by Kathleen Kuznicki, Esq.
(In the voice of a famous redneck comedian!)
Do you think everything online is free for public use? Then you might be an infringer.
Do you play background music in a public area of your business? Then you might be an infringer.
Do you re-post interesting things you see on Facebook or Pinterest? Then you might be an infringer.
Do you imitate a redneck comedian’s famous monologue? Then YOU just might be an infringer.
What is a copyright?
Copyright protects the particular way people expressed themselves whether it be a photograph, an drawing, a novel, a comic book, a television program, a movie, music or any other artistic expression-including a LinkedIn post! A copyright gives the owner the exclusive legal right to reproduce, publish, sell, or distribute an original creative work. A work is original if it is not copied from some other preexisting work, it does not need to be novel or unique. Copyright also gives owners the exclusive right to make a derivative work based on their original work. For example, a movie based on a novel, a short story based on a television series, or a sculpture based on a drawing are all derivative works.
What are some common things people do every day that violate copyrights?
They post articles and images on websites without the copyright owner’s permission. Even if you just post an excerpt from an article, even if you alter an image, and even if you credit the owner, it is still copyright infringement. If you use images on your website that you did not create or that you didn’t license from the owner, you are probably a copyright infringer. It doesn’t matter if you didn’t know; innocent infringement is still infringement!!!
Large stock photo companies are aggressively searching websites for unlicensed use of their copyrighted images. After finding an unlicensed use, these companies send demand letters asking for inflated sums to settle the case or they threaten to take you to court. And if you choose to ignore them…well let’s just say, if you think a hungry dog going after his bone is persistent, he ain’t got nothing on these Copyright Trolls!! Their plan is to essentially “paper” you into submission to pay their settlement fee. These matters can become a long term headache for an unsuspecting business owner, one they do not want to deal with.
Now I know many business owners will want to argue that they were not the ones who put together their website, their newsletters, their brochures, and that the third party developer was responsible. It doesn’t matter. YOU are the business that is using the unlicensed image on YOUR materials, and YOU are ultimately responsible for the infringement. And trust me; YOU will be the one receiving the demand letter.
Maybe now is good time to do an “image checkup” and revise your materials. What a great excuse for updating and invigorating your website! With all the technology available, why not generate your own images? Have fun and get creative!! Personalizing your business’s website and other documents with your own copyrighted images may just spark a new marketing campaign, or maybe it will energize a new connection with your customer base!
Another common infringement is the playing of musical recordings in a shop, restaurant etc. from a personal device, like an MP3 player without the proper licenses from Performing Rights Organizations. Playing music in a public space such as the seating area of restaurant or the browsing area of a shop is considered a “performance”, and the license that you purchase to download music on your personal device does not include a performance license. These Performing Rights organizations have now been sending out cease and desist letters to small businesses threatening infringement suits unless they purchase the necessary licenses or stop playing the music.
When can you use another’s copyrighted material without their permission? You can use another’s copyrighted material if it is considered a “Fair Use”. Fair Use is when you use a portion of another’s work for criticism, comment, news reporting, teaching, research or parody. Some examples of fair use include political ads where articles or video clips are shown to reinforce a point, limited copying made by a student for an academic work, or a parody that incorporates some elements of the work like the “monologue” at the beginning of this article or a Saturday Night Live spoof.
You should use as little of the work as necessary to get your point across, but how do you determine how much is okay? There is no hard and fast rule, like the 10% rule I have seen cited elsewhere; it is determined on a case-by-case basis. Commercial use vs. noncommercial use is also considered when determining if a use constitutes a fair use with the key consideration being: Will the other party’s use cause the copyright owner to make fewer sales? —— I am pretty sure that the redneck comedian referenced above will not lose one dime based on my fair use of his monologue!