Myth No. 1. If a work is on the web, it is in the public domain
Sorry, friends--believing this myth is a surefire way to be on the receiving end of a Digital Millennium Copyright Act Take Down Notice--or worse yet, a copyright infringement lawsuit! Just 'cause it's on the web, doesn't mean you have free reign to use it! That includes written works, images, and music videos!
The only way a copyrighted work fails into the public domain is (1) by being no longer protected by copyright (generally, in the U.S., works published before 1923) or if (2) the author expressly put the work in the public domain by making a public statement that they release all rights in the work.
Bottom line: If you want to use a work published online, contact the copyright owner! If you truly think the work is in the public domain, double check using a chart such as the one provided here.
Myth No. 2. If a works does not have copyright notice, permission is not needed to use the work.
Copyright protection is automatic and immediate once the work is in a fixed medium--and as of March 1989, copyright notice is no longer required for published works. Inclusion of a copyright notice is at the owner’s discretion (and is highly recommended). Lack of copyright notice does not indicate that the work is in the public domain and that you are free to use it! So why should a creator/copyright owner include notice? Well, for one, it prevents someone from claiming innocent infringement and a reduction of damages. Two, it helps identify you as the copyright owner or representative. One thing to remember, though, you cannot lose copyright by no notice or improper notice, so no worries there!
Myth No. 3. If I don’t make money on the use, I don’t need permission.
Nope, sorry--you are still infringing (until a court says your use is fair). Copyright infringement does not depend on commercial gain! You must obtain permission to use another person’s work, otherwise you have committed copyright infringement, and the copyright owner has every right to ask you to remove your infringing use--or worse yet, take you to court.
Now this doesn't mean financial gain doesn't play into the analysis--sure, a copyright owner may be less inclined to haul you into court if you aren't displacing his/her market with your infringement, maybe they might just send you a nice little Digital Millennium Copyright Act Take-Down notice if you post the work online. ALL of these Myths are presented because they deal with infringing actions and The Legal Creative hopes that being aware of these myths will help you in your analysis of the risk of using another's work.
Myth No. 4. As long as I give credit to the original author and disclaim ownership, no copyright infringement occurs.
Ahh, the famed "youtube defense". Giving credit does not circumvent the author’s rights in a copyrighted work
The right to attribution (credit) is only one right the law affords the copyright holder. The owner still has the right to determine how their work is going to be used, who can use it, and the right to be compensated for that use. Giving the original author credit does not negate their other rights!
Myth No. 5. If I alter the work X%, or if I only use part of the work, I don’t need permission.
As one court has stated: "You cannot escape liability by showing how much of a work your did not take.” Fair Use cannot be described with mathematical terms. There are no "bright line" rules for fair use. Even a small amount could be considered the "heart" of the work and not fair use.
There are no numeric rules, and that's a good thing--you'll want always to have the right to exercise judgment on what amount/which content you might need to use within your work. If it were numeric, you could easily break federal law if you exceeded the number.
Myth No. 6. Hey Man, It’s Fair Use!
Are you one of those artists (or have you encountered someone using your work) who, in using another's work without permission, throws around the term "fair use" without fully understanding the concept?
Found in Section 107 of the Copyright Act, the Fair Use Doctrine addresses the need for EDUCATIONAL USE, PARODY, COMMENTARY, AND RESEARCH. Section 107 permits some copying and distribution without permission from, or payment to, the copyright holders.
But beware: The Fair Use Doctrine is a limited defense to an allegation of copyright infringement. The distinction between "fair use" and infringement may be unclear and not easily defined. There is no specific percent of a work of visual art that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. Fair use is determined by the courts on a case by case basis and there are no precise rules to determine when the exemption applies.
The Four Fair Use Factors:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work; factual or more artistic
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.
For more info, check out Stanford's site on Fair Use.