By Eric Perrott, Esq.
There is no “30% Rule.”
I work with a lot of clients who are building their brands and their content, and one question I frequently get is “isn’t there a rule where you can copy something as long as you change 30% of it?”
This myth of the “30% rule” is pervasive and widely cited around the Internet, but it is simply false. There is no 30% rule, and any time you copy someone else’s writings, drawings, website, or other creative work, you run the risk of copyright infringement.
Many people think of copyright infringement as piracy or the creation of unauthorized reproductions of a copyrighted work, like a song, photograph, or writing. If you download a TV show, you are making an unauthorized copy of the TV show. However, the purpose of copyright law is to both reward ‘makers’ and incentivize others to create new artistic works, as opposed to merely taking the work done by others and claiming it as their own. Therefore, copyright protection extends beyond just ‘exact’ reproductions and into ‘substantially similar’ reproductions. But how far away does a work need to get before it is no longer confusingly similar?
The Myth of the 30% Rule and Things to Consider
According to internet lore, if you change 30% of a copyrighted work, it is no longer infringement and you can use it however you want. This, as a rule, is false. The truth of the matter is much more complicated.
While different courts have different legal tests, the key to determining whether something is substantially similar will depend on the similarities between the two works in context. This determination also changes depending on the medium.
If an infringer changes every tenth word in an 800-word article, for example, but keeps the perspective of the underlying work, the sentence structure, etc. in place, then it is likely to still be “substantially similar.”
It also depends on how much is copied: single words or short phrases are not subject to copyright protection, as copyright law is not meant to give a monopoly on those items. Also, there is a concept called “merger” wherein the idea and the expression of that idea are merged into one – essentially, if there is only one way to logically express an idea, then no one can claim exclusive ownership of that expression.
For example, the instructions in an instruction manual on how to operate a machine cannot be protected under copyright law – but the advertising and non-instructional materials can. A set of board game rules is not protectable under copyright law, but the ‘flavortext’ and narrative in the rulebook can.
Keep in mind there is a different analysis (called “fair use”) as to when you can use parts of someone else’s work for criticism, quoting, etc. This requires its own in-depth analysis but typically does not cover situations where a copier is attempting to pass off someone else’s work as their own.
Best Practices for Avoiding Copyright Infringement
DO
When writing, read many different perspectives on issues and synthesize your own viewpoint and analysis. If you ultimately agree with an article that has been written, take the main idea and write your own article in your own words.
DON’T
Don’t copy a blog post, change a few words, and pass it off as your own content. If you are quoting a blog post, quote thoughtfully and only take as much as needed to make your point. Otherwise, you could be exposing yourself to liability. Using an “article spinner” that changes some of the words of a work you don’t own can expose you to significant liability.
DO
Be skeptical of who you hire for content. “I didn’t know what my contractor/employee was doing” is not a defense to copyright infringement. You may be held jointly and severally liable for the infringement, regardless if it was your contractor that was the actual infringer.
DON’T
Don’t assume that content found on the internet can be freely copied without recourse. Businesses often spend hundreds of thousands of dollars on digital marketing and their advertising text is extremely valuable. Further, for SEO purposes, copies made and posted elsewhere detract from the uniqueness of the content and reduce its effectiveness in driving traffic to the creator’s website.
If you have questions about whether you can use someone else’s content in any way, contact an experienced intellectual property attorney to discuss – and they can help you to protect your own creative works from infringers as well!
Eric Perrott, Esq.
Eric Perrott, Esq. is a trademark and copyright attorney committed to providing high-quality legal services for any sized budget. Eric’s ability to counsel clients through any stage of trademark and copyright development and protection allows him to provide his clients with personalized advice and unique analysis. Eric can be reached directly at: eric@gerbenlawfirm.com. The contents of this blog are for informational purposes only and may not be relied on as legal advice.
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FAQs
What percentage do you have to change something to avoid copyright? ›
How much do you have to change artwork to avoid copyright? There is actually no percentage by which you must change an image to avoid copyright infringement. While some say that you have to change 10-30% of a copyrighted work to avoid infringement, that has been proven to be a myth.
What do you have to prove to sue for copyright infringement choose the most complete answer? ›To prove copyright infringement, a copyright holder must establish a valid copyright and that original material was used illegally. To prove a valid copyright, the plaintiff can produce a copyright certificate or other proof that establishes the date the copyrighted material was created.
How much do I need to change an image to avoid copyright? ›Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent.
