A Look at Copyright Myths We Need to Work Together to Kill. Now.
Copyright myths remain a common plague on small press publishing, self-publishing, and freelance writing and art despite the ease of accessibility to reliable sources online.
Because the unreliable sources are just as easy to access and — if anything — more prolific because so many people continue to buy into and repeat so many copyright myths.
Dispelling Copyright Myths from the Source
Check out this link to the US Copyright Law
Check out this link to the Canadian Copyright Law
Check out this link to the UK Copyright Law
The perpetuation of copyright myths is not something that remains a problem because anyone actually wants to misrepresent the facts of the relationship all publishers, writers, and artists share with copyright. It remains so because most copyright myths are self-serving and seemingly helpful — they represent what so many people want to believe about copyrights because, if most copyright myths were true, it would work out in their favour.
For some reason, copyright law and the various copyright myths that naturally follow have long fascinated me. I enjoy talking about them in practical and theoretical terms, but I also recognize that copyright myths are a dangerous blight that can lead the unaware or misinformed into legal trouble because they come to believe them to be a truthful and accurate representation of fact.
After all, why would people keep passing them around if copyright myths weren’t true, right?
So, here following are some common copyright myths we all need to work together to kill. Despite what I’ve posted first, these copyright myths appear in no particular order.
(It’s worth noting that there may be exceptions to these copyright myth in some countries, including the United Kingdom, but even in such exceptions, you’ll find some suggesting you don’t rely on the exceptions, such as the first myth we discuss, because of how easily it can be faked and how little credence it has in an infringement case on its own.)
Myth #1: Poor Man’s Copyright (or, the Falsehood that Even Lawyers Still Buy Into)
Poor man’s copyright involves mailing yourself a manuscript within a sealed envelope so that you create a record of a date that is attached to your manuscript in the process. Variations on this theme include getting a sealed envelope notorized, leaving it in a sealed bank or the like, emailing it to yourself so you get a date stamp on the email, or saving a digital file and then leaving it alone to similarly get a date attached to the file.
This is, in my opinion, the oldest, most annoying, and common of the copyright myths that refuse to lay down and die. It doesn’t help that some lawyers — not any self-respecting Intellectual Property (IP) lawyer, mind — join on the bandwagon of misinformation, and argue from a position of assumed authority that others easily accept.
When (Non IP) Lawyers Give The Wrong Opinion on Copyright
I recently became engaged in a back-and-forth with an American trial lawyer who insisted that poor man’s copyright had value in the US because it could be used as evidence to begin an infringement case. When he admits he couldn’t find any actual case history of this happening (keeping in mind there is over a century of copyright related case history in the US to provide such an opportunity), did he admit he could have been wrong, as any reasonable person would?
No, he did not.
Instead, he doubled down and wrote a blog post wherein he created a fake evidentiary hearing (yes, I’m the “fellow” he mentions) wherein a manuscript in an envelope was the only evidence the made up writer claiming infringement was able to present.
Did I mention he set himself up in position of judge in this imaginary scenario?
As judge in a fake case he was making up to “prove” his point, of course this lawyer ruled the poor man’s copyright envelope stood as sufficient evidence to allow the infringement case to go forward, awarding the party with the poor man’s copyright twice their legal costs as part of the evidentiary hearing’s judgement.
I know, an absolutely surprising outcome.
So, leaving aside the fact that your sealed envelope may get you far enough to stand in front of a judge or mediator who will determine if you have sufficient cause to go ahead with further legal proceedings (although not forgetting there apparently no record of this actually being allowed), consider what happens next when you get your poor man’s copyright into a courtroom as proof of creation and copyright ownership. Think about what happens when the time comes to actually try and make your case based upon it.
Let’s have a look.
Why Poor Man’s Copyright, the Big Daddy of Copyright Myths, Falls Apart
Mailing yourself an envelope with a manuscript (or piece of art, etc.) within does not stand as proof of a creation date of the contents. It stands as proof (at best) of a date you mailed yourself a manuscript that could have been created by anyone and fallen into your possession any number of ways. People who believe such copyright myths somehow fail to see this important distinction. Same goes if you got a notary to sign it, left it with a bank, and so on.
