This legal guide covers best practices for using copyrights in your business: how can you use other people’s work (what we’ll call “third-party content”) legally, without violating their copyrights?
Check out our Copyright 101 Legal Guide here for basic information about copyrights, including the definition of a copyright, who owns it, and how to use it to keep people from copying you.
The first, and most important, thing to know if you want to use any content that you did not create yourself is that you could be infringing someone else’s copyright if you do not get permission from the owner! This is true whether you are using the content on your own website or on social media. There are no special rules that allow you to use content you don’t own without permission on your social media accounts. And giving credit to the creator of a work does not let you off the hook if you don’t have permission to use it.
Copyright infringement is a “strict liability” offense; this means that you can be held liable (required to pay money damages) if you use something without permission from the owner, even if you did not know you were doing anything wrong. Ignorance is not a defense! This is why it’s crucial to be careful about using content you didn’t create in your business.
Unless you have permission from the owner, you are at risk of, best case, getting a nasty cease and desist letter from the copyright owner demanding payment of thousands of dollars, or worst case, being sued for copyright infringement for up to $150,000 per infringed work in federal court.
Many photographers now hire companies to search the Internet for uses of their photographs and send cease and desist letters to any website they find using them without permission, usually with a demand that the website owner pay $5,000 or more to avoid being sued for copyright infringement. No one wants to deal with a cease and desist letter or be sued, and we know you don’t want to have to pay thousands of dollars because you grabbed a photo from a google image search and used it on your website.
How can you avoid these situations? Here are my best practices for using third-party content in your business.
Step 1: Find out who owns the content. Did you know you can drop an image file into the google search bar to find where it’s used online? You may also be able to track down the owner via their social media accounts. If you can’t find the owner, STOP. You should not use the work.
Step 2: Contact the owner to ask for permission to use the content. Stock agencies like Getty and Corbis make buying rights to images very easy. If you find that a big company that doesn’t specialize in stock content owns what you want to use, their website will likely list an e-mail address to contact for permissions, licenses, or intellectual property rights. When in doubt, you can send an inquiry to the e-mail address for “legal.” If it’s an individual or smaller company, you can contact them directly to ask for permission. Depending on how you plan to use the content, the owner may give you permission for free or a very low fee. If the owner wants to charge more than a few hundred dollars, unless the particular piece of content is very important to your business, it may be worth choosing different content for a lower price.
Step 3: Get it in writing! Make sure you document the fact that the owner gave you permission in writing — it can be as formal as a license contract, or as simple as an email from the owner confirming that they are the copyright owner and are giving you permission to do [XYZ] with their work. The more specific you can be about how you intend to use their work, the better, to avoid any later disagreements about what permission you were given.
Examples include whether you’ll be using the content online and/or in print / television / radio / billboards / advertisements / other media, specific geographic territories, specific languages, number of copies, whether you can alter the content or create new (“derivative”) works from it, and any time limits. If you want to be able to use the content any way you choose, for as long as you’d like, you will want to request an “unlimited, perpetual” license that permits alterations and derivative works.
Creative Commons is a license type that many creators choose for their work, which allows other people to use it for free within certain parameters. You can find information about these licenses here: http://creativecommons.org/ If you search for images on Flickr.com, for example, many of the images are free for you to use with Creative Commons license terms.
It’s important to note that there are different versions of Creative Commons licenses, and not all of them permit commercial (business) use. If you are searching Flickr for images, you should check the box for “Commercial use allowed” so that you only see images that can be used on a business website or social media account. Before downloading any individual image, you should also click on “some rights reserved” to see if the owner requires attribution (you must identify or give credit to the creator) or has other requirements if you use the image.
Free stock photography sites that encourage you to use their images, like unsplash.com, stokpic.com, and deathtothestockphoto.com, are popping up left and right. These sites really do provide images you can use any way you like, for free. However, you’re relying on the website’s promise that these images are really free for you to use. So, depending on where the site got its images, there’s a small risk for you that it doesn’t actually have permission to distribute them (and by extension you don’t have permission to use them). The most foolproof option is to obtain images from a reputable stock agency so you’re sure you get permission from the owner.
If you do get images from Flickr or a free stock site, it’s a good idea to document where you found them, just in case questions come up later about your use of an image. We suggest taking a screenshot including the URL where you downloaded the content and the date, and keeping it in a folder on your computer for future reference. This won’t prevent someone from claiming you have infringed their work, but could help you show you thought you were getting it from a legitimate source.
Fair use is a defense to infringement under U.S. copyright law. If you’re sued by someone for using their work without permission, you can argue that your use was a “fair use,” which is not copyright infringement. Keep in mind this defense will not keep you from getting a cease and desist letter or being sued; it is only a defense if you are sued.
A court will look at the following in evaluating a fair use defense: (1) whether your use is for-profit, (2) the type of work that was copied (i.e. was it mostly factual, which isn’t highly protected, or was it something really creative, which is more protected), (3) how much of the original work you copied (less is always better, copying the whole thing is hard to defend), and (4) the value of the original work or the effect of your use on the market for the original work.
This is a “balancing test”; no one factor determines the outcome, courts look at all the factors together to decide if your use is fair or infringing.
In practice, courts are all over the map on how they apply the fair use factors and which factors they focus on. Because there’s no bright-line rule you can follow about when your use is “fair”, this is a risky defense to rely on in your business. Some uses like parody and commentary are typically found to be fair use, but it’s worth contacting a lawyer to help you analyze whether fair use applies to something you wish to use in your business.
Works that are not protected by copyright law are in the “public domain,” which means they are free for anyone to use however they wish. Prior to a change in copyright law in 1978, if copyright owners failed to follow certain rules, they could lose copyrights to their works, and they would fall into the public domain. Additionally, the copyright term for some works has expired so that now they are in the public domain.
In general, any work first published in the U.S. prior to 1923 is in the public domain. You will have to do some detective work on any work that was first published more recently than 1923 before you can be sure it’s in the public domain. This is not always easy to figure out; this website is a good resource: http://copyright.cornell.edu/resources/publicdomain.cfm
Bottom line: The easiest way to protect yourself from being accused of copyright infringement is to get permission, in writing, to use third-party content in your business from the owner.
We can help you find the copyright owner or figure out if a work is in the public domain, negotiate license terms, and evaluate whether your use could be “fair use”.
*Legal Road Map Sessions, Q&A calls, Individual Legal Projects, and Retainer Services are only available to businesses seeking advice on U.S. intellectual property issues; businesses seeking advice on online business, technology, and e-commerce issues; and businesses located or registered in Tennessee seeking advice on local business law matters. Autumn Witt Boyd is licensed to practice law in Tennessee and other attorneys who work with our firm may be licensed in other states.
Our firm does not work on any patent law matters.