Everything Marketers Need To Know To Avoid Violating Copyright Law Ross Kimbarovsky | October 12th, 2016

copyright-law

Image Source: opensource.com

 

If you’re not creating content, you don’t exist on the internet. Tweets, images, blog posts, comments, your Facebook posts – these are all content. Marketers know that when done correctly, content marketing can be a valuable marketing channel. As I wrote previously:

“Content marketing” refers to creating information (content) that has value to others. The creator of the content ultimately wants to sell a product or service to prospective buyers who benefit from the content, but the goal of content marketing is rarely to sell directly. Instead, the goal of content marketing is to encourage people to read and perhaps engage with the content, and to begin developing a relationship with the person or entity that created that content.

There are many terrific guides about content marketing, including this one from Kissmetrics. But before you rush to share another image or write your next blog post, consider this: content marketing can have many serious legal consequences. If done improperly, marketers can violate copyright law and expose themselves, their employers, and their clients to substantial legal risk, money damages and embarrassment.

I created this guide to help marketers understand the basics of copyright law. I know a bit about the subject: I received my law degree 21 years ago. Before founding crowdSPRING, I was a trial attorney focusing on complex commercial and intellectual property litigation.

If you have a question that isn’t answered below, please leave a comment and I’ll consider revising the guide to include your question (and an answer).

What is Copyright?

Copyright is a form of legal protection provided to those who create original works. Under the 1976 U.S. Copyright Act, the copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform and publicly display the work. Any or all of these rights can be licensed, sold or donated to another party. You do not need to register a work with the U.S. Copyright Office for it to be automatically protected by copyright law (registration does have benefits – see “What can you do if someone else is using your content?” Q&A below).

Let’s take a look at these rights in more detail.

The copyright owner has the right to reproduction. This gives the copyright owner control over who can or cannot reproduce their work. If someone copied this guide and pasted it on their own site without my permission, that would violate my copyright.

The copyright owner has the right to derivation. This gives the copyright owner control over who can or cannot make derivative works. If you take a screenshot of  part of an image, or translate this post into another language and publish it without permission,that would violate my copyright.

The copyright owner has the right to distribution. This gives the copyright owner control over who can or cannot share their work, including sale, import/export, and commercial trade. If you share this guide as part of an eBook, for example, without permission,that would violate my copyright.

The copyright owner has the right to public display. This gives the copyright owner control over who can or cannot post their works publicly, including online. If you share someone else’s work without permission in public, including online, that would be a copyright violation.

The copyright owner has the right to sell, transfer, or license their rights. This gives the copyright owner the right to legally appoint someone else as the copyright holder or to grant someone else permission to use the work.

Copyright laws around the world can differ in significant ways. Most countries are signatories to various international treaties and agreements governing copyright protection, such as the Berne Convention. Under the Berne Convention, if your work is protected by copyright in your own country, then your work is protected by copyright in every other country that signed the Berne Copyright Convention.

What does Copyright protect?

Copyright protects works such as image, writing, software code, photographs, poetry, movies, music, video games, videos, plays, paintings, sheet music, recorded music performances, novels, sculptures, photographs, choreography, and architectural designs.

To be protected by copyright, a work must be original and “fixed in a tangible medium of expression.” This means that the work must exist in physical form. A tangible medium includes paper (even a napkin or cardboard will do) and digital storage.

The work must also be the result of at least some creative effort by the author. For example, simply listing people’s phone numbers in a phone book’s white pages isn’t sufficiently creative (and as you’ll read below, you can’t protect facts).

Does Copyright protect ideas?

No. Copyright doesn’t protect an idea, system or process. You would need to obtain patent protection for those.

For example, if your small business is creating software programs, you would generally be unable to protect under copyright law the algorithms, methods, systems, ideas or functions of software. Your code, however, is protected – nobody can sell or distribute your code without your permission. Allowing people to copyright ideas would thwart the purpose of copyright law (to encourage people to create new work).

Copyright also does not protect facts (regardless of how long it took to uncover such facts). For example, anyone is free to use information included in a book about the discovery of America or about how a television works, if they express that information using their own words.

Does a work have to be registered for it to be copyrighted?

No. Many marketers mistakenly believe that because an image was found on Google, Bing or another search engine or if it doesn’t have a copyright symbol, it’s probably not copyrighted. This is dangerous. If you didn’t take the photo yourself, it doesn’t belong to you and you may not have the right to use it.

Nor can you confirm whether a work is protected by copyright by checking whether that work is registered with the U.S. Copyright Office. That’s not how copyright law works. The moment an author creates an image, writes a story, creates a new song, they automatically have a copyright to that work. Nothing else needs to be done to have a copyright in a work (this is different from trademarks and patents, which do require the owner to register the work and to pay a registration fee). On the other hand, you do need to register a work with the Copyright Office in order to enforce your copyright in a court of law in the U.S.

How Long Does a Copyright Last?

