We thought it was about time to set the record straight and debunk the most common copyright law myths.

The meaning of the copyright symbol ©

Myth: If no copyright symbol © is present then I can use the material.

Reality: This is not the case! Around the world, the copyright symbol is a unique identifier that material is copyrighted, however, in Australia, the symbol itself does not need to be present for protection to exist. Every piece of creative material is protected, regardless of whether the copyright © symbol appears on the work since copyright protection in Australia is automatic as soon as the written or artistic work has been created. There is no need to register or apply for copyright protection. The only requirement is that the work is in a material form or documented in some way. For example, saved to a CD or a handwritten score. The work does not need to be published to be protected by copyright law and it does not need to be considered ‘good quality’.

I have a great concept that no one can copy because copyright law protects my ideas

Myth: Copyright law protects all types of creativity, including ideas.

Reality: Unfortunately, copyright laws do not protect ideas themselves, only the expression of ideas. That is, the way something is written, the way something sounds and the way something looks. So, if you have an idea for a new cookbook that could be a bestseller, whatever you do, don’t tell anyone about it – just start writing!

I only replicated a small portion of the work, so it is not considered a copyright infringement

Myth: You can copy another person’s work, provided you only use less than 10% of it.

Reality: There is no magic number. The test is whether a substantial or integral part of the work has been copied. In practice, this can boil down to even a few bars of music.

Prior to the release of his hit song, ‘Somebody That I Used To Know’ in 2011 Wally De Backer (aka Gotye) sought a music licence which provided that all royalties would be split 55/45 with the estate of the deceased musician, Luiz Bonfa.

Listen to the first 5 seconds, of Bonfa’s track ‘Seville’ and the introduction to Gotye’s song below to hear why:

https://www.youtube.com/watch?v=QpYsxwD4Uc0

Although these few seconds cost Gotye millions of dollars in royalties, the licence that granted him permission to do so saved him an ugly copyright lawsuit, millions of dollars in damages and legal fees as well as a damaged reputation.

Whether it’s a guitar hook, two bars of music, or a sampled design, always seek permission from the copyright owner before using any material that you did not create.

If it is published on the internet, then I can copy it

Myth: The internet is a public domain. Anyone who publishes information or content online has waived their copyright ownership.

Reality: Using the internet as a platform to publish creative work does not diminish an author’s or creator’s copyright protection. Regardless of whether work is published on the internet or in a library book, copyright protection still exists. Check for guidelines on how you can use content on a website in the Terms & Conditions. This will also tell you whether any copyright protections have been waived.

I’m going to film a parody of Guy Sebastian’s latest song on Bondi – it’ll be fine because it’s funny and everyone does this sort of thing

Myth: It’s not Copyright infringement if I’m doing it for entertainment purposes.

Reality: Although there are a number of defences that make provision for the use of certain material, these defences are limited. If the work has been used for the purposes of research or study, to report the news, to critique a work or to create a parody, or if the work is being used in a private, domestic context it may fall under ‘fair dealing’ exceptions.

If you wish to copy part of a book for the purpose of critiquing it (a valid defence under copyright law), your use must be a fair dealing and you must credit the author. This means that if there is no need to copy the entire book, and if you could use only small parts of the book to achieve the same purpose, a court may find you engaged in an unfair dealing and you may be liable for copyright infringement.

The Wrap

All in all, it’s important to be wary of what you read on the internet. Remember to follow Gotye’s lead and always err on the side of safety lest you infringe the creative rights of another person.

When it comes to copyright law, it is much easier to seek permission than to ask for forgiveness.

What common copyright myths have you stumbled across on the internet? Think we’ve missed anything? Let us know in the comments!

In the latest music industry lawsuit to hit headlines, Bruno Mars and Mark Ronson are being sued for copyright infringement by 80s electro-funk band Collage, according to TMZ.

Collage claims that the hit track “Uptown Funk” released by Bruno Mars and Mark Ronson in 2014 is a thinly veiled replica of Collage’s 1983 hit “Young Girls” and that the duo reproduced the song’s rhythm, harmony, melody and structure.