Still, for the sake of argument let’s assume no one brings up this rather important point, and things move on to actually trying to disprove the validity of the envelope (or equivalent) and its contents in court.
Well, first I’m sure the opposing lawyer will point out you can easily open, stuff, and then reseal an envelope (including those used by courier services, so long as they use glue.) There is also the fact that you can mail empty and open envelopes and parcels so long as you pay the postage for a heavier weight. For instance, I could pay more postage than required for an open envelope, mail it to myself, and hold on to it for years. Later, if needed, I could stuff whatever I wanted into it, seal it up, and for all intents and purposes it would look like the contents had been in there since the date I posted the empty envelope.
Things are even easier to fake when it comes to dating digital copies of content, which is why I don’t understand why people keep buying into these copyright myths.
Depending on how an email is sent, you can have the date altered, or you can spoof it through alternate servers where the date stamp can be any time or date desired. It is also possible to open up an email file that has been downloaded to someone’s computer and alter the text representing the date in most email browsing systems.
Regarding the actual date attached to the content file itself, this is even easier to fake. You just have to alter the clock on your computer (sometimes this may be done from within your operating system, but doing so with BIOS or CMOS is equally as easy and can quickly be looked up online) and then re-save the file. The file containing the relevant content will then take on the altered time and date settings. You then change your time and date settings to the real time and, presto, like magic your dated digital file has travelled through time!
It is unbelievably easy to disprove poor man’s copyright outright, or at least cast enough doubt on its validity to render it useless. This is why IP lawyers don’t rely upon it — they’ll be the first to dispel such copyright myths for you.
Investigating Poor Man’s Copyright on Your Own
I’m sure some of you are saying “but, Steven, you’re just some guy. Surely this trial lawyer and his made up story know more about the legal validity of poor man’s copyright than you, right?”
Good point. I am not a lawyer, regarding IP or otherwise. Unlike the previously mentioned trial lawyer, however, I know when I am speaking beyond the scope of my authority … which is why I’ll let actual IP laywers prove my point for me.
Open up your favourite search engine and type in something like “value of poor man’s copyright” or “validity of poor man’s copyright.” As one of the more popular and resilient copyright myths in circulation, prepare for a lot of hits.
Putting aside all the laymen writers, bloggers, artists, and musicians who swear by copyright myths like poor man’s copyright, what you’ll also see are blogs written by IP lawyers, FAQs from IP law firms, legal organizations, and authoritative groups that represent the interests of copyright creators who are addressing copyright myths, poor man’s copyright included. And what will they say about it?
It doesn’t work.
It’s easily disproven.
No precedent regarding it.
No known case of it every working.
… and so on.
Even most of the various copyright offices I’ve previously linked to officially address it in some way, telling you their respective copyright law doesn’t hold any value these copyright myths or make any provisions for it.
So, stop believing everything you’ve heard about the copyright myths regarding poor man’s copyright, even when you hear it from a publisher, writer, artist, or musician you trust who may tell you they’ve been doing it for years. This may be so, but all that means is that they’ve gone for years without their mistaken beliefs being challenged in court, and that they’ve have been wasting their money on unnecessary stamps and envelopes.
Myth #2: Derivative Work is also Owned By the Owners of the Inspiring Copyrights
One of the copyright myths I’ve found circulated amongst publishers with disappointing frequency, this aspect of copyright law is often misunderstood because it is so subjective.
A derivative creation is when you use someone else’s content, which is protected by copyright, as the basis for making your own content which is, in turn, also protected by copyright. If you are a fan of a particular television show, for example, writing your own short story using the show’s characters would be derivative work that is considered the copyright of the fan-fiction’s writer, and not whomever holds the copyright to the show.
The default position is that the creator of the derivative work owns that copyright, but it is contingent on sufficient originality being added to the new creation for it to be considered a separate work from the inspiring work. If the copyright owners of the inspiring work want to contest the copyright status of derivative work, mediation or a court may ultimately find the secondary creator is indeed infringing on the original copyright.
During the resulting mediation or law suit process, a ruling of infringement may result in the derivative work’s creator being called upon to do anything from withdrawing the derivative content from public to paying damages (such as money the original copyright owners can show the derivative work’s existence has lost them) to transferring ownership of the derivative content over to the other party in the comparatively rarest of cases.
