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Kerry Gorgone

Avoid This Common (and Costly) Copyright Mistake

By: Kerry Gorgone | December 18, 2013 | 
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Avoid This Common (and Costly) Copyright MistakeBy Kerry Gorgone

Not every use of copyrighted material is “fair” and one of the most commonly misunderstood areas of copyright law involves “fair use.”

Many times, someone who uses a picture, some music, or a written article that doesn’t belong to them will claim “fair use” when the copyright holder contacts them about using their work without permission.

First and foremost, it’s important to realize that “fair use” is a defense to a claim of copyright infringement. In other words, before you get to make the “fair use” argument, you’ve been sued and had to consider how to defend yourself. Litigation induces anxiety and costs a lot of money, so your situation is already far from ideal.

Although everyone should respect copyright law, it’s especially important that brands know when and how they can use the creative works of others, because companies present an attractive target for lawsuits.

What is Fair Use?

The circumstances under which “fair use” applies are relatively rare, and far from clear cut. The court applies four factors to decide whether or not a specific use is “fair” under the copyright law:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Translated: Did you make money off the other person’s work? How creative and unique is their picture, blog post, or song? How much did you use (a tiny snippet versus the entire thing), and will your use undercut the work’s value?

Curate, Don’t Copy

If I run your entire post, word-for-word, on my blog, it negates the need for people to visit your website, reducing your traffic and, potentially, lowering your conversion rate (whatever “conversion” means for you).

Even if I link to your original post somewhere in mine, no one will click on that link, because they already have the entire article.

Compare this to a brief blog post in which I say, “Gini Dietrich covers some important points about attribution modeling in her blog post today,” with a link back to Gini’s site.

Clearly, this presents a very different scenario, and the small snippet of text I might use to convince people to read Gini’s article is much more likely to be considered “fair use.”

This is why “content curation” or sharing links on social networks is legal: You’re not reproducing the entire work, you’re just telling other people where the author has posted it.

Similarly, if my purpose in using part of the work is to comment on it or criticize it, my argument for “fair use” gets better, but you can never be sure at the time you decide to use it whether your proposed use is “fair,” because only the court can decide that (and only after you’ve been sued).

Some Tips for Brands

Beware of “Pic Bait”
In some instances, people will post their copyrighted photos online, and optimize them for Google image search, specifically to “bait” someone into using their photo, specifically so they can threaten a lawsuit and demand a settlement. Don’t take the bait!

Create your own images, find images released under a Creative Commons license, or purchase royalty-free photos from sites such as iStockPhoto.

Creative Commons
Some goodhearted artists choose to release their creative works under a Creative Commons license. These licenses allow companies or individuals to use the work, provided they comply with the terms of the license.

Creative Commons license types range from minimally restrictive (attribution only requires you to credit the author) to most limited, such as licenses that allow people to use the work, but forbid you to make any changes to it.

Be aware there is a Creative Commons license that specifically disallows commercial uses, so if you benefit financially in any way from posting the content (even indirectly), it’s safest not to use content released under this type of license.

You can find images released under a Creative Commons license on Flickr. Remember to provide credit and comply with the requirements of the specific license. Also think twice before using Creative Commons photos that show people (especially minors).

Remember Image Releases
Having copyright permission does not negate the need to get a signed release from people shown in the photos. This gets especially tricky when you want to use photos of children or teenagers, so stick to pictures of places and things if you want to be safe.

Copyright Best Practices for Brands

Ideally, you should be creating your own content. With smartphones, taking a high-resolution picture is often as simple as stepping outside, and services such as PicMonkey enable you to fix any problems with cropping, color or light, and even add text over the picture.

Custom images for each blog post make your content more “pinnable,” as well, and Pinterest drives traffic.

Write long-form blog posts, and then divvy them up into smaller pieces of content for your social feeds. Turn a white paper into a slide presentation. Turn a webinar into a series of YouTube videos. In short, you most likely have excellent content that you already own, so why risk using someone else’s?

Sound fair?

For more information, visit the Copyright Office website.

About Kerry Gorgone


Kerry O'Shea Gorgone is instructional design manager, enterprise training, at MarketingProfs. She is also a speaker, writer, attorney, and educator. She hosts and produces the weekly Marketing Smarts podcast.

33 comments
@jason_
@jason_

What a great post @KerryGorgone! I try to use my own images when I write blog posts for this exact reason.

ginidietrich
ginidietrich moderator

Every time I go to put an image on a Spin Sucks post, I get a little anxious inside. EVEN if it's a photo I've taken. Now I'm panicked because I don't have a release form from my nieces, who appeared in a post earlier this week.


You may have to become my therapist.

T60Productions
T60Productions

Really, really good stuff Kerry.  I'm going to share this post with every client who wants to use popular music in their video instead of royalty-free music.  Thanks!


