As you might imagine, I get asked all kinds of questions about legal issues. Because I work and spend time with online entrepreneurs for most of my day, I tend to get a lot of questions about copyright law. That makes sense because copyright law covers most of what we do as online entrepreneurs. Images, videos, music, written works, and other original creative works all fall within the rubric of copyright law.
So, yeah, copyright law is kind of a big deal for online entrepreneurs. Unfortunately, there is also A LOT of really bad information floating around about copyright law.
This bad information sometimes comes form non-lawyers who have learned just enough to be dangerous but sometimes even comes from uninformed lawyers. If you want to avoid expensive legal disputes that could destroy your business, you need to ignore this bad advice.
So without further ado, here are the 4 most common myths about copyright law that I hear from entrepreneurs.
Probably the MOST common myth I hear is some version of this: “I hear that you can play up to 7 seconds of copyrighted music without having to get permission. . .”
The particular length varies. . . sometimes I hear 5 seconds and one person even thought of it as the 30-second rule. But every time I hear it, I want to scream!
I have no idea where this idea originated or who continues to spread it. But it is wrong. Plain and simple. There is no arbitrary rule that allows you to play any length of copyrighted music without permission (and the same is true of using a snippet of a video or podcast or any other copyrighted work).
Under the law, the default assumption is that you cannot use any recognizable portion of a copyrighted work without permission.
I suspect this myth has it’s roots in a complicated legal doctrine known as “fair use.” But you really don’t want to rely on fair use, as I explain below. And the fair use doctrine certainly doesn’t include a bright-line rule about using some length of music.
Banish the 7-second myth to the waste bin where it belongs.
If you scroll down to the bottom of this page (and really most any webpage), you’ll see a copyright notice. If you look on the copyright page of a book, you’ll see it includes a notice and will say something like “All rights reserved.” And if you pay attention closely to movies (and watch them until the credits have rolled), again you’ll see a copyright notice.
Given how pervasive these statements are, you may think that to get protection a work must include a copyright notice. Heck, I’ve even seen legal guides prepared by lawyers that includes advice that you need to include a notice to protect your copyrighted works.
The myth comes up most frequently as a justification for why entrepreneurs think they can use someone else’s work. They think they are free to use things that don’t have a copyright notice without having to get permission.
This is just FLAT WRONG. And I’m especially pissed that I’ve seen lawyers peddling advice that perpetuates this myth.
Here’s the actual legal rule: anyone who creates an original work gets copyright protection the instant they commit it to fixed form.
There is no notice requirement.
You get copyright protection automatically when you finish a work. So as soon as your pen leaves the paper or your hand leaves the keyboard or you record the last musical track, the work is protected. It’s just that simple.
And that means no one else can use it without permission from that point forward. Notice is completely irrelevant.
It’s pretty easy to zero in on the source of this myth. It is a relic of history.
Here in the United States, works created prior to March 1, 1989, needed to include a notice (at least in some cases). But for any work created on or after March 1, 1989, there simply is no requirement to give notice. So unless you are thinking about using a work that is 30 years old or older, notice is just plain irrelevant.
Now, let me give you this pointer. It is still good practice to include a copyright notice on YOUR works. If nothing else, it will keep people who buy into the notice myth from using your work without permission.
But, you need to banish any belief that you can use someone else’s content just because it doesn’t have a copyright notice attached.
As a savvy online entrepreneur, you know that images are valuable. You use them all over the place in your business.
But are you getting them LEGALLY?
There are so many myths about images that get people in trouble.
Maybe you think you are free to use images you find on Google Images without getting permission.
Maybe you think that once an image is posted on social media it loses protection.
Or maybe you think that getting an image from a stock image site will guarantee that you can use it without restrictions.
Wrong! Wrong! Wrong!
Let’s start with the first two, which are similar. Images don’t lose their copyright protection when they are posted on the internet or social media. That means, you can’t simply grab an image from Google images or from someone else’s social media and use it.
This is what I refer to as the “right click, save as” problem. If you find yourself engaging in that behavior pattern with an image, just stop. Don’t do it.
You have to get images from a source that offers them with a copyright license. That will generally mean going to a reputable stock image site to get the pictures you want to use.
But that’s not the end of the story. . .
This leads us to the third stock image myth. Copyright licenses are not all created equal. You may end up with a license that allows you to use an image personally, but not for your business. Or maybe you end up with a license that will mean you have to pay more if the image is attached to a post that goes viral. Or maybe you got a license that requires you to specifically credit the photographer every time you use the image.
These limited licenses are a recipe for disaster. You need to get the RIGHT kind of license. Whether you get them for free or pay for them, you need to make sure that the images you use come with a copyright license that includes three elements: (1) royalty free, (2) commercial use allowed, and (3) no attribution required.
This issue comes up so often, that I’ve created an Ultimate Stock Image Guide, which explains these three elements in detail and provides a list of a dozen free stock image sites that fit the bill. You can grab it for free by clicking here and heading over to FB Messenger.
The upshot here is that you need to make sure you are getting your images the right way. Be intentional about it.
This is not one I hear quite as often, but I sometimes hear entrepreneurs saying that fair use will save them. Worse, I often see them throwing the term around in online discussions telling other people to rely on fair use.
As a quick aside, a good rule of thumb would be to ignore what non-lawyers tell you about copyright law. Copyright law isn’t so complicated that a non-lawyer can’t understand it. Far from it. The problem is that there are lots of people out there who know just enough to be dangerous.
And that is the case with the fair use myth.
Is there a concept called “fair use”? Yes.
Is it possible that “fair use” might allow you to use copyrighted material without permission? It’s possible.
But it’s also possible that I’m going to wake up tomorrow and actually be funny!
Fair use makes lawyers LOTS of money.
It isn’t a simple rule. It has lots of tricky parts and the decision about whether something constitutes fair use is based on balancing a bunch of factors. What that means is there is generally not a clear answer about whether something is a fair use or not.
What strikes the person using the work as “fair use” will often strike the copyright holder as plain old copyright infringement.
So except for the clearest cases, relying on fair use is an invitation to be sued for copyright infringement.
You might win. . .
You might lose. . .
But even if you win the battle, you’ll probably lose the war. . . Mounting a fair use defense could easily cost you a hundred grand or more. There aren’t many gambles that could cost you a hundred grand (just to win) that are worth taking as an online entrepreneur.
So please, for the sake of your business, don’t think that fair use is going to save the day.
Copyright myths are all around you, and believing them can have disastrous effects. As a general rule, you should just assume that you cannot use any part of a written work, image, music, video, or other creative work without permission. And you should make sure that permission comes in the form of the right kind of license.
If you follow this advice, you’ll keep your business out of trouble.
Bobby Klinck is an intellectual property attorney, but he’s not your typical lawyer. Sure, he went to Harvard Law School and worked at some of the most prestigious firms in the country, but if you look at the big whiteboard in his office, you won’t see much about the law. His whiteboard is filled with tasks related to platform building, inbound marketing, and sales-funnels. Bobby is a full-fledged online entrepreneur, whose area of expertise is the law.