Transfer of ownership certainly is not a given, nor is it the default situation that derivative content exists in.
When is Derivative Work Infringing on the Original Work?
There is no hard, definitive formula that determines at what point a derivative work constitutes infringement upon the original copyright, despite many claims to the contrary (more on this later.) If you look for it in any given copyright law, you won’t find it. Why? Because much of what copyright law covers — writing, music, and art — is highly rooted in the subjective, and such a formula would be entirely objective in nature. As such, it would be up to the judge or mediator overseeing a copyright case involving derivative work to decide where the line would be drawn in a specific case.
Even if you own the copyright of a derivative work, however, that also doesn’t mean you can do whatever you want with it. Once you try publishing a derivative work, you enter an entirely new arena of copyright law. Although Fair Use (or its equivalent in any given country) offers some protection in this regard, it is not an immutable shield that applies in all instances.
Fair Use is also incredibly subjective in how it is applied in cases like this, and if you are trying to make money off your derivative work, the chance of no instance of infringement being found in your favour begin to decrease because you’ve provided an argument that your derivative copyright dilutes the ability of the original copyright to make money in a similar fashion. In other words, it can be argued that commercializing your derivative work makes it more difficult for the original work to make money, is negatively affecting its branding, and so on, which is not good news for your claim for a copyright to a derivative work.
When RPG Publishers Get Copyright Wrong … and May End Up Green Lighting Infringing Publications
Derivative work being the property of the original copyright owners is another one of the commonly shared copyright myths I’ve seen used by people in control of publishing content, including some people in the role-playing game industry whom I respect, and consider to be talented and experienced in their field. However, talent and experience are not proof against believing in certain copyright myths. Indeed, because of their experience and talent, professionals in publishing who buy into copyright myths are often in a position to make decisions that can actually put the creative projects they are involved with in a situation where they become liable for a copyright infringement.
Think of how ridiculous a notion it is that creating something derivative of someone else’s work is automatically the property of the original creators by default.
Consider all the fan-made art that exists of popular media, such as comic book characters (e.g., Superman) and movies (e.g., Star Wars.) Does anyone honestly think that if someone posts an amazing, but entirely fan-based digital painting of Darth Vader on their website, Disney can come along and use it on their next movie poster without attributing the artist, getting his permission, or paying him simply on the basis of the fact that Darth Vader’s likeness is a copyright owned by Disney? Such a practice sounds like the sort of thing companies would start using all the time to save millions of dollars, no? And yet you don’t hear writers, artists, and the like getting the Internet up in arms about it.
Want to know why?
Because fan-based (and other derivative) art, stories, music, and so on that is based on someone else’s copyright is actually considered to be the copyright of the creator of the derivative work — in this case, the fan — by merit of its own original qualities. It doesn’t matter that Disney owns the rights to Dart Vader’s likeness in our example because Disney does not gain the rights of ownership / copyright to the derivative version this fan created.
Now, if this artist tried making money from this artwork, the relationship between derivative work, original source material, and copyright laws can shift its goalposts. Monetizing their original-but-derivative creation creates a situation under which Disney could say the fan selling Darth Vader art undermines their own ability to sell the character’s likeness, or that buyers may be confused that the artwork is officially sanctioned Star Wars art. And yet, even in this situation, the specific circumstances would need to be considered because there is still no objective pass-fail threshold that determines the outcome of these situations without fail. Yes, there is precedent, but that is still not definitive.
(Also, despite monetization adding a new perspective to our hypothetical, it should not be seen as evidence supporting one of the other common copyright myths that won’t die off: you can’t infringe on someone’s copyright if you’re not making any money from your content. More on that another time.)
Because of something that happened early in my freelancing career, I was once approached by an artist regarding a certain RPG publisher. She claimed that this company had tried using a piece of art she had submitted in a professional product despite refusing to pay her, claiming that because the art depicted something the publishers owned the copyright to, they thus owned her art by default as well. This is a second hand story I couldn’t verify at the time, so I won’t name the publisher, but it and my previous example of another RPG industry veteran doing something similar illustrates how far some copyright myths have infiltrated publishing.
