• ashlie major

Does writing an “I don’t own the rights” disclaimer actually do anything?

Updated: Dec 9, 2020

What Is Copyright Infringement?

First, I will explain what a copyrighted work is. According to the Copyright Act, copyrighted works include “literary, musical, dramatic, and choreographic works, pantomimes, pictorial, graphic, or sculptural works, including. . . individual images of a motion picture or other audiovisual work.” Copyright laws were enacted to protect an author of original works from others using and profiting from their work without the author’s permission.


Copyright infringement occurs when a person violates any of the exclusive rights of the copyright owner. . . or of the author.”


LegalZoom illustrates well how one can infringe on a copyright by using the example of a song recording. A copyright would exist for songwriters on the lyrics they’ve written. Songwriters often allow artists to record the lyrics they’ve written. Usually there is an agreement outlining the permission grated to the music artist to record the lyrics, thus avoiding copyright infringement from the music artist.


If another person wanted to record the same song without first asking the songwriter for permission, that would be copyright infringement and the songwriter would have an actionable copyright infringement claim against the that person.


Other examples of copyright infringement as detailed by LegalZoom include:

  • Downloading movies and music without proper payment for use

  • Recording movies in a theater

  • Using others’ photographs for a blog without permission

  • Copying software code without giving proper credit

  • Creating videos with unlicensed music clips

  • Copying books, blogs or podcasts without permission

  • Anything where you are copying someone else’s original work without an agreement

Why is the disclaimer so commonly used?

Many people use the disclaimer because of a misunderstanding of copyright law and what that disclaimer actually means. Most use the disclaimer to gain immediate access to use something that they have no rights to, without first getting the author’s permission. Instead, the disclaimer is used in replacement of getting permission and serves the purpose to “justify” the use. Unfortunately for the infringer, such disclaimer does not relieve a person of liability for stealing copyrighted content nor is it a replacement for getting permission. Though the use of an infringement disclaimer in most cases may be unintended, intentions alone are not enough to justify the infringement.


As Medium points out, “anything you say, use, or write on the internet can & will be used against you.” This would include the infringement disclaimer you posted in your YouTube video description. (I see you.) Any infringement disclaimer you choose to post can be used against you should someone sue you for copyright infringement. Take my advice and skip it altogether.


Do not use an infringement disclaimer—cool. What should I do instead?


Try a fair use copyright disclaimer.

Well, depending on how you use the copyrighted work, it might be free for you to use without the need to gain the owner’s permission. Here’s an in-depth explanation of the fair use doctrine for your reference. If you think that your use of the copyrighted work falls under the fair use doctrine, then you may want to think of using ‘fair use disclaimer’ instead.


Check out this one found on the Journal of Science and Technology Law website:


FAIR-USE COPYRIGHT DISCLAIMER


“Copyright Disclaimer under section 107 of the Copyright Act of 1976, allowance is made for “fair use” for purposes such as criticism, comment, news reporting, teaching, scholarship, education and research.


Fair use is a use permitted by copyright statute that might otherwise be infringing.”

You can find a longer version of a fair use disclaimer here, though it would not be necessary for one social media post.


Or, get permission to use the copyright owner’s work.

If you know who the copyright owner is, you can contact the owner directly or through the appropriate channels. If you do not know who the owner of the copyright is, you can search the record of the Copyright Office.


Conclusion.

Whatever you do, DO NOT write a copyright infringement disclaimer. It does not protect you, and in the worst-case scenario, will be used as evidence to show that you have infringed on another owner’s copyright.

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