It’s not the first time Ronson and Mars have faced legal action over “Uptown Funk”. Earlier this year, The Sequence argued that their 1979 song, “Funk You Up” had been copied, but did not pursue legal action. Last year, writers from The Gap Band successfully joined the list of songwriting credits on “Uptown Funk” for its similarities to their 1979 hit “Oops Upside Your Head.”

According to the complaint (via Pitchfork)

Upon information and belief, many of the main instrumental attributes and themes of “Uptown Funk” are deliberately and clearly copied from “Young Girls,” including, but not limited to, the distinct funky specifically noted and timed consistent guitar riffs present throughout the compositions, virtually if not identical bass notes and sequence, rhythm, structure, crescendo of horns and synthesizers rendering the compositions almost indistinguishable if played over each other and strikingly similar if played in consecutively.

Mars and Ronson have previously listed early 1980s Minneapolis electro-funk soul music as among key influences that inspired the song “Uptown Funk.”

Collage are seeking damages and profits.

Listen to side-by-side comparisons of the two songs below:

Too close to call? You be the judge.

h/t Pitchfork.

Further Information for Musicians

To find out more about your options in Australia where another musician infringes your copyright:

• Legal Rights Where Your Song Is Used Without Permission

We are lucky to live in a country where copyright protection is automatically afforded to creative works, a saving grace that makes Australia’s copyright law imperfections almost palatable.

For musicians, the stakes can be high when it comes to copyright infringement. Contrary to what many Australians may think, there is no such thing as the innocent use of a song, nor is it a ‘victimless crime.’ Most artists derive much of their annual income from royalties, so when an individual or corporation uses a song without permission, without a music licence or without paying royalties, it deprives that artist of a reliable source of revenue.

For Australian musicians, if someone uses your song without your permission it is not only an infringement of your moral rights as a creator of that work but also your economic rights.

So, what are your legal options if you discover someone using your song without your knowledge or permission?

Copyright And The Music Industry

In any situation where your music is broadcast, performed or reproduced, you have a right to royalties.

Copyright protection is automatic in Australia as soon as your original song has been written or recorded.

There are three main situations where copyright infringement of your music can occur.

1. Where a song is used by another person, or corporation, without your permission and without paying a music licence.

As recently as last year, NSW Premier Mike Baird unwelcomely discovered that even politicians are not impervious to making copyright infringements.

Baird found himself in hot water over the unauthorised use of R.E.M’s song ‘Everybody Hurts’ in a YouTube take-off of Jimmy Kimmel’s Mean Tweets series. Baird made use of the track without seeking permission or paying a music licence. YouTube removed the clip after Warner Chappell, the band’s publisher, made a copyright claim overnight.

2. Where another musician uses a substantial part of your song without your knowledge or permission and without paying for a music licence.

For example, by using a substantially similar melody, key, beat, harmony or song structure.

In 2010, Men at Work songwriters Colin Hay and Ron Strykert were involved in a high-profile, expensive and drawn out case over the similarities between their famous song ‘Land Down Under’ and the flute line in the children’s song ‘Kookaburra Sits in the Old Gum Tree.’ The Federal Court’s decision in favour of Larrikin Music (the copyright owners of ‘Kookaburra’) reinforced that musicians can be liable for plagiarising a substantial part of another musician’s work without approval.

3. Where another musician samples part of your song without your permission and without paying a music licence.

Vanilla Ice became the centre of a copyright infringement claim for sampling Queen & David Bowie’s ‘Under Pressure’ in his hit song ‘Ice Ice Baby’ without consent and without a music licence.

The case was settled out of court as it was clear that Vanilla Ice had merely altered the rhythm of the baseline in an effort to avoid giving credit, paying royalties, seeking permission and a music licence.

A Run-Down Of Your Rights

As a musician, you have three main rights:

1. Reproduction

This allows you to reproduce the music you have created in any format.

2. Performance and communication

This right is exercised whenever your music is broadcast on TV or radio, when you perform a song live or distribute your music on the internet.

