Dawn Conway, SVP of Global Content Licensing at Cision, and Peter DiCola, Northwestern University Associate Professor of Law, recently hosted a Copyright Laws for Communicators webinar. They didn’t have a chance to answer every question our participants asked, so Peter took to our blog to arm you with more knowledge on copyright.
Thank you to Peter for his commitment to this topic and for sharing his insight.
Disclaimer: Peter DiCola’s comments in the webinar and answers to the following questions are not legal advice. They are for explanatory purposes only to help others learn about copyright law. Your particular business and the context of your business activities may have special features that would affect the legal analysis.
Q. Are businesses like Copyright Clearance Center doing anything to protect me?
A: Copyright Clearance Center’s Annual Copyright License gives marketing professionals and their colleagues the freedom to share content with each other while respecting the rights of copyright holders. CCC Annual Copyright License enables employees to share content from millions of journals, blogs, newspapers, e-books and more while minimizing your organization’s copyright infringement risk. Learn more here.
Q: What makes something “copyrighted”?
A: Copyright under U.S. law applies works that are (1) “original works of authorship” and (2) have been “fixed in any tangible medium of expression.” (17 U.S.C. § 102(a).) “Original” in copyright-speak does not mean novel or exciting. It just means created independently by some person, and showing some tiny amount of creativity in the process. “Fixed in any tangible medium of expression” means printed, written down, captured on tape, saved to a hard drive, and so on. Fixation can get complicated, but those are the basics.
The important thing that lots of people don’t realize is that (1) originality and (2) fixation are the only legal requirements for a copyright to exist. You don’t have to register the work with the government—unless you end up wanting to sue someone for violating your copyright, in which case you must register.
Q: [We noted in the webinar that linking to a website is often permissible.] But you need some info to offer the reader before you give them a link. How much info can you legally give? Can I say in XYZ article they talk about…and talk about it for a paragraph and then link?
A: If you describe something in your own words, especially something factual, and thus are not using the copyrighted text of the article, then you haven’t violated copyright law since you haven’t reproduced any of the copyrighted text. Copyright protects particular expression, not the ideas expressed. (Or at least that’s how it’s supposed to work. Once in a while a court will may rule differently) Even if you quote from something in a limited way—a few words here, a sentence there—it may be fair use, depending on the specific context.
Q: What if a brand posts a YouTube video of a Music Video or Song (not the official video, just uploaded by a user) on their Facebook page? Is the brand responsible?
A: I’m going to assume that “brand” is just short for “a company that happens to have a brand.” Posting a video made by someone else involves both reproducing the video (making a copy on the company’s own computer) and distributing the video (sending it to users who request the video when browsing on the company’s website). Both reproduction and distribution are rights that come with a copyright. So if the video contains copyrighted works for which permission has not been obtained, the company might have violated copyright law by posting the user’s video, even though the company didn’t make the video.
However, I did say “might” have violated copyright law. It’s entirely possible that a legal defense like fair use could apply, depending on the specific context. It is also possible that the copyright owner has agreed to let YouTube continue to offer their copyrighted works as used in user-generated videos, in return for Google/YouTube sharing the ad revenue generated by the video’s page. In that case, the video would be considered to have been posted with the copyright owner’s permission.
Q: Can you elaborate on Creative Commons. Is it okay to use an image for a book that will for commercial use if the image is creative commons?
A: Creative Commons licenses come in different versions, depending on what the copyright owner chooses. To figure out what you can do under a Creative Commons license is easy. Just (1) find out what version the copyright owner of the work you want to use has chosen and (2) go to CreativeCommons.org to read about what the license allows you to do, in plain English. As for your specific question, some Creative Commons licenses allow you to make commercial works; other Creative Commons licenses forbid it. So you’ll have to go check.
Q: If we participate in an interview and the article is online and not behind a pay wall, can we post a link to it on our site?
A: Posting a link should not present problems under U.S. law. First of all, offering a link does not constitute a public display of the article. So you have not violated the copyright directly. Secondly, you have not contributed to any users who click on the link violating copyright law; since the article is on a public website, not behind a pay wall, your users are free to view the article themselves. I indicated that linking was not a problem during the webinar. But this more complete answer relies on Patry on Copyright (a leading treatise), volume 5, section 15:7. Note that other countries may have made different decisions on this issue.
Q: Can Google and other search engines be contributory liable for copyright infringement?
A: This is a big issue; really too big for a brief webinar or Q&A. The answer, of course, depends on which search engine or other type of web platform you’re talking about and the specifics of what it does. Offering plain old links does not give rise to liability, for the reasons I mentioned above. Offering excerpts or clips from the sites being linked to is an issue that’s currently being disputed in the case of Associated Press v. Meltwater, a news aggregation service.
Q: TV news stations typically state that their content is copyrighted, so can one download a TV news item, said to be copyrighted, and sharing same, without permission?
A: Television programs are certainly eligible for copyright protection. And reproducing and distributing a copyrighted work might be copyright infringement, since reproduction and distribution are among the exclusive rights of the copyright owner. So copying and sharing a news report will be infringement unless an exception like fair use applies. To address your specific situation and the way you’re using news clips, one would need a lot more information about the context. For instance, as we emphasized in the webinar, fair use is usually a context-specific, case-by-case kind of doctrine. (Sometimes, industries have a set of guidelines for what most people agree is fair use and what isn’t. These guidelines can be very helpful although not failsafe, since the guidelines are not themselves part of U.S. law, just attempts to lay out best practices.)
Q: What about ad hoc emailing of whole newspaper or magazine articles? Is this acceptable if it happens only very occasionally?
A: There’s nothing in copyright law that protects someone who only violated copyright law a few times. In other words, you haven’t offered a defense that the law would recognize, even if it changes the ethical implications of how badly you feel about it. One violation of copyright law is enough—even if you are completely unaware of copyright law and how it works.
In contrast to the number of times you violate the law, the number of copies you make can matter. A court would pay attention to how many people you’re e-mailing copies of newspaper or magazine articles to. If you only sent a copy to one person, you have a much better argument that your activity should count as fair use—the kind of sharing that a copyright owner should expect and tolerate—than if you sent it to a hundred clients and gleaned a commercial benefit from doing so.
Q: What are the remedies for copyright infringement?
A: If a person or firm is held liable for copyright infringement, it can be subject to an injunction (an order to do something, not to do something, or to stop doing something); actual damages and profits; attorneys’ fees; something called statutory damages. What statutory damages means is that even if the plaintiff experiences no actual harm, it can receive up to $30,000 per work infringed for regular infringement and up to $150,000 per work infringed for “willful” (loosely speaking, knowing and/or purposeful) infringement. The judge or jury decides what level the statutory damages will reach. This is why the everyday implications of copyright law are so important: the potential liability for ordinary people and small businesses can be huge, if they’re unlucky enough to be singled out for a copyright infringement lawsuit.
Thank you again to Peter for the time and expertise he shared with the Cision audience. If you want to learn more about Peter and his contributions to the field, click here.