--Tony Gnau

MikeHale
MikeHale

Unfortunately there's nothing on a site like Flickr to prevent someone from posting an image they don't have the rights to as a Creative Commons image. 


When I use a CC image on my blog, which I like to do not because I'm cheap, but because they don't look like regular stock photos I attribute the source as required, but I also take a screen capture of the image showing the CC license. 


I'm no lawyer, and I'm not saying it'll get you out of trouble if the rights holder does come after you. I just like to have something showing that to the best of my knowledge I was using the image correctly. 


Scary that even when you do things right, you could still be doing something wrong! 

RobBiesenbach
RobBiesenbach

Wow, I never thought about the notion of needing releases from the people in photos—just assumed if you've got the photographer's permission you're okay.

Anyway, great post! This is what's always stuck in my craw about Pinterest. All of those images flying around and getting pinned from board to board almost always belong to other people. And they're not just someone's snapshots—they're the work of professional photographers.

Finally, here's another good source of free photos. I think it has even better stuff than Flickr Creative Commons: 

http://www.sxc.hu/

JoeCardillo
JoeCardillo

These are all great starting points Kerry, glad you took the time to lay some of this stuff out. 

I believe brands/marketers should regularly be thinking about open access and copyright. The curate don't copy point is especially important because it has everything to do with how you build a strategy. 

Anyone can build an automated feed of links & topics, but getting regular traffic that aligns with your audience, and also directing traffic & credit to creators where appropriate is a much bigger picture thing. The first may get you some incremental ad revenue, but the second will get you mindshare. 

KerryGorgone
KerryGorgone

Absolutely @jasonkonopinski! Sometimes, brands do everything right (obtain model releases, clearance, and so on), but people forget or don't realize. As long as the source of images that brands use is documented, along with any license agreement and/or release, you're in a good position to respond to baseless complaints like those. It's usually not bad faith: just bad memory!

WWcopywrite
WWcopywrite

Thanks for the post, Kerry. Copyright is something that few people fully understand. However, for those who create original content, be it photos, videos or article, it's very important. 

jasonkonopinski
jasonkonopinski

Some great advice here, @KerryGorgone


In a previous life, I worked in rights and clearances for Jupiterimages. I'd regularly get calls from people saying that their likeness appeared in commercial usage without their consent. Often, the model releases were inaccurate or the person simply didn't remember being shot for stock from years previous. 



JRHalloran
JRHalloran

Nicely written, Kerry! 

That's exactly what copyright comes down to -- whether you made money on it or not. 

I also like what you had to say about copyright infringement with images. We recently featured a post on how Getty Images and Agence France-Presse (AFP) were sued for $1.2 million for using an image from a photographer's Twitter account.

You can read more about that here if you're interested:  http://www.brand.com/blog/unauthorized-photo-use/ 

That's why I think you made good points about being careful with the images you use. If two large accredited services couldn't get away with it, what makes you think your company will? Just something to consider.

lizreusswig
lizreusswig

WooHoo...Yipppeee...Congrats on your Spin Sucks debut, Kerry!  Now all the crazies here will get to know, as jasonkonopinski says, how super smart you are! :)


This is such a useful post - I believe that many folks just don't know what they can & can't do.

KerryGorgone
KerryGorgone

Thanks, Jason! No question that using your own pics is the safest alternative. Of course, then you'll still want to check online to see if someone else is using your pictures without your permission. ;)

KerryGorgone
KerryGorgone

Using your own photos is the simplest approach in terms of copyright. If your nieces are minors, Gini, get a release from the parents. (You look too young to have adult nieces!) And I'm always happy to talk with you. My therapy rates are very reasonable, but then you get what you pay for. ;)

KerryGorgone
KerryGorgone

Thanks, Tony! That's a scenario every production professional can relate to: "but The Black Keys song is PERFECT for my collage of product images on the website." No. Just don't!

KerryGorgone
KerryGorgone

Great point! There's no way to stop someone from uploading someone else's copyrighted work to Flickr (or YouTube, or Pinterest, or any of those sites that enable user-generated content). Your suggestion to capture a screenshot is a good one. Brands can also search by image, uploadinf the picture they want to use into a Google image search: https://support.google.com/websearch/answer/132580

This will identify other online uses of the image, and may help to confirm who the actual owner of copyright is. (Artists can also use this to search for unsanctioned uses of their works.)

Thanks for sharing your thoughts!

jasonkonopinski
jasonkonopinski

@JRHalloran At Jupiter (which is now owned by Getty), we used to use a product called PicScout. It would recoup at least six figures worth of unlicensed rights-managed licenses each year like clockwork.  It'd scour the web, match images against existing licenses, and send invoices. Amazingly effective. 

JoeCardillo
JoeCardillo

@lizreusswig Second'd. I love thinking about copyright and open access, this is all really important stuff for brands and marketers to know about.