3. Adaptation

This protects your status as the sole person who can create derivative works, such as music sampling, unless another person has your permission or a licence to do so.

As a creator of music, you not only possess copyright ownership of the music itself but also in the lyrics and any sound recording of your music.

You also own moral rights to your music, including the right to have your work attributed to you by name, the right to stop anyone else attributing your work to them and the right to protect your music from being used in a way that hurts or damages your reputation.

As An Artist, What Does This Mean For You?

If you discover that someone is using your musical work without your permission, you have the right to seek recompense.

Here’s what you can do to stick it to the infringer:

• Firstly, identify who used your song without your permission.

If it is a small team of indie filmmakers or school students making a project for their media class, it may be wise to let it go and take a ‘give-a-little get-a-little’ approach.

On the other hand, if it is a large corporation or mainstream media outlet who is profiting from your blood, sweat, and tears without a licence and without paying you the royalties to which you are entitled, it may be worthwhile taking things further and seek a legal remedy.

You may wish to seek an injunction, which prevents any further unauthorised use of your music, or damages as compensation for the loss you have suffered as a result of the infringement. In either of these scenarios, you will need to pursue legal advice from a lawyer who specialises in entertainment or copyright law.

They will advise you on your rights, whether your claim is worth pursuing, the best course of action based on your circumstances and possible remedies you may be awarded based on the loss you have suffered.

• Secondly, ascertain how much of your song has been used.

Copyright is infringed only where a substantial part of your copyrighted music is used without your permission, and where this infringement is not covered by any of the fair dealing exceptions.

The Copyright Act balances your rights as the copyright owner with the general public allowing the general public to use a substantial part of copyright material without first seeking your approval. This only applies for certain approved purposes called ‘fair dealing’ defences.

This means that if someone uses your music for any of the below purposes, then they have a defence to your copyright claim:

• research or study
• criticism or review
• reporting news
• giving professional legal advice; and
• parody or satire

If the copyright infringement does not fall within any of the above purposes, it is important to contact the person whom you believe has infringed your copyright as soon as possible after you become aware of the infringement.

• Thirdly, you may wish to send an initial letter of demand.

Your letter should make that person aware that you own exclusive rights to your music, that they have infringed your rights, and how you would like the situation resolved. You should also include a date that you would like to receive a response by, and that you have the right to commence legal proceedings if an adequate response is not received within that timeframe.

Before sending your letter, it is not only important that you consult a legal professional, but also that you consider the outcome you would like to achieve.

For example, would you like the person who has infringed your copyright to:

Simply stop using your music? This is a simple request if your music is being used on a website, for example, as it can be removed quickly.

Continue using your music, but to pay a licence fee?

Pay compensation to you for the loss you have incurred as a result of the unauthorised use of your music?

The Arts Law Centre of Australia has a downloadable template of a letter of demand.

Groundless Threats

Before sending a letter of demand, or making any claims that someone has infringed your copyright, it is critical that you seek legal advice.

If you send a threatening letter and the person has not actually infringed your copyright, this can be considered a groundless threat. This means that the person you have accused of infringing your copyright can turn around and sue you for making an unsubstantiated threat of legal action.

What Can I Do To Protect My Music In The Future?

As a first step, you can set up a Google Alert to receive daily inbox alerts whenever your music is being mentioned or used on the internet. This will help you to keep track of who is using your music, when it is happening and where it is happening without your consent.

To protect economic rights to your music, you can register with a collecting society.

These bodies oversee payment of royalties, look after your copyright and grant permission for others to use your songs (either by performing them or recording them) if they pay a fee.

Australia has a few main collecting societies:

• Australasian Performing Rights Association (APRA) which covers situations where another artist wishes to play your songs live.
• Australasian Mechanical Copyright Owners Society (AMCOS) which covers instances where someone wishes to make their own recording of your song.
• Phonographic Performance Company of Australia (PPCA) or the Australian Record Industry Association (ARIA) which covers sound recordings.

