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.

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.

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