Copyright Infringement Myths
Listed below are some of the more common falsehoods.
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There are several myths surrounding copyright infringement. Listed below are some of the more common falsehoods.
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Four Bars of Music.
There is a common myth among musicians that four bars of music may be copied without an infringement occurring. As noted below, when a judge examines the portion taken from the copyrighted work, the criteria is not the amount of taken, but the importance of the portion taken.
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Some persons presume that infringement cannot occur if attribution is made to the original source. For example, if a credit is given to the original author, then that author cannot complain of infringement. This is not true. Attribution will not prevent an infringement claim and in the case of advertisements, for example, attribution may even lead to additional claims of the right of publicity or false endorsement. For example, if a scientist's copyrighted article was quoted at length (with attribution) in an advertisement for cigarettes, that unauthorized use would be an infringement. If quoting portions of a copyrighted work for scholarly purposes or other purposes that may qualify as a fair use, it is sometimes suggested to include an attribution as to the source. Some commentators even suggest including information about how to purchase the source material, thereby turning the reference into a promotion and hopefully avoiding a claim of infringement. Remember, however, attribution will not prevent infringement claims.
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Paraphrasing a work will usually not defeat a claim of substantial similarity. For example, in the case of Salinger v. Random House, the author paraphrased several copyrighted letters by novelist J.D. Salinger. In one example, Salinger had written, "She's a beautiful girl, except for her face." The paraphrase was written, "How would a girl feel if you told her she was stunning to look at but that facially there was something not quite right about her?" The court, in finding infringement, also took offense as to how inadequately the paraphrasing had been performed. The court further determined that an appreciable number of readers would have the impression they had read Salinger's words. Despite this myth, paraphrasing is rampant on the Internet even among well-known sites. Compare for example, my article, Ten Tips for Songwriters: Credits, Copyrights, and Coauthors, with this article, Songwriter Tips for Copyright, Credit, and Royalties
It's In the Mail.
Many persons believe that mailing a work to oneself is proof of ownership or priority of creation of a work. They believe that the postmark will demonstrate that the material sealed inside was prepared on a certain date and therefore the work was independently created prior to any alleged infringement. Such evidence is inconclusive in an infringement case because of the possibility that the envelope may have been opened and resealed after being postmarked.
Not for Profit.
Some people incorrectly believe that if the purpose of the infringement is not for profit, there is no infringement. For example, if a nonprofit charity uses a copyrighted character in its donation drive and mailings, the charity may be liable for infringement. Similarly, a not for profit political campaign cannot freely reproduce television footage of news events or other candidates without risking a claim of infringement. The not for profit status of a defendant may have a bearing on two issues, however: a defense of fair use or proof of lost profits.
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