copyright law has been around for a while, there is still a lot of misinformation out there, reflected in how people use content online.
A key takeaway is that, when it comes to copyright rules, you must always refer to what the law says in your country - not to what your friend told you about copyright (unless they happen to be an intellectual property lawyer, of course).
Avoid believing these common urban legends and misconceptions about copyright and you’re well on your way to staying copyright compliant online and avoiding costly infringement claims!
In doubt about whether the rules of copyright apply in your situation? Or just interested in knowing more about staying copyright compliant online?
Feel free to reach out to us at firstname.lastname@example.org and get in touch with a legal expert from your area!
Who owns the copyright? In this article we will take a look at how copyright law applies to portrait photos, as well as some things to consider when dealing with professionally taken portraits.