How much can you copy without infringing copyright? ›Under those guidelines, a prose work may be reproduced in its entirety if it is less than 2500 words in length. If the work exceeds such length, the reproduced excerpt may not exceed 1000 words, or 10% of the work, whichever is less. In the case of poetry, 250 words is the maximum permitted.
What breaks the copyright law? ›Downloading or uploading copyrighted work without authority constitutes an infringement. Willful copyright infringement can result in criminal penalties including imprisonment of up to five years and fines of up to $250,000 per offense. Copyright infringement can also result in civil judgments.
How do you avoid copyright restrictions? ›- Do not copy anything. ...
- Avoid non-virgin development. ...
- Avoid access to prior design work. ...
- Document right to use. ...
- Negotiate for enhanced warranty and indemnity clauses. ...
- Document your own work.
To establish infringement, [name of plaintiff] must prove two things: First, you must find that [name of plaintiff] owned a valid copyright. And second, you must find that [name of defendant] copied the work's original components.
How hard is it to prove copyright infringement? ›Copyright infringement can be challenging to prove in court. You must show that (1) you are the owner of a valid copyright in the work or have the legal authority to bring a lawsuit and (2) that the defendant actually copied the protectable elements of the copyrighted work without the creator's permission.
How do you beat trademark infringement? ›The most common remedy for trademark infringement is an injunction, which is a legal tool that stops the adverse party from continuing their illicit use of a trademark, or damages, which provides monetary compensation in an attempt to correct the harms resulting from the wrongdoing.
Can I modify a copyrighted image and use it? ›If you edit an image that you didn't create, copyright law still applies. The only way to avoid copyright infringement with images is to create unique works, purchase a license to use an image or find a free-to-use image.
Can I use a copyrighted image if I dont sell it? ›
Copyright protection of images
The original producer of the work also may sell the copyright to another person, who then becomes the copyright holder. Reproducing a copyrighted work without the permission of the copyright holder is illegal. Anyone who does so is subject to being sued for copyright infringement.
Copyright laws for social media are, well, pretty much exactly the same as copyright laws everywhere else. If you want to use an image that isn't yours, you must obtain permission. That might be through a license or through the creator directly.
What are the 4 fair use exceptions to copyright? ›Fair use of copyrighted works, as stated in US copyright law, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
How much content is considered fair use? ›You can use up to 10%, but no more than 1000 words, of essays, articles, or stories, of a single copyrighted work. You can use up to 250 words of an entire poem, or a portion of a poem.
Can you accidentally infringe copyright? ›Using creative works such as a logo, photo, image or text without permission can infringe copyright law. All businesses need to understand how to legally use copyrighted material. If you break copyright law – even by accident – you can face large fines and even imprisonment.
What are 3 things you Cannot copyright? ›Copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks.
What are 2 things that are not covered by copyright laws? ›Not Protected by Copyright:
Titles, names, short phrases and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering or coloring; mere listings of ingredients or contents.
Most people can tell you copyright is about protecting creative works such as books, music, films and art – that is true, copyright protects a lot of material. But there are some things it does not protect, including: material in the public domain. material outside of the scope of copyright.
What are the most common defenses used by those faced with a copyright infringement suit? ›Generally, there are two main defenses that can be raised against a copyright infringement claim: (1) challenging the alleged copyright owner's claim to ownership; and (2) challenging an alleged violation of a right.
What three requirements must be met for copyright protection? ›The three basic elements of copyright: originality, creativity, and fixation. There are three basic elements that a work must possess in order to be protected by copyright in the US: Originality: To get a copyright, a work must be the original work of the author.
What are the basic conditions that must be fulfilled to claim a copyright? ›
The Work Should Be Original
Only original work can be copyrighted. However, for this, neither uniqueness nor quality is required. Even if the work is bad, it is still subject to copyright protection. Similar works independently created are also individually subject to copyright protection.
The most common defenses in trademark infringement, unfair competition and trademark dilution suits include descriptive fair use, nominative fair use, laches, unclean hands and trademark misuse, fraud in obtaining the registration, and application of the First Amendment.
How do I avoid being sued for trademark infringement? ›- Know what a trademark is and its importance. To put it simply, a trademark (or service mark when you are talking about services) is a brand name. ...
- Ensure your proposed trademark is available. ...
- Avoid confusion. ...
- Learn from the mistakes of others. ...
- Most importantly, register your trademark.
- Time is of the essence: do not delay in seeking legal advice.
- Contact: try not make initial contact the claimant until you have sought legal advice. ...
- Capture: relevant evidence.
