Sure, copyright infringement sucks, but it isn’t theft. Fair use isn’t really a thing, and the government won’t help you enforce your copyrights. We tackle the sometimes confusing area of design ownership and property rights and debunk the top 13 misconceptions about copyright.
Before we begin, let’s get this out of the way: I am not a lawyer, nor do I play one on the Tee Vee. Any legal stuff you’re about to read is worth pretty much what you paid for it, and for serious legal advice on copyright, trademark and related matters, you should always, always, always, consult a live attorney. With that out of the way, we can begin..
Ah yes, copyright. It’s either the magic bullet to protect your intellectual property rights, or not worth a thin red dime, depending on who you talk you. Truth is, both are sorta true. Copyright will protect your artwork to a great degree, but there’s no copyright enforcement agency just waiting for your call when that great design of yours shows up somewhere it shouldn’t. So, what exactly is copyright? Let’s quote some legal guys:
“A copyright, by definition, is a set of exclusive rights granted by a state to the creator of an original work or their assignee for a limited period of time upon disclosure of the work. This includes the right to copy, distribute and adapt the work.”
Basically, copyright is the right to copy something. Print it. Put it on T-shirts. Throw it on a website. The idea behind copyright protection is quite simple – it was originally intended for books because as a society we realized that they were integral to our well-being, and people had to be encouraged to write. If they spent half their lives writing this tome or that, only to have it knocked-off by some other unscrupulous author, there wouldn’t be much incentive and nobody would bother writing anything. By allowing an author to copyright his work, he could monetize it, and thus would continue to write great stuff that would enlighten society as a whole. Nowadays it applies to art, music, drawings, photographs and just about anything that can be created (except for ideas and words – patents and trademarks would protect those.) In the context of this blog, we’re going to talk about design in general, logos in specific, and because there’s a lot of nonsense floating around about copyright, we’re going to have a go at the top thirteen common misconceptions and debunk them, one at a time.
1: Copyright infringement is theft.
No, copyright infringement is copyright infringement. Here’s what it means, legalese style:
“Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.”
Basically, infringing on someone’s copyright is using someone else’s copyrighted material without their permission. While under certain instances it can be illegal, and it may feel like it to the person who’s being infringed, copyright infringement shouldn’t be referred to as theft. Theft is a very particular legal terminology – that is taking something from the rightful owner and depriving them of the use of whatever you’ve stolen. Take a car – they can’t drive it. Take a camera – they can’t take pictures. Remember that goofy illustration at the top? Here’s the theft bit again:
You can’t technically steal someone’s artwork (unless you’re physically removing their painting from a wall) because they still have possession of the design, be it on their website or on their hard drive. Keep that in mind the next time you’re hollering at someone on Twitter that they’re a “thief” because they copied your logo. You’re accusing them of committing a specific crime, which they haven’t really, and accusing someone of a criminal act can be libelous, slanderous and/or actionable depending on how you say it and where you say it.
2: You need to register copyrights with the government.
Nope. You don’t. You also don’t need a little ‘C’ in a circle or to sign anything. Copyright is automatic on creation. You draw a pretty picture and the copyright to that picture is yours, unless you specifically release it into the wild under “public domain.” Public domain means that it belongs to everybody and everybody can use it. A great example of this would be fabulous World War II propaganda posters like this:
Because they were painted on the public dime, copyright was rejected and they belong to everybody at large. Anyhoo, the one advantage of spending a few bucks and registering a copyright with the feds is that it cuts through the “how full of shit am I” portion of the proceedings when you need to prove copyright. The registration is a de facto time stamp of when your copyright was claimed and anyone who did something shady after that, should be out of luck. Under some circumstances official registration may entitle you to legal fees and maybe even statutory damages, so while you don’t “need” to register copyright with the government, it might still be worthwhile.
3: The government will help me enforce copyrights.