You may also wish to consider getting an International Standard Recording Code (ISRC). This is the international identification system for sound recordings and music video recordings which provide a method to automatically identify recordings for royalty payments. In Australia, this is administered by ARIA.

Conclusion

The area of copyright law can be a minefield at the best of times.

For musicians, the first step to protecting your rights is understanding them. Knowing what your options are if you believe they have been infringed by an individual or corporation, and when to seek legal advice, is the best way to secure a favourable outcome.

Bear in mind that there are time limits for commencing legal proceedings in copyright cases, so it is important to see a lawyer as quickly as possible if you suspect your copyright has been infringed.

Further Information

Arts Law Centre – for more information on your rights as a musician and access to legal professionals specialising in copyright law.

To learn more about your rights as a musician visit:

• Music Rights Australia

To find safe and licenced content online visit:

• Digital Content Guide

For a list of legal digital music content providers in Australia and internationally visit:

• Pro Music

To get in touch with a legal professional specialising in entertainment law visit:

• Marque Lawyers (NSW)
• Creative Legal (WA and Vic)
• Studio Legal (Vic)
• Media Arts Lawyers (NSW and Vic)
• Shaun Miller Lawyers (Vic)
• Simpsons Lawyers (NSW)
• Sanicki Lawyers (Vic and Qld)
• McCormicks (Qld)

The internet is littered with bears.

The difference is that web bears are not after your food.

They’re after your content.

A seemingly harmless way to access and download pictures, Google Image Search has become a popular ‘go to’ solution for a range of individual and company needs. But without proper permission, or licensing a person or company cannot use your photo without your approval.

Here we show what to do if you meet a bear consuming your content, how to fend off a grizzly attack on your photos and other options that may be available to you.

How to survive a cyber attack

When faced with a threat to your content your chosen course of action will depend on your circumstances and the ideal outcome you seek.

Below is a checklist with some suggested strategies:

1. Identify the bear quickly upon your encounter

Is it a ferocious grizzly (a corporation making a profit from your image) or a lone black bear (a private blogger)? Recognising the species of offending animal early will ensure your next steps are not only deliberate and informed but also guarantee your survival.

If you suspect someone is using your photo without permission, first locate the name of the individual or company. You can do this by entering the website name into whois.net. This will arm you with information on the site’s owner/administrator.

Many amateur and professional photographers now take proactive measures to protect their content by undertaking regular reverse searches using Google Image Search. A detailed tracking document that records the date, website, name and contact details of sites using your photos without permission will give you a number of options and also streamline the legal process should you decide to take things further.

2. Deal with the attack as calmly as possible

Avoid making any sudden movements. Bears don’t like surprises.

Aggressively tweeting, facebooking, emailing or phoning will only antagonise the giant.

Step back from the situation, moving slowly and deliberately. Think about the outcome you would like to achieve before sending an initial email.

Below is a short template you may wish to consider using:

Dear [insert relevant name]

I trust this note finds you well.

I have to draw to your attention a matter of concern to me.

I have noticed that an image of mine has been published on your [website / merchandise / advertisement / social media / blog] without my knowledge or approval.

As the sole copyright owner of this image, I would appreciate if you could [remove the image from your website / credit the image with my name].

I regret to have to advise you that if you continue to use my image without my permission, I will be forced to pursue legal action.

Regards,

[insert your name]

3. Pick your battles – Know when to play dead and when not to

In Australia, copyright protection is automatic as soon as your original photo is captured.

If you take an image, you own it.

There is no formal step (such as registration in the US) required to protect your photo under copyright law. Most countries including Canada, China, France, Germany, the UK and the US grant copyright protection to Australian work under international treaties.

Lone opportunists

While no case of your picture being used without permission is ideal, it may be a case of genuine mistaken identity. Early identification means you are in a better position to decide on a course of action.

In most cases it’s likely that an individual has inadvertently consumed your content without realising they were infringing your copyright.

If this is the case, a few strategic displays such as speaking in a low, calm voice and slowly raising your arms in the air to make you appear bigger should make the animal back away.

