THE FREELANCER’S & AGENCY’S GUIDE TO LEGALLY USING COPYRIGHTED PUBLICATIONS & IMAGES
THE FREELANCER’S & AGENCY’S GUIDE TO LEGALLY USING COPYRIGHTED PUBLICATIONS & IMAGES
If you are a freelance blogger or copywriter, photographer, marketing or PR agency, student or teacher, you probably search the Internet quite often to find creative images, compelling quotes or other online content to incorporate in your own works. Let’s face it, long gone are the days of spending hours at the public library or skimming through a home encyclopedia (do people still have those?). These days, we can simply type our keywords into a Google search box, identify what’s relevant to our project…copy…paste…done…we have our masterpiece!
The Internet contains a vast collection of content, and search engines make it easy for us to find what we need for our next project or assignment. If you’re a freelancer, designer, marketing agency or artist of any kind, there’s little need to reinvent the wheel for your next great idea. I’m not advocating that you reinvent the wheel with each new project; that’s just not practical. However, there’s no such thing as “borrowed” images, music, audio, articles or software.
This article is your quick guide to sifting through online content so that you can determine which copyrighted content you can legally use for your next gig.
What’s a Copyright and Who Owns It?
A Copyright is one of 4 classifications of Intellectual Property. Copyright law is designed to protect original creative works. Authors of creative works enjoy this protection automatically from the time their idea takes a fixed, tangible form. For instance, original photos, video footage, artwork, blog articles, poems, plays, music, videos, webinars and podcasts are all examples of creative works that have automatic copyright protection from the time of creation.
Take a closer look: You may have inherent copyright protection, but can you defend it? Find out why using a copyright symbol at the bottom of your website or original work product is not enough to defend against an infringer’s unlawful use of your work — How to Copyright a Website to Protect Your IP.
Unless they have transferred ownership to someone else, the author of that original work owns the copyright. For example, a web developer may design your website, but you typically own the logo, articles and other creative content associated with the website. On the other hand, photographers often transfer ownership or usage-rights of the photos they take of their clients (e.g., headshots, wedding pictures) or on behalf of the clients (e.g., photos of products, food for menus, or other marketing materials) to the client after purchase. Some photographers even provide their clients with a written release form to formally grant the client permission to print or publish copies of their photos.
Either way, in most cases the author of original works has an exclusive right to use their content and can bring a copyright infringement lawsuit against you for using their work without their permission.
When Can You Legally Use Copyrighted Publications and Images that You Find Online?
Now that you have found the perfect illustration, image, audio sound or footage online, can you use it?
Fair Use
Fair Use is a legal doctrine that allows freelancers, agencies, news publications, educators and the like (including everyday individuals) to use copyright-protected content without permission or a license from the copyright holder. Just like the term implies, if your use of copyright-protected content qualifies as fair use, it’s fair play for you to use. However, this type of unlicensed use is only permitted under certain circumstances. Based on various court decisions, Section 107 of the Copyright Act provides guidelines for what type of uses qualify as permissible, fair use.
While I would love to tell you that there are concrete rules governing fair use, the reality is that the Copyright Act only provides us with guidelines intended to balance our right to freedom of expression and the right of copyright holders to control how their original works are used. In most cases, uses such as “criticism, comment, news reporting, teaching, scholarship, and research” are all activities that qualify as fair use (find more examples of Fair Use – U.S. Copy Office Fair Use Index.
When a court is considering whether a freelancer’s or agency’s use qualifies as fair use, the court will make a case-by-case determination based on certain factors. These factors include:
— The percentage or amount of copyrighted material used.
— Whether the unlicensed use harms the copyright owner or the market.
— The purpose of the use (nonprofit educational and noncommercial uses are fair uses).
— The nature of the copyrighted work (the more imaginative the work product, the more likely you canNOT use it unless you have permission; however, the more factual or technical the work product, the more likely you can use it as fair use).
Take a closer look: What about your own original works? Not all original works are treated the same; they fall within different intellectual property classifications. For example, the type of protection you need for a logo is not the same protection that you need for a novel or film — Do I Need a Trademark, Copyright, or Patent?
How to Avoid Copyright Infringement?
Fair Use is the most common defense to a copyright infringement claim. Keep in mind that millions of dollars have been spent in legal fees trying to determine what types of unlicensed use constitute “fair use.” According, try obtaining permission, a license, or a release from the copyright holder to use, reprint or modify their original work. If you cannot reach the copyright holder yourself or by way of an attorney, do not use their work until you’re sure that the content is already integrated within the public domain.
At the very least, give credit to the author of the work that you’re using as a professional courtesy. As always, when in doubt ask a professional. Our legal team at Brim Law, LLC is here to help you navigate the “does and don’ts” of using potentially copyrighted works in your next project.
Your Thoughts: What about your own original, creative work product? How are you protecting your intellectual property online and in the general marketplace?
This article is intended to provide you with general information; it does not constitute any type of legal advice. For recommendations related to your specific matter, we encourage you to review our Practice Areas page for additional information and then contact us to discuss your company’s legal needs.