In this second Copyright Infringement Q&A, we respond to your questions by taking a look at two more areas in which copyright law is sometimes misunderstood.
Q. I put a disclaimer on my YouTube video that I don’t own the material—how come my upload keeps getting denied?A. This is a common misunderstanding, but easily explained. To people not familiar with copyright law, it seems logical that if you’re not claiming that you own the work, it isn’t copyright infringement. However, despite your good intentions, disclaiming the ownership of the material does not make using the material without permission legal.
According to the following selections from the US Copyright Office’s publication on copyright basics [emphasis mine]:
Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive rights to do and to authorize others to do the following:
- reproduce the work in copies or phonorecords
- prepare derivative works based upon the work
- distribute copies…of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio-visual works
- display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
- perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission
You’ll notice that nowhere does the law mention anything about disclaiming ownership or giving the true author explicit credit—that is simply not a factor with respect to copyright infringement.
Bottom line: With certain exceptions (including Fair Use), the reproduction of a work without permission from the copyright holder is illegal.*
Other notes: Take a look at our previous blog on copyrighted material on YouTube for a look at an interesting direction some studios are moving with regards to material used without permission.
Q. Is it legal to create and distribute sheet music of popular music? Does it matter if I sell it or give it away?
A. To answer this, we need to look again at the concept of a “derivative work,” a new work that was based on a previously copyrighted work. It’s clear that without the original music, your sheet music never could have existed—it’s directly based on the music.
Now, if the music for which you’re creating sheet music is in the public domain (if the copyright has expired, for example, of if it was specifically dedicated to the public domain), you may create and distribute as much sheet music as you like. But, if the original copyright is still valid as with most popular, semi-recent music, we need to look at the law.
If we look to the excerpt from the US Copyright Office’s publication above, we find [emphasis mine]:
[The] Copyright Act generally gives the owner of copyright the exclusive rights to do and to authorize others to…prepare derivative works based upon the work.
From this straightforward explanation, we see that the original owner must give permission.
Bottom line: Whether you make a profit off of your sheet music, or whether you distribute it for free, you must have explicit authorization from the copyright owner to prepare derivative works, including sheet music.*
*Other notes: There are some exceptions to this rule. Fair Use is one of these exceptions, allowing for a limited use of copyrighted material, without requiring permission, when used for educational, critical, or journalistic purposes. Unfortunately, there are no set rules on this; each specific case must be looked at and ruled upon by the courts.
[This was Part 2 in our two-part Copyright FAQ series. For part one, please see “What Is Copyright Infringement? Part 1“.]