A simple email or social media message requesting your desired outcome will ordinarily suffice.

Most private individuals will be horrified to hear that they have used your content or published incorrect information and happy to either correctly credit the source; include a live link back to your site; or remove the image altogether.

@MsMarmitelover sorry will do now.

— Rachael Lander (@strungoutblog) November 3, 2014

In Australia, although there is little guidance on what constitutes copyright infringement in the digital age, a recent Federal Circuit Court case established that being ignorant to the owner or need to correctly attribute a photo is no defence to copyright infringement.

This means that it is not possible for someone to argue that they did not know they were infringing copyright regulations by using your photo.

Knowing consumption

If a commercial entity or a mainstream media outlet has knowingly infringed your copyright and is profiting from unauthorised consumption of your photo you may wish to take things further by sending a bill for compensation or seeking damages.

Many professional photographers are successfully suing corporations for breach of copyright and loss of profits for use of their images on websites, magazines, books, t-shirts, advertising or merchandise without seeking permission or paying licensing fees.

To ensure you’re still standing after a face-off with a grizzly corporation you will need to significantly increase your arsenal by contacting a lawyer who specialises in copyright law.

Copyright lawyers hunt bears for a living.

They will advise you on your rights, whether your claim is worth pursuing, the best course of action based on your circumstances and possible remedies you may be awarded based on the loss you have suffered. This could mean an injunction that stops the person or company using, or continuing to use, your image or damages as compensation for the infringement.

The court will take into consideration the seriousness of the infringement and whether it was highly profitable in assessing the amount of damages to award.

5. Exploit the bear’s weaknesses

Understanding your basic rights puts you in a position of power to protect yourself against potential aggressors.

Plan your best possible survival strategy and fight to survive.

In Australia, if you are the owner of copyright in an artistic work (such a as a photo) you have exclusive rights to:

• reproduce your work;
• publish your work; and
• communicate your work to the public.

Copyright protection lasts for 70 years after the photographer’s death.

The Copyright Act also provides you with three moral rights (separate from copyright protection) over your work, including:

1. right of attribution of authorship (the right to be named as the author of your work);
2. right against false attribution (the right not to have someone else named as the author of your work); and
3. right of integrity of authorship (the right not to have your work detrimentally affect your reputation).

If your moral rights are infringed, you may seek damages, an injunction or a public apology.

6. Move quickly and outsmart would-be web bears

While there are a range of remedies available to right a loss suffered from unauthorised use of your pictures, it is worthwhile exploring preventative measures to reduce your risk of an unpleasant encounter.

Some strategies you may wish to consider are:

• clearly watermarking images with your copyright details. For example, © [your name/brand/site/year]. While this strategy is not 100% effective it does require an additional layer of effort, such as cropping, which will go some way towards discouraging opportunists;
• only posting low resolution versions of your photos. This makes your content less attractive as a potential target;
• if you own a website, try disabling right click download options from your pictures. Again, this approach is not completely effective but it does serve as a clear warning;

Julianna Koh-Blackwell, an award-winning Sydney-based pet photographer uses the ‘disable right click download’ approach.

A ‘right click’ warning on Blackwell’s site.

If you are based in Australia, you may also wish to consider registering your images under the US copyright system – particularly if they are likely to be used overseas. This serves to remove any question of ownership rights if a US-based publication or company happens to use your image.

Happy endings

In the digital age, unpleasant encounters with opportunistic internet feeders are not just likely … they are inevitable.

It may be a case of an individual accidentally foraging for content in the wrong place, or it could be something more serious.

In either case, how you choose to deal with the situation will largely depend on the outcome you seek.

Stay informed and take proactive steps to protect yourself and your pictures.

Think you’re ready to tackle a bear head on?

• Make things easier for yourself and seek out a professional based in your area; or contact
• Arts Law Centre – for more information on your rights as a photographer and access to legal professionals specialising in copyright law.

What experiences have you had with people using your images online and how did you deal with it? Tell us about it in the comments section below!