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. This stands despite how accessible reliable copyright sources are online.

But why?

Because unreliable copyright information sources are just as easy to access as the correct resources. The former are also more prolific because so many people continue to spread copyright myths.

The perpetuation of copyright myths is not something that remains a problem because anyone actually wants to misrepresent the facts. It remains so because most copyright myths are self-serving and seemingly helpful. They represent what so many people want to believe about copyrights. Why? Because if most copyright myths were true, they would work out in the favour of such misguided believers.

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. I also recognize that copyright myths are a dangerous blight that can lead the unaware or misinformed into legal trouble through the believe they are a truthful and accurate representation of fact.

After all, why would people keep passing copyright myths around if they weren’t true, right?

So, here 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 myths in some countries. However, even in such exceptions, you should consider better options. In the case of poor man’s copyright in the UK, for instance, consider something more reliable because of how easily it can be faked.)

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. The intent is creating a dated, sealed record attached to your manuscript via the mail stamp. Variations on this theme include:

Getting a sealed envelope notarized, leaving it in a sealed bank or the like

Emailing it to yourself so you get a date notice attached to the email

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 copyright myth that refuses to lay down and die. It doesn’t help that some lawyers join the bandwagon of misinformation. They argue from a position of assumed authority that others easily accept.

When (Non-IP) Lawyers Give The Wrong Opinion on Copyright

Let me tell you a story of just how contested this topic can be. And, to be honest, I do so knowing I can easily come across as arrogant and argumentative in this story. (I can get a bit snippy and aggressive when I face pushback from people who should know better.) But stories like this are, in my experience, not uncommon. They are important so we can better understand just how deep the misunderstanding and misrepresentation of copyright can run.

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?

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.) In this entirely fabricated hearing, a manuscript in an envelope was the only evidence the made-up writer claiming infringement was able to present.

(Did I mention the lawyer set himself in the position of judge in this imaginary scenario?)

As judge in a fake case he was making up to “prove” his point, this lawyer ruled the poor man’s copyright envelope stood as sufficient evidence to allow the infringement case to go forward. In so doing, he awarded the party with the poor man’s copyright twice their legal costs as part of the evidentiary hearing’s judgment.

(An absolutely surprising outcome!)

Putting 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. What happens 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.

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 the content’s creation date. 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, let’s assume no one brings up this rather important point. Let’s assume things move on to actually trying to disprove the envelope’s and content’s validity in court.

I’m sure the opposing lawyer will point out one can easily open, stuff, and then reseal an envelope. (This includes envelopes used by courier services, so long as they use glue.) Also, you can mail empty and open envelopes and parcels while overpaying postage as though to accommodate 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 (up to the weight I’d overpaid for) and seal it up. 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. Really, I don’t understand why people keep buying into these copyright myths.

Depending on how an email is sent, you can easily have the date altered by the user. You can also fake an email’s date by sending 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 and then re-save the file. The file containing the relevant content will 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 on 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.

Put aside all the laymen writers, bloggers, artists, and musicians who swear by copyright myths like poor man’s copyright. What remains 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 ever working.

… and so on.

Even most of the various copyright offices I’ve previously linked to officially address it in some way. These resources frequently state their respective copyright law doesn’t recognize poor man’s copyright or make any provisions for it.

So, stop believing everything you’ve heard about the copyright myths regarding poor man’s copyright. Do your due diligence 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

The following is one of the copyright myths I’ve found circulating among publishers with disappointing frequency. The derivative content aspect of copyright law is often misunderstood because it is so subjective.

A derivative creation is when you use someone else’s copyright-protected content as the basis for making your own content. The latter 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 former’s characters would be derivative work. The story itself would be considered the fan-fiction writer’s copyright, not whoever holds the copyright to the show, but the characters, world, etc. remain owned by the show.

The default position is that the creator of the derivative work owns the copyright to their own work. However, this is contingent on adding sufficient originality for the new creation to be ruled separate from the inspiring work. Still, the inspiring content’s copyright holders may want to contest the derivative work’s copyright status of derivative work. In such instances, mediation or a court may ultimately find the secondary creator is indeed infringing on the original copyright.

If it is determined that infringement exists, the derivative work’s creator may be required to provide redress in a number of ways. The derivative content may need to be withdrawn from public access (e.g., books recalled) or damages may need to be paid. The latter is common when the original copyright owners can show the derivative work’s existence has cost them potential revenue. Transferring ownership of the derivative content over to the other party may also occur in the comparatively rarest of cases.

When is Derivative Work Infringing on the Original Work?

There is no hard, definitive formula to determine when a derivative work constitutes an infringement upon the original copyright. (There are many claims to the contrary, however, but more on this later.) If you look for it in any given copyright law, you won’t find such a formula. Why? Because much of what copyright law covers — writing, music, and art — is highly rooted in the subjective. 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 that instance.

Even if you own a derivative work’s copyright, you can’t always do whatever you want with it. There are frequently conditions and qualifiers in play. Once you try publishing a derivative written work, for instance, 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 regarding how it is applied in cases of derivative content. Avoiding infringement tends to become more difficult if you are trying to make money off your derivative work, even under a Fair Use claim. This is because you’ve provided an argument that your derivative copyright dilutes the original content’s ability revenue potential. In other words, it can be argued that commercializing your derivative work makes it more difficult for the original work to make money. You also create a potential argument of negatively influencing the original’s branding, 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 becoming the property of the original copyright owners is another commonly shared copyright myth among publishers. This includes 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 putting stock in certain copyright myths. Indeed, because of their experience and talent, publishing professionals are often in a role to make decisions that can put creative projects in a position of vulnerability to copyright infringement by believing these myths.