All works published in the United States before 1923 are in the public domain (which means you can use such works freely). According to the U.S. Copyright Office:

The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. 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. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors. To determine the length of copyright protection for a particular work, consult chapter 3 of the Copyright Act (title 17 of the United States Code). More information on the term of copyright can be found in Circular 15a, Duration of Copyright, and Circular 1, Copyright Basics.

What is a “Work-Made-For-Hire”?

The phrase “work-for-hire” comes from U.S. copyright law. It refers to the original work of an employee or independent contractor/consultant, within the scope of their job or assignment (copyright ownership automatically belongs to the employer).

Remember that the author of an original work owns the copyright to that work. When a company hires an independent contractor (to write a blog post, create a video, develop software, etc.), the parties need to determine what rights will transfer from the contractor to the company. If the parties want the work by the independent contractor to be work-for-hire – in which case full rights would transfer to the client, they must specifically state so in a written agreement (more about this in my free ebook – Contracts For Designers Who Hate Contracts) and the work must fall within one of nine categories :

1. A contribution to a collective work (such as a magazine, an anthology or an encyclopedia)
2. A work that is part of a motion picture or other audiovisual work (such as a website or multimedia project)
3. A translation
4. A supplement prepared as an adjunct to a work created by another author (a foreword, an appendix, or charts)
5. A compilation (a new arrangement of pre-existing works, such as a catalog or book containing different posts)
6. An instructional text (literary, pictorial or graphic)
7. A test
8. Answer material for a test
9. An atlas

If the work doesn’t fit into one of the nine categories, or the parties don’t execute a written document specifying that the work is “work-for-hire”, it’s not work-for-hire. In that case, the contractor would continue to own the copyright for the work. That’s one reason why every project on crowdSPRING is protected by a customized legal agreement that includes work-for-hire provisions.

What is “Fair Use”?

The “fair use” section of the Copyright Act places limitations and exceptions on an owner’s copyright in the form of commentary, news reporting, teaching, archiving, academic research, and search engines. According to the U.S. Copyright Office:

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. 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.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

Whether or not something is “fair use” is largely up to the courts. The U.S. Copyright Office maintains a comprehensive index of federal cases dealing with fair-use.

There is a four-part test typically used to determine if use is fair use. Ask yourself these four questions before you deem your use of someone else’s work to be fair use:

  • What is the purpose and character of the use of the work?
  • What is the nature of the copyrighted work?
  • What part of the work was used compared to the whole?
  • What is the effect of the use of the work on the potential value or market of the original copyrighted work?

To learn more about fair use, read this guide from Stanford.

What is “copyright infringement”?

Copyright infringement is the unauthorized use of copyrighted works. This happens when content (including writing or images) are taken from Google, another post or article (or from pretty much anywhere) and used without permission from the original author. In such cases, the copyright holder can sue the person or organization who used the content without permission.

Copyright infringement occurs whenever someone makes copies or commercially exploits a work without the copyright owner’s permission.

Some marketers mistakenly believe that as long as they change someone else’s work by 20 percent, they avoid copyright infringement. This is plainly untrue. There is no 20 percent rule. Infringement is not a mathematical calculation. The standard for infringement is whether the second work is “substantially similar” to the original work.

“Substantially similar” means that an average person viewing the two works would recognize that the “artistic expression” in one was copied from the other. “Artistic expression” means the specific artistic choices and details that go into a work, such as how the work is composed and rendered, but not general concepts such as subject matter or similar artistic style.

Here are some examples of infringement:

  • A marketer copies someone else’s blog post or article and changes 25 percent of it.
  • A marketer uses someone else’s image in their blog post or article (even if you give credit to that person) without permission.
  • An illustrator makes a drawing from a photograph. Photographs are fully protected as copyrighted works. If you copy the artistic expression of a photograph, e.g., the choice of subject matter, lighting, point of view, composition, etc., you have infringed the copyright in the photograph.
  • A marketing campaign uses slogans, images and page designs similar to those used by someone else.

What is Creative Commons?

Creative commons is a licensing scheme created to permit creators to have some control over how their material is used, while still offering the works freely to the general public. Some restrictions on a creative commons license include a simple attribution link for any taken images or a stipulation that the image not be used for commercial purposes. Read creative commons licenses carefully before using the material in your marketing campaign. You can find creative commons images on Flickr or by searching the Creative Commons site.

Be careful. If you use an image or creative work with a Creative Commons license on it, the person who applied for that license might not actually be the copyright owner. That means the Creative Commons license is meaningless and you could be infringing on the real owner’s copyright if you use it in your marketing.

Can you use a copyrighted work with the permission from the owner?

Yes. If you secure written permission from the copyright holder, you can use the copyrighted work. When in doubt, always ask.

Can you use a copyrighted work with the permission from the owner if you make no money from your blog?

No. Using someone else’s work without permission is copyright infringement, whether you make money from it or not. Such use might, however, influence whether what you did is considered “fair use” by a court, or how much money the court awards in damages.

Can you safely use an image from a search engine?

No. You shouldn’t use a random image you find online unless the copyright owner has given you written permission to do so (or has licensed such content for use under, for example, a Creative Commons license), or unless you’ve purchased the content. Even if you don’t make money on your site, using someone else’s content without permission violates copyright law.