Drawings based on photographs
The artist of the drawing also has a copyright on all aspects original to his or her drawing. If the base photo is in the public domain, there's only the copyright of the artist of the drawing to consider.
It's important to know that giving credit on its own does not entitle you to use an image. For instance, an image published under an “All Rights Reserved” license (the default copyright grant, unless stated otherwise), means no rights are granted for any use.
Can I legally use pictures from the Internet? ›The only way to legally use a copyrighted image is to obtain a license or an assignment from the copyright owner. “It's online, so it's free, right?” In a word – NO. Online images are protected by copyright as much as a picture hanging in an art gallery is.
Can someone use my name without my consent? ›California has laws in place that protect you from having individuals or companies use your name or likeness for commercial or exploitative purposes without your consent. As a resident, you maintain statutory as well as common law rights in this regard.
Can I print someone else's art for personal use? ›It is not acceptable to use copyrighted work for personal use without the explicit permission of the copyright holder.
Do I own the pictures I take? ›Creators own the copyright to an image the moment they create it—and this applies to digital images just as it does printed ones. In other words, the image doesn't have to be printed or registered with the U.S. Copyright Office to obtain copyright protection.
Do I own the picture I take of someone? ›
Basically, copyright law says that when you take a photograph, you become the copyright owner of the image created. This means you hold exclusive rights to: Reproduce the photograph. Display the image in a public space.
How long does a copyright last? ›As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years.
When can I use copyrighted material without permission? ›How much of someone else's work can I use without getting permission? Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports.
What are five things that Cannot be copyrighted? ›- Information that is commonly known.
- Lists of ingredients, such as formulas and recipes.
- An idea for a novel, book, or movie.
- Business, organization, or group names.
- Domain names.
- An individual's pseudonym, like a pen or stage name.
- Slogans, catch phrases, and mottoes.
For example, in the United States, copyright rights are limited by the doctrine of "fair use," under which certain uses of copyrighted material for, but not limited to, criticism, commentary, news reporting, teaching, scholarship, or research may be considered fair.
How much can I quote without violating copyright? ›Unfortunately, quoting or excerpting someone else's work falls into one of the grayest areas of copyright law. There is no legal rule stipulating what quantity is OK to use without seeking permission from the owner or creator of the material.
How much text can you copy without infringing copyright? ›to copy up to one chapter or 10% of the number of words of a work published electronically. It is a fair dealing to copy one chapter even if it is longer than 10% of the pages or words in the work. Is there a general exception for home copying? There are exceptions for home copying in specific circumstances.
What is the most common copyright infringement? ›Image and text are the two most common types of copyright infringement plagiarism. Whether music lyrics, academic writing, or stock photos, usually using them without informing the owner counts as copyright infringement.
What percentage of copyrighted material can be used? ›You can use up to 10%, but no more than 1000 words, of essays, articles, or stories, of a single copyrighted work. You can use up to 250 words of an entire poem, or a portion of a poem.
What percent is fair use? ›Generally speaking, the greater amount of the work is used, the less likely it will be considered fair use. Previously, courts endorsed the 10% rule— if a person uses less than ten percent (10%) of the total work or one (1) chapter of a book if the book has ten (10) chapters or more, then it is a fair use.
Does changing pitch avoid copyright? ›
Changing the pitch will not avoid copyright infringement. You would need to substantially change the original work in order to make it truly original.
What are the 3 limitations to copyright? ›What are the 3 Limitations to Copyright? Three copyright limitations could impact a copyright infringement case. These include the fair use, first sale doctrine, and Digital Millennium Copyright Act.
What 5 items can be copyrighted? ›Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.
What are 3 examples of fair use? ›Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.
How do you prove fair use? ›- the purpose and character of your use.
- the nature of the copyrighted work.
- the amount and substantiality of the portion taken, and.
- the effect of the use upon the potential market.
If you edit an image that you didn't create, copyright law still applies. The only way to avoid copyright infringement with images is to create unique works, purchase a license to use an image or find a free-to-use image.
How can I use copyright to avoid a song? ›In order to use that recording, you'll need a master use license. Together, a master use license and a sync license will allow you to add your favorite songs to the films and video games you create. The good news is that you don't have to contact famous celebrities directly in order to obtain these licenses.
What are the 2 exceptions to copyright? ›You generally need to obtain a license (i.e., explicit written permission) to use a third party's copyrighted material. There are three major exceptions to this rule: (1) the face-to-face instruction exception, (2) the online instruction exception (also known as the TEACH Act), and (3) the fair use exception.