Nope again. Registering a copyright with the Feds only proves that you’re claiming copyright and when you claimed it. If someone pinches (whoops, infringes on) your artwork, you’re going to have to enforce your rights the old-fashioned way. With cease & desist letters, a lawyer and a trip to the courthouse. On the plus side, your government registration will be accepted by the judge as proof of your copyright claims, otherwise it may be difficult proving exactly when you took that great photograph of your cat.
4: I can use anything I find on the internet
No. No. A millions times no. A picture or artwork showing up in a Google image search does not eradicate it’s copyright. Google tells you as much on every search page:
Copyright belongs to the creator of whatever image or design that’s caught your eye and if you want to use it, you still have to ask. If you can’t find out who the original author, designer or creator is, don’t use it. Period. Remember, copyright is automatic upon creation, and lasts for decades after the creator is dead. It’s up to you to find out who to get that permission from, and to get it. It’s not up to the creator to track you down after you’ve used their stuff. Unless it’s to ask you to stop. And ask for some money.
“Copyright belongs to the creator of whatever image or design that’s caught your eye and if you want to use it, you still have to ask. If you can’t find out who the original author, designer or creator is, don’t use it. Period.”
5: I didn’t mean to infringe on someone’s copyright, so I’m safe.
Nope. You’re every bit as exposed as if you did it intentionally (though intentional copyright infringement can rise to a criminal act.) Intention has nothing to do with copyright infringement, infringing on someone’s copyright is what exposes you to potential legal problems. There’s really no way that copyright infringement is a mistake anyway. If you didn’t try to find out who the creator was, that’s infringement. If you tried, but couldn’t, you shouldn’t have used it. Ergo, infringement. It’s always up to you to get whatever permissions you need.
6: If I buy something that’s infringing on a copyright, it’s the person that sold it to me who’s responsible.
Wrong again. This is supposed to be a design blog, so let’s talk about logos and copyright. If you buy a logo from some charlatan designer who copied it from somewhere else, you’re still responsible for the infringement when you use it. It’s unfair I guess, but you’d be the one subject to sanctions. Sure, you can always sue the designer who sold you the infringing logo for damages, in an attempt to recoup whatever loses you suffered. Trouble is, you’re being sued by Ginormous Corporation International and their four floors of legal beagles. You’re going to be suing some graphic designer who you probably met on the internet, lives half-way around the world and probably doesn’t have any assets to take. You might win, but good luck collecting a penny.
7: If I stop using artwork that is infringing, I’m in the clear.
If not legally or technically, that might turn out to be realistically true. Many times people just want you to stop using their art or photos. Take them down and they go away – that’s the “cease and desist” part of the equation. Stopping using a copyrighted image isn’t always the end of it though and alas, it ain’t you that makes the call. The folks who are claiming you used their copyright may also claim damages – that you cost them financially by using their artwork or image. That’s bad. Worse, if you made profit using their artwork, because they’ll want that too. And they’re legally entitled to it. When it comes to suing people over copyright, it almost always comes to a decision tree, the main question being this – “is it worth it to sue the guy who used my stuff?” It it’s worth it, they will. If they’re a big company, they may sue you just to set an example. Either way, it’s a rather dangerous game of copyright roulette.
8: The longer I use something that’s infringing, the safer I’ll be.
While it’s true that you acquire certain property rights simply by using something, those acquired rights don’t negate original copyrights. Nobody – courts included – expect copyright creators to police the internet (and real world) 24/7, to find cases of their work being used without permission, the instant they show up on this website or that. They may stumble on your infringement months, years, down the road and still have perfectly legit claims against you. It might even be worse the longer you’ve been at it. They could argue that you damaged them a lot by such extensive and lengthy use of their material, or if they’re going after profits (see #7) they’ll be going after months or years worth. That could be substantial.
9: If I hire someone to create something, I own the copyright.