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, fan-based digital painting of Darth Vader that Disney can come along and use it on their next movie poster? Do they believe Disney can do this 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 forms of) art, stories, music, and so on based on someone else’s copyright is actually considered to be the copyright of the creator of the derivative work by merit of its own original qualities. It doesn’t matter that Disney owns the rights to Dart Vader’s likeness in our example. Disney does not gain ownership/copyright over 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. Disney could also argue 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. There is still no objective pass-fail threshold that determines the outcome of these situations with absolute consistency. Yes, there is a 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. This myth proclaims you can’t infringe on someone’s copyright if you’re not making any money from your derivative 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 this company had published art she had submitted despite refusing to pay her. According to her, the publisher claimed that because the art depicted something they owned the copyright to, they owned her derivative 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. However, it and my previous example of another RPG industry veteran doing something similar illustrate 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. Such confusion, 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. This myth is especially common among 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 that you need only change the original by a certain percentage. If this required percentage is met, such copyright myths assert, the derived work cannot be considered infringement. (Google “copyright 10%” to see what I mean.) This percentage varies, 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. Fair Use (nor any other part of copyright law) does not provide any objective benchmarks regarding derivative and altered works that determine 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 — a.k.a. “Filing Off the Serial Numbers”

You may have read this far thinking I’m entirely against derivative works. This couldn’t be further from the truth. I’m all for using derivative works and accepting them as original creations. However, I add the caveat that 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 the subject.

There is a common process by which another party may legitimately produce content related to someone else’s copyright while enjoying the benefits of copyright protection. I refer to this process as “filing off the serial numbers.” This entails stripping away all proper names, direct visual cues, and other copyright-protected aspects of the original source content. One then builds the derivative content with sufficient nods and winks in the direction of the original source material. However, the content never directly comes out and states “my stuff is just a copy of that stuff, there.”

Filing the serial numbers off of someone else’s copyright is a tricky process. I don’t suggest you do it without consulting an IP lawyer and being able to move forward with full confidence your processes and goals are on the up-and-up. Even then, given the mutable nature of this aspect of copyright law, the source material’s copyright owners could still decide to pursue action against you. This 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. If they bring legal action against you, failing to present a convincing argument that your derivative content has sufficiently diverged enough from the source material to now be considered an original work could be costly.

Case Study: OGL Barbarian

To show you what I mean, we’ll look at a series of products my company publishes. Misfit Studios’ first product line was the OGL Barbarian series. It was intended 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. I had to do so with subtlety. I started with 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 argument’s sake, let’s say the original source material had a city-state in it known as “Hocknack, City of Horses” ruled by a society of Mongol-like horsemen. I could not use the name “Hocknack” in any of my own products, as that would be infringing on the source material. However, I could refer to its inhabitants as “horse nomads” and the only actual city within their territory as the “City of the Horse Riders.”

Not an exact match, but close enough that people familiar with the source content should see the connection.

It also helped that the original source material included names and concepts in the public domain. This meant I could use them openly, as well. For example, the ancient civilization of Atlantis and its people was used in the original works. Because Atlantis was created by Plato thousands of years ago, any claim to copyrights or trademarks in the given context wouldn’t exist. The city and its founding concepts are 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: Thanks to Peter Casey for raising a point regarding the overall concept of Atlantis. It is in the public domain because of Plato’s works. Other representations of it can still be protected by copyright, however. I could not copy images and the like from the animated movie, “Atlantis,” without risking infringement because it is a unique representation, for example. 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 left the implied relationship with the source material to connect the remaining dots for me.)

Because the original game and my OGL Barbarian products were both published under the Open Gaming License (OGL), making my product mechanically compatible with the former was much easier. The OGL also gave me additional protection in the eyes of US copyright law. Because both I and the other publisher were bound by that license’s terms, I could sidestep around some aspects of copyright law. This sidestepping allowance help in ways that were important to how I was designing and presenting my derivative work.

One of the OGL’s biggest setbacks is a restriction from openly declaring your product to be compatible with someone else’s OGL product 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.

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. However, it was a risk nonetheless. The products’ derivative nature meant they never enjoyed ironclad protection, as many copyright myths would have one believe. No matter how carefully I obfuscated relationships to the source content, I was still always exposed to legal action. 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.

That being said, let’s look at 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

I’ve already said copyright myths concerning derivative works are largely due to misunderstanding. These misconceptions are born of the incredibly subjective nature of what guides such content between infringement and protection under copyright. As a result, there are still some derivative 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 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.” (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.) I and several others took Dark Phoenix Publishing 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 I would attribute to believing the copyright myths surrounding derivative works. At least sometimes, however, the guy behind this company seems to have 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. His posts were 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 photoshopping someone else’s images and claiming it was his. 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 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 White Wolf’s. So blatant was the plagiarism, he got eviscerated on RPG.net when his infringement was discovered. He was promptly banned.

When caught, this copyright infringer would first stick to his guns and say that the work was all his. With the logo, he claimed artist had been hired — which was the first the guy on Deviant Art had heard of this terrific job opportunity. 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. These fake accounts claimed they’d seen Mykal working on his original content. They even 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 I and others managed to screen capture. 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 is Outlaw Press. This “company” is a cancer run by James Shipman, and it 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 a 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. He used artwork taken and used without permission (including some concept art from the movie, “Gladiator.) This sleaze also 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 a license. The latter claim was made 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. 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. As a result of this stress, 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 up to that point, but his professional website has long since disappeared. 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. I’ll wrap it up and save the rest for another post about copyright myths.

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