The fact that there are no binary benchmarks by which to judge the uniqueness of derivative works leads to all manner of confusion that in turn gives rise to many copyright myths, unfortunately.
This particular misunderstanding of copyrights and derivative works flows into yet another of the more common copyright myths, one that is especially common amongst artists and musicians …
Myth #3: Changing the Original Copyright by 10% (or 20%, or 25%, etc.) Puts You in the Free and Clear
As I stated with the second of my posted copyright myths, there is no formula for determining when any given creation transitions from a highly derivative work to something that is original. However, in many creative circles (especially amongst artists and musicians), you will often hear copyright myths circulate regarding only needing to change the original by a certain percentage for it not to be considered infringement. (Google “copyright 10%” to see what I mean.) This percentage varies from one version of this myth to the next, but 10% seems to be the most common.
Copyright myths regarding a Fair Use formula remain equally untrue, no matter the percentage you end up believing, however.
Fair Use (nor any other part of copyright law) does not provide any objective benchmarks regarding derivative and altered works that determines a threshold for copyright protection. Choose any of the percentages you’ll see accompanying such copyright myths, and search through the actual laws for it (they are available online, in full, for free.) You won’t see that percentage pop up at all, let alone in relation to Fair Use and what sorts of derivative works are protected as original copyrights.
The fact that I still see experienced artists bring this up from time to time, and that it is also believed by some of my musician friends, shows yet again that years of professional experience does not render one immune to some copyright myths.
Derivative Content: The Way that Works — “Filing Off the Serial Numbers”
You may have read this far thinking I’m all against derivative works and protecting them with copyright. This couldn’t be further from the truth. I’m all for using derivative works and accepting them as original creations, so long as one does so with respect to the original (which means you’re not trying to be an ass by doing so), but that’s my personal commentary. I do, however, despise the copyright myths that have arisen surrounding it.
There is a process by which another party may legitimately produce content related to someone else’s copyright while enjoying the benefits of copyright protection that I refer to as “filing off the serial numbers” — that is to say, stripping away all proper names, direct visual cues, and the like from the original source content that are protected under copyright laws. One then builds the derivative content with sufficient nods and winks in the direction of the original source material without ever directly coming out and saying “my stuff is just a copy of that stuff, there.”
Filing the serial numbers off of someone else’s copyright is a tricky process, so I don’t suggest you do it without consulting an IP lawyer and being able to move forward with full confidence that what you are doing is on the up-and-up. Even then, given the mutable nature of this aspect of copyright law, the owners of the source material copyrights could still decide to pursue action against you (which is why I also suggest you try contacting them beforehand to make them aware of your plans and get a feel for their position on the matter), and you could lose in mediation or court if you fail to put forth a convincing argument that your derivative content has diverged enough from the source material to now be considered an original work in its own right.
Case Study: OGL Barbarian
To show you what I mean, we’ll look at a series of products I published under my company, Misfit Studios. Misfit Studios’ first product line was the OGL Barbarian series, and was meant to take advantage of the then-popular role-playing game license of a well-known pulp fantasy setting and character.
To file off the serial numbers properly, I had to find a way to give a sufficient nod and a wink to the audience so they would be able to connect the dots themselves, but I had to do so with subtlety. One of the means by which I did this was to create a logo (seen right) that hints at the original source material without going so far as showing anything that would be an unmistakable confirmation of my inspiration.
Within the products themselves, I would use names and references that created vague, tenuous lines to the original content without crossing over into infringement. For arguments sake, let’s say the original source material had a city state in it known as “Hocknack, City of Horses” that was ruled over by a society of horsemen modelled after the Mongols. I could not use the name “Hocknack” in any of my own products, but I could refer to its inhabitants as “horse nomads” and the only actual city within their territory as the “City of the Horse Nomads.”
Not an exact match, but close enough that people who were familiar with the source content I was deriving my work from would see the connection.
It also helped that the original source material included names and concepts that are in the public domain, meaning I could use them openly as well. For example, the ancient civilization of Atlantis and its people was used in the original works and, because Atlantis was created by Plato thousands of years ago, any claim to copyrights or trademarks in the given context wouldn’t exist — it was a matter of public domain. As such, I mentioned in my OGL Barbarian products that ancient Atlantean blood still flowed in the veins of some current races, and could provide game statistics for Atlantean weapons and artifacts.