You can specifically search for images that can be used commercially. For example, Google’s advanced image search lets you specify usage rights, including looking solely for images available for commercial use. You can do the same on Bing.

What if you downloaded the image from a  site that said the image was free to use?

Copyright infringement is a “strict liability” offense. If you use someone else’s copyrighted work without permission, you’re liable (even if you thought it was OK to use it). You might be able to shift liability to the site you got the image from, but you’ll still have to show up in court if the owner sues.

Can you safely use an image from a stock photo site?

It depends. You need to carefully review the site’s license terms.

Can you safely use an image from a public domain repository?

Yes. Works that exist in the public domain once had copyrights but those copyrights have expired or have been forfeited. You can get public domain images through a public domain repository.

Does copyright law protect only works created by U.S. citizens?

No. U.S. copyright law protect works created by U.S. citizens and also protects, as a result of an international copyright agreement that the U.S. joined in 1989 – the Berne Convention – works protected by copyright laws in over 100 other countries around the world.

How long does copyright protection last?

The answer depends on the country. The following map gives you a general sense of copyright protections around the world.

world_copyright-terms

Image Source: https://commons.wikimedia.org/wiki/File:World_copyright-terms.jpg

What is the CAN-SPAM Act?

Most experienced marketers know that email marketing is a powerful and inexpensive way to run promotions and stay fresh in customers’ minds. Not all marketers understand the many pitfalls of email marketing, however. For example, some marketers buy third-party email lists, send promotional content people don’t want to read, and do so at a frequency that many consider spamming. This is a sure way to get on a blacklist, and also might violate the CAN-SPAM act.

The CAN-SPAM Act, signed into law in 2003, established national standards in the United States for sending commercial e-mail. There are a few key clauses in that Act that you should pay particular attention to:

1. Unsubscribing: All emails must have a visible and easy to use “unsubscribe” link or button, and all requests must be honored within 10 days. What’s more, opt-out lists can be used only for actually opting out users, not to further spam them.

I have a particular pet peeve with companies that require me to enter my email to unsubscribe from an email list. I always mark such emails as spam. Make unsubscribing as easy as possible. It seems counter-intuitive, but in the long run, will always be the better approach.

2. Content: All form lines must be accurate, and subject lines must reflect the content inside the email. You can’t send an email with the title “10 Tips To Market Better” but have the email loaded solely with Viagra links. Businesses also must include a legitimate address or PO Box. Additionally, if the content is for adults, the message must be clearly labeled to reflect this.

3. Sending Behavior: Email marketing messages can’t be sent through an open relay, nor can they be sent to a harvested address or contain a false header.

What can you do if someone else is using your content?

First, consider registering your creative works with the US Copyright Office. It might not be worth it for you to register every single blog post, but consider registering the works you’ve put a lot of time and effort into, like whitepapers, infographics, videos, or even very thorough well-researched articles. You could even register a group of blog posts as a compilation.

Registration will give you additional benefits in the event someone uses your work without permission. One big benefit: you can sue them. Another, if you register a creative work within three months of publication: you can sue for “statutory damages,” meaning you don’t have to prove that you actually lost a specific amount of money as the result of someone else’s using your work, which is tough for most people to prove.

Next, contact the person using your work and ask him or her to stop. That’s typically my first step, since so many people genuinely have no idea that what they’re doing is illegal.

You can also send a more formal “cease and desist” letter detailing their unauthorized use and demanding that they take down any infringing content or you’ll be forced to sue them.

If the infringement happens on Facebook or Twitter, report the infringer to that site.

What if you have a question that isn’t answered in this guide?

If you have a question that isn’t answered in this guide, please leave a comment and I’ll consider revising the guide to include your question (and an answer).

Please remember that legal information is not the same as legal advice. This post may not address all relevant business or legal issues that are unique to your situation and you should always seek legal advice from a licensed attorney.

From many minds, the perfect design. Post your project today and let the crowd wow you!

  • Pingback: The Law on Fonts and Typefaces: Frequently Asked Questions « crowdSPRING Blog()

  • Daniel B

    This is a great article with a number of very important reminders. We’ve experienced issues with using copyrighted images—even have received a “Getty extortion letter”. You really can’t trust the “labeled for reuse” setting in Google Images.

  • Ross Kimbarovsky

    Thanks for your comment, Daniel. How did you deal with Getty’s letter? Did you have to get an attorney involved?

  • Daniel B

    The letter basically says “pay us $500 and we will leave you alone. Or don’t pay and we will sue you.” We paid…

  • victoria ashton

    I thought this had some valuable insights that I had learned as a paralegal but I am not in copyright. It is important to note that a lot of ad agencies don’t make creatives do the legal work because they are paid to be creatives. When I dealt with Esq. Maria Carter, legal head of the Copyright Office and others in D.C., they always noted that ideas can’t be copyrighted and were great and helpful although it is a hard process. The whole reason we have protection is due to the late, great Sony Bono who fought for this.

    In addition, I too hate that marketers think wasting your time unscribing is just or right.

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