What do you get when you mix the Internet, millions of content creators, and a growing list of social media and networking sites that support media sharing and remixing? A lot of complicated copyright questions—and plenty of litigation as well.
For example, on June 26, New York-based photographer Robert Caplin filed a copyright infringement lawsuit alleging that Mario Armando Lavandeira, Jr.—better known as Perez Hilton—republished 14 of his photographs at perezhilton.com without authorization. In a separate lawsuit also filed last month, photographer Kai Eiselein accused BuzzFeed of infringing his copyright by republishing a photo he had posted on Flickr.
These lawsuits illustrate that copyright issues can impact almost everybody in the digital ecosystem, from media companies to bloggers to individual artists. And, they can provide an important teaching moment for the millions of us who create, share, and consume content using the Internet. Here are some guidelines that can help make the Internet a better place to share media while also respecting the rights of content creators.
When republishing content created by others, don’t ignore copyright issues. While there’s often an “ask forgiveness, not permission” approach to doing things in the freewheeling online world, that’s a mistake when it comes to copyright. Most content is protected by copyright, and unless it is being used in a manner protected by “fair use” (see below), it needs to be licensed before it can be distributed by anyone but the copyright holder.
Giving credit isn’t the same as having a license. Many people incorrectly assume that they are free to republish images and other content they find on the Internet as long as they credit the original source. The reality is more complex. Some content is in the public domain, and not subject to copyright protection. Some copyright-protected content is available for use under licenses that require nothing more than proper attribution. But most licenses are much more restrictive. Paying careful attention to license terms—and avoiding the use of copyrighted content for which you are unable to obtain a license— can help you (or your employer) avoid expensive, time-consuming litigation.
Understand what “fair use” is—and what it isn’t. U.S. copyright law provides a fair use exception allowing the use of copyrighted content without authorization from the copyright owner “for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research.” Citing a few lines of dialog from a novel when writing a book review is generally fair use; offering pirated MP3 files on the Internet clearly is not. The gray areas between these extremes have been the subject of many court decisions and law review articles. If your company is planning on using third-party content in a manner that raises fair use questions, it’s a good idea to consult a copyright attorney first—and to recognize that if you decide to push the envelope, you may end up funding the next court test on the limits of fair use. It’s also important to keep in mind that most non-U.S. jurisdictions do not have a U.S.-style statutory fair use exception.
Companies should provide some basic intellectual property awareness training for employees. It would be nice if new hires walked in the door with an understanding of intellectual property (IP), which includes not only copyright but also patents, trademarks, and trade secrets. But that’s not what usually happens. Unfortunately, universities tend to provide little or no training to students regarding IP. As a result, IP education tends to be left to employers, who often fail to make it enough of a priority. That’s a penny wise, pound foolish approach. It costs very little to provide employees with an hour or two of training to help them keep copyright issues in mind when harvesting content from the web. It costs a lot more to defend against a copyright infringement lawsuit—particularly when the plaintiff has a valid claim.
Content creators should consider providing a clear copyright notice when posting their work. As this publication [PDF] from the U.S. Copyright Office explains, while there is no legal requirement to provide a copyright notice on newly published works, doing so “is often beneficial.” The more prominent the notice, the more likely it is to be seen. For photographs and other images, adding a clearly visible copyright watermark can be particularly effective. That won’t deter people who are determined to republish an image despite not having authorization to do so, but it can make it harder for them to claim ignorance with respect to copyright status.
Keep an eye out for new “micro-licensing” platforms for individual and small business content users. Suppose you are designing a web site and want to include background music from a favorite artist. Today, obtaining a license for this can be complex. However, in the future it may get much easier thanks to a micro-licensing platform being developed by the Recording Industry Association of America and the National Music Publishers’ Association. By streamlining access to licensed content for individuals and small businesses, micro-licensing has the potential to create a win-win for both content users and artists in the music industry and beyond.
Be part of the conversation regarding updates to copyright law. The law tends to lag behind technology, and copyright is no exception. Almost everyone agrees that copyright law needs to be updated to keep pace with the increasingly complex and global digital media landscape. However, when it comes to specific legislative proposals, there’s always plenty of disagreement. If your company’s business involves the creation or use of content, it’s good to be part of the conversation regarding changes to copyright law that might impact you. A good way to do this is through one of the many trade associations and consortia that help articulate the perspectives of their members regarding IP issues.