(EDIT for Clarification: To clarify a point here that someone raised elsewhere regarding this aspect of copyright myths (thanks to Peter Casey for raising it), the overall concept of Atlantis — an ancient civilization that fell into the sea –is in the public domain because of Plato’s works. Other representations of it can still be protected by copyright. For example, I could not copy images and the like from the animated movie, “Atlantis,” without risking infringement because those aspects of Atlantis are themselves a unique representation of something new. My exploitation of the link Atlantis represented in the original source material and my OGL products was limited to the “ancient civilization” in the broadest of terms — I didn’t qualify it any further beyond that, leaving the relationship with the source material to do the rest for me. This stands as further evidence of why you have to be careful when “filing the serial numbers off” of a copyright.)
The fact that both the licensed game and my OGL Barbarian products were published under the Open Gaming License (OGL) allowed for making my product material mechanically compatible with the former much easier, and also gave me additional protection in the eyes of US copyright law because both myself and the other publisher were bound by that license’s terms, sidestepping around some aspects of copyright law, in ways that was important to how I was designing and presenting my derivative work.
One of the biggest setbacks with the OGL is that you cannot declare your product to be openly compatible with someone else’s without their permission. I sought to remedy this by asking the other publisher’s permission, but was not surprised by their friendly denial (they did wish me luck with my products, however, and let me talk about them on their message board as proof that competitors need not always be in opposition.)
Even so, the surety of my the derivative nature within my OGL Barbarian products never enjoyed ironclad protection, as many copyright myths would have one believe. By deriving my work from someone else’s, no matter how carefully I obfuscated these relationships, I was still always exposed to legal action on the part of the parties who hold the copyrights to the original source material. You can do everything as safely and as properly as you think is possible, but even using the file off the serial numbers approach still puts your neck out on the chopping block, if only just a bit.
Publishing the OGL Barbarian products was a risk I was always confident would play out in my favour, especially since I consulted an IP lawyer about my plans and methods, but it was a risk nonetheless.
That being said, let’s look what happens when someone wholeheartedly buys into the previous copyright myths and makes (supposedly) professional decisions based on this belief.
Derivative Content: When Copyright Myths are Clearly Infringement
Keeping in mind what I’ve already said of the copyright myths concerning derivative works being largely due to a misunderstanding of the incredibly subjective nature of what guides such content between infringement and protection under copyright, there are still some examples to be found that are so blatant in their infringement that no grey area exists.
Let’s look at some cases of derivative-based infringement in the role-playing game industry, some of which that I’ve personally crossed paths with. The first case is one that’s really out there.
Infringement Case Study: Dark Phoenix Publishing
The first case study is that of Dark Phoenix Publishing, a “role-playing game publisher” (and yes, I’m using air quotes, because despite what this publisher says, it’s basically some guy putting together horribly low production quality, amateur game content and then trying to sell it) myself and several others took to task when their use of other people’s artwork and written content came to light. This is a case of obvious infringement and not actually an instance that I would attribute to believing the copyright myths surrounding derivative works, although I’m sure in some instances the guy who comprises this company bought into the 10% version of the copyright myths previously presented. Based on how things unfolded, I would say it is more likely that the “publisher” involved merely thought they were being too clever to get caught, especially once they did get caught and the lies began coming out.
This guy , who publishes under a pseudonym, Mykal Lakim (real name Paul Michael Cape), would make posts on his company’s Facebook page along the lines of “hey, look at this new cover artwork for our upcoming product I just did!” or “my latest work in progress, done with X type of pen.” The only problem was that the former was usually him photoshoping someone else’s images and claiming it was his, and the latter was usually him tracing someone else’s work by hand or running it through a photoshop process that acts like tracing. He would then butcher the original artwork, even stretching it a bit so it would seem a bit off from the original, and then say it was his original artwork.
Even his company’s initial logo was ripped off from a thumbnail an artist posted on their Deviant Art page. In fact, his entire product line is based off the World of Darkness series, outright plagiarizing it in places. Mykal claims that White Wolf ripped him off, however, which apparently included the intellectual product statements that Mykal’s products shared with those of White Wolf’s products. So blatant was the plagiarism, he got eviscerated on RPG.net when his infringement was discovered, and then he was promptly banned.
