Guest post by John Rees, Attorney, Callister Nebeker & McCullough
Easy is not always better.
Before online marketing, using content in marketing was a deliberate process of finding content, making sure that rights of use were granted, working through multiple steps of proofs and review and ultimately, generating expensive glossy printed material.
That has changed: The world of online marketing has given Internet users the ability to copy and paste content through very simple, no-cost procedures. It’s essentially as easy as right-clicking a source page, opening a destination page, and another right-click to copy content to a destination page. However, easy can lead to some unfortunate results.
Debates continue over the rights that content owners should have online. Some argue that because the content has been posted online, it should be available for use by others, with very few, if any, restrictions. Despite the rapid rate of change in technology, there are fundamental principles that have not changed.
Copyright law protects original works of authorship and original content, regardless of where it is posted or displayed. Original works may include stories, blog posts, articles, graphics, photographs and other images, marketing materials, drawings and plans. Usually, originality is not difficult to find in a work. As a result, as soon as a work, such as an article or photo, is created, copyright rights exist. Copyright registration is not necessary to claim fundamental copyright rights, but registration is necessary to pursue an infringement claim in litigation, but there is a procedure for expedited registration, so the lack of registration does not need to bar a copyright owner from pursuing his/her rights in a copyrighted work.
The person who creates a work is the copyright owner. The concept of work made for hire is confusing to many. If a third-party service provider is engaged to take a photo or create content, the work is not a work made for hire. With a few exceptions, a work is only a work made for hire if it is created by an employee within the scope of his/her employment. If an outside firm or service provider is used to create a work, the user needs to get an assignment or license from the firm that created the work.
The owner of a copyrighted work has several exclusive rights: the rights to copy, reproduce, distribute, publicly display the work or create derivative works from the original.
What about fair use? Fair use is very limited and does not apply for most commercial uses. If the work is being used in an educational or nonprofit environment for purposes of commenting on the work, it may be fair use. If fair use is a possibility and it is critical to use the work, contact legal counsel to help work through the maze of fair use.
Failure of a copyright owner to include a copyright symbol, whether inadvertently or intentionally, does not change the need for permission to copy, use and display copyrighted works of others.
Infringement occurs when one of the exclusive rights has been violated. Not all copying is intentional. If there is inadvertent copying, courts will consider whether the new work is substantially similar to the original work. Through a series of tests, courts will make this determination. If the two works are substantially similar, and the copyright owner can produce a certificate of copyright registration, it is likely there is infringement and liability and then the courts will determine damages.
It is tempting to say, “I will never get caught,” or “If I am caught, what damages could the copyright owner assert?” It may be true that the risk of getting caught or a copyright owner establishing substantial damages is low. But it only takes one time. Getty Images and other image providers are aggressively pursuing websites that post images that have not been licensed. Further, copyright law provides for statutory damages. In litigation, a copyright owner may elect to recover statutory damages, which are damages unrelated to the amount of actual damages. Statutory damages of up to $30,000 per work may be awarded. For willful infringement cases, the amount of statutory damages is up to $150,000 per work.
One final issue: if an article is posted online, may a user make copies of the article and distribute them? Technically, it is distribution of the work, and a violation of one of the exclusive rights of the owner of the work, but the work is already available publicly. The safe course is to distribute the link to the content and have the recipient of the link directly access the materials.
Copying and using online content is deceptively easy. To avoid potential liability, the best strategy is to create original works. If that is not an option, always seek permission or a license to use the creative works of others.
John Rees is a business lawyer with the law firm of Callister Nebeker & McCullough who helps clients find solutions to their business legal needs, particularly in a complex legal and business environment. He focuses on corporate and intellectual property issues, particularly relating to licensing and doing business on the internet.