Not necessarily true. This is a very complicated area and involves employment law, work for hire, and a whole bunch of legal jargon that could make up an entire blog post of their own. Remember, the basic rule? Whoever creates the art, owns the copyright. There’s some pay-for-play exceptions. If the designer works for you, as a salaried employee, chances are everything they create during their work day belongs to you. Unless there’s a contract that says otherwise. If you’re working with a freelancer, it all depends on the agreement you have with them at the beginning. In some instances, everything they develop under that contract are your copyrights. Other times it will be isolated to just the final deliverables. In other cases, they will hold the copyright to the work, but allow you to use it for very specific purposes unless they “sign over” their rights to you. Usually for additional costs. It’s always best to sort this stuff out beforehand, as nothing sends a client and designer relationship south faster than quibbles over ownership.
10: If I pay someone for artwork I own the copyright and can do what I want with it.
This is a variation of #9, not necessarily true either and all depends on the nature of the rights you’re actually buying. In the context of logos, we can look at stock art sites. I can pay for the rights to use their artwork on brochures, websites and even this blog. No problem at all. What I can’t use the art for – even though I paid for some rights – is as a logo. In fact, this is specifically forbidden on most stock art sites operating today. Whenever you’re purchasing copyrights from someone, check to make sure which ones, and that you’re permitted to use the art in the way you intend.
11: It’s really expensive to stop someone using your copyrighted material.
Yes and no. If the infringement is on the Internet, you can always file a DMCA takedown notice. DMCA stands for the Digital Millennium Copyright Act and was enacted when copyright infringement became such a massive problem with everyone and their brother helping themselves to whatever image that piqued their fancy. Here’s how it works. When you find an infringing piece, you send a notice to the site’s host, informing them of your copyright claim, which is then turned over to the host’s client, the owner of the website. They have a certain period of time to rebut your claims (next to impossible if they really are infringing) and if they don’t, the webhost will remove the material at root level. Here’s the thing – if they do rebut, claiming “fair use” or other such thing, you gotta go after them the old fashioned way. Lawyers and court houses. Most people fold pretty fast after receiving a DMCA notice, so it’s always a worthwhile first step, while keeping in mind that it still might get expensive if they don’t. (Pro tip: naming and shaming on Twitter is very effective too. Just don’t call them a “thief.”)
12: Claiming Fair Use excuses copyright infringement.
Not even close to being true. Let’s start off by figuring out what “Fair Use” actually is:
“Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders.”
The government realized that using copyright laws and ownership rights, larger corporations could quash criticism – codified under The First Amendment and free speech – so there are certain exceptions to the absolutism of copyright. Fair use let’s you use copyrighted material for things such as commentary, criticism, news reporting, research, teaching, library archiving and scholarship. In the context of this blog I can feature other people’s logos and artwork for critique or review and that would (probably) be okay. I say probably because fair use has no real barometer of what it is or isn’t, and it’s actually a valid defense against claims (and lawsuits) of copyright infringement, not a privilege or right. What it isn’t is a panacea to use anything you stumble on, for whatever use you see fit.
13: I can prove copyright date by mailing my art to myself.
Known as the poor man’s copyright, this involves the following steps:
1) placing a copy of the artwork you’re claiming copyright on in an envelope,
2) sealing it and mailing it to yourself and
3) not opening the letter.
The idea is that the envelope can be presented in court, the franking mark will tell the date, the Post Office is a recognized arbitrator of time and by opening it in front of a judge, we can prove “this art, this date.” Trouble is, the poor man’s copyright has always been complete and utter nonsense.
Bonus myth: If a monkey takes a selfie using my camera, I own the copyright.
Actually, no you don’t. Technically, the monkey does, but since the law actually states you have to be a company or a human to own a copyright, nobody does. Into the public domain it goes.
Have a great day! (the monkey seemed to say)
Apparently this “copyright is not theft” bit is something that’s contentious and the source of considerable debate. I received this link via the Twit machine. That leads to a fairly lengthy article that argues copyright infringement is actually “common garden” theft. Even if he’s right, the illustration stands.