When caught, this copyright infringer would first stick to his guns and say that the work was all his or, in the case of the logo, that the artist had been hired to do the work (which was the first the guy on Deviant Art had heard of this terrific job opportunity), and finally he’d come around and say something like “oh, I didn’t trace it. I was just inspired by the artwork. I’ve just always been able to imitate with such precision. I was a prodigy.”
(Yeah, amazing how you can trace with computer precision.)
He even created a number of fake user accounts on his Facebook page, RPGnet, and more to praise his work, claim “they” had seen Mykal working on his original content, witnessed how White Wolf ripped off the new World of Darkness from him, and so on. To get an idea of how this guy uses fake accounts to try and gloss over his infringement, check out the two shill accounts in this consumer complaint about his product. That was pretty much par for the course throughout the entire process of this guy getting called out for his blatant infringements.
(And when you go look at that complaint, by no means are the two accounts that commented, and have only commented on that complaint, shill fake accounts set up by Dark Phoenix Publishing. No siree bob, they are just a couple of honest responses that thought they would drop by and quote prices.)
Unfortunately, all that is left of much of this charade is what myself and others managed to screen capture because Dark Phoenix Publishing made a thorough purging of as much of their replies and comments on their many copyright infringements as they could. And then, in a twist of irony, they posted a copyright policy on their website about how people infringing on their work would not be tolerated. One of their policies even states that merely visiting their site and reading their stuff puts you in a legally binding agreement with them.
The outrageous nature of Mykal’s many claims (he had a movie deal based on his game in the works without yet having produced a single game product, for example), and the degrees by which he infringed on the works of so many other peoples and then lied about it, had to be seen as they unfolded to truly be believed. You can still see the results of my investigations of his works on my G+ page, however.
Because of the infringing nature of their products, they are not allowed to sell through legitimate storefronts (they were turned down for a publisher’s account by RPGNow/Drivethru, for example.) That leaves them selling through bottom tier outlets such as Scribd and their own website. Of course, Mykal still claims he’s selling massive amounts of product and never infringed on anyone — indeed, it is he who is the victim.
Infringement Case Study: Outlaw Press
One of the most well-known and troubling instances of copyright infringement in the RPG industry in recent years, Outlaw Press, a cancer run by a guy by the name of James Shipman, just refuses to die. It keeps going away and popping back up again, dragging the ordeal out for years.
Long story short, Outlaw Press once operated under license for a game known as “Tunnels and Trolls.” James then began doing things like taking content written by fans and publishing it for profit without their knowledge, using artwork he had taken and used without permission (including some concept art from the movie, “Gladiator), and otherwise claiming to own and license copyrights he didn’t actually have any rights to. On occasion, when he bothered to, Shipman would defend his infringement under everything from Fair Use to publishing under license even though the company that owned the rights, and thus would be behind approving any such license, outright said that Shipman did not have any such permission.
The gaming community rose up and started informing people who owned the copyrights of what Outlaw Press was doing, and eventually the company was shut down as a result. However, James would pop up again and again later, selling the same products under new accounts as fast as people could have Amazon and Lulu yank them down.
James and Outlaw Press have been quiet for some time now, but I’m sure we haven’t heard the last of them. You can’t keep a guy like this away short of chemotherapy.
If you want to read a more detailed version of the sort of scum is behind Outlaw Press, go to Google and search for “Outlaw Press Infringement“.
Infringement Case Study: Mongoose Publishing is Duped
For their licensed Conan RPG, Mongoose Publishing was releasing a boxed set of the city of Shadizar, including a map. Well, it turns out the artist commissioned to do the map had run into a rough spot in his personal life and, instead of doing the map himself, he ripped off a free map owned by Wizards of the Coast. The product went to print without being caught until it was brought up in Mongoose’s own forums by an unhappy customer.
Clayton had a pretty good reputation to that point, but his professional website has long since disappeared and he hasn’t been heard from in the industry since.
There are, of course, more instances of copyright infringement we could look at, but this post is already growing way too long, so I’ll wrap it up and save the rest for another post about copyright myths.