In our social media-centric society, it seems like anything that’s on the Internet is up for grabs. “If I can share it, I can use it” seems to be the mantra of the day.
And let’s face it, technology makes it so easy to grab something from the Internet and make it look like our own by adding it to our Facebook page or blog post.
Add that to the pressure of external sources who say “content is king” and “drive traffic” to your site, and business owners and their teams are often cutting copyright corners.
Unfortunately, that can lead to nasty letters (or worse) from copyright holders, expensive licensing fees and even legal battles in federal court.
Copyright law protects against unauthorized copying or use of an author’s original work. U.S. statutes provide enforcement mechanisms and penalties for copyright infringement including injunctive relief and statutory damages up to $30,000 per infringement. A willful violation (i.e., you know something is copyrighted and you use it anyway) could incur damages up to $150,000 per infringement.
A few years ago, seemingly innocent excerpts and links back to news articles got hundreds of bloggers into protracted copyright litigation in Las Vegas. Federal district court judges eventually dismissed the cases with scathing comments about the company that brought the suits purportedly as the copyright owner, but not before many small business owners and bloggers paid thousands of dollars in settlements.
As general counsel for one of the largest REALTOR® associations in the country for eight years, I heard a lot of misconceptions about using copyrighted content, posting photos online and starting a website. I’ve distilled those down to the top three basic copyright myths that can get unwary business owners and entrepreneurs into trouble.
“If there’s not a copyright notice on it, that means anyone can use it. You have to tell me it’s copyrighted. Otherwise it’s public domain and I have free and fair use.”
The best and most believable myths contain a kernel of truth—or something that sounds an awful lot like the truth. Copyright law is one of those areas where a few key words and phrases that may seem self-explanatory can get us in trouble. Here’s the real deal:
- Copyright vests instantly in the author of a work at the moment of creation. A “work” includes words, music, photographs, film, graphics, computer code—any physical format of a creative expression. So, unless you actually wrote the words or physically took the photo (or actually employ—not just “hire” or contract with—the person who did), someone else owns the rights to use, display, copy, distribute and make money from those words or that photo.
- Copyright is assumed; no notice required. A copyright symbol © is not needed to designate the image or material as copyrighted. The words “Copyright 2017” and the name of the copyright holder do not need to appear. There does not need to be a watermark on a photo. The copyright owner does not need to register the copyright with the Library of Congress for the copyright to vest. All of these steps are useful in determining ownership and enforceability, but the lack of a notation does not mean the work isn’t subject to copyright protection.
- Works that are considered public domain are not protected by copyright, that’s true. However, in the context of copyright, “public domain” has a very specific meaning related to the type of work, when it was first created or copyrighted and whether the copyright was renewed. It does not relate to public availability.
- Yes, there are “fair use” exceptions to using copyrighted works, and again these are limited and defined by law. The exceptions are fairly narrow, including criticism, comment, news reporting, teaching, education, or research. Of course each of those areas is further defined by statutes and case law.
- Social media makes the boundaries of fair use grayer than ever, as YouTube sensation Michelle Phan learned when she was sued in 2014 by the copyright owner of background music used in her online makeup tutorials. (She claimed the fair use of “education” and/or she had a license; the case settled.)
And if you don’t have the right to use it, contact the person who did create it (who is the copyright owner) and get permission to use it. Note: merely attributing someone else’s work is not a substitute for actual permission.
“If I download a photo and use it, there’s no way they can find me.”
It’s the lure of the right click.
Just right click on an image and there’s the option of “copy photo” or even “save photo as.” It’s so easy.
“Who’s going to know?,” you say to yourself. “I’ll just use it to illustrate this one blog post. What’s the harm? It’s not like I have the reach of The New York Times or anything.”
And so you use the image and sometime later—could be months, could be years—you receive a letter demanding payment for the use of the copyrighted image.
In recent years, there’s been an upsurge in demand letters from the copyright holders of images used online. Chief among them is Getty Images, one of the world’s largest photo libraries, who has sent thousand of letters to website owners and bloggers all over the country.
But how do they know who’s using their images?
Copyright holders can embed tracking codes called “digital watermarks” into an image. The code survives cut and paste, compression, scaling and cropping. You don’t even know it’s there. Then, the copyright holder uses spiders or bots to track the use and location of their photos online. Voila! They know who has been using their photos.
Written works are likewise trackable online using similar automated search technology, so beware the wholesale cutting and pasting of another person’s work. In school we called that plain ol’ plagiarism and it’s alive and well online.
If you do receive a letter alleging copyright infringement, do not ignore it. Contact your legal counsel and/or your website provider to discuss your response options. This article from the Illinois State Bar Association has some great tips.
“They have to contact me first to take it down, and if I do take it down, I don’t have to pay.”
There’s this nifty piece of federal legislation called the “Digital Millennium Copyright Act” (DMCA) that provides website owners with a potential “no harm, no foul” way out of expensive copyright infractions.
Many copyright owners are satisfied with a take down. But if the work was already used, especially in a public setting for a commercial purpose, then the owner has a right to request reparations, such as a portion of the proceeds you earned while using their copyrighted material.
Whew! I know this is a lot of information, and the thing is, this is just the tip of the copyright iceberg. This area of law can be pretty vague and it’s constantly evolving as the Internet and our “copy and paste” culture pushes the boundaries of copyright protection beyond anything the original drafters of the U.S. Copyright Act could have fathomed in 1936.
For more information and resources, check out the U.S. Copyright Office website.