TABLE OF CONTENTS
What is Copyright?
What is Fair Use?
Copyright and Fair Use in Action
5 Best Practices for Copyright Compliance
4 Factors for Fair Use
Everybody Wins with Copyright Compliance and Fair Use
Most people don’t intend to break copyright laws. They aren’t trying to pass off somebody else’s work or ideas as their own. They’re just sharing content with friends, family or coworkers. What’s the harm in that?
There can be quite a lot, namely things like litigation and hefty fines. That doesn’t stop people from republishing content on blogs, social media and other platforms. Quite the contrary, in fact.
Outsell, a market research firm, estimates that content sharing has increased dramatically since 2007. Today, people share content with at least 11.2 people in their network per week, up from 7.2 people per week in 2007. (click to tweet) If those 11.2 people share the content with their own 11.2 people…well, you get the idea.
The content has gone viral, regardless of the copyright in place.
“As information sharing accelerates and becomes more critical, the likelihood of copyright violation arises,”
says Miles McNamee, vice president of licensing and business development at Copyright Clearance Center.
Interestingly, executives often are the worst culprits. Outsell finds that 48 percent of executives believe it’s okay to share content as long as it’s not used for commercial purposes. When it comes to paid content, digital or print, 45 percent believe it’s fine to share the information.
The problem only worsens with today’s content glut. On a day-to-day basis, you publish, promote and share owned and earned media. And then there’s native advertising and user-generated content, among other things. Copyright compliance and fair use gets messy, fast. (click to tweet)
Just consider recent headlines with Ashley Madison or Conan O’Brien. It’s a convoluted and heated battle. Copyright issues and infringements range from music and video to written content and from graphics to fabric patterns.
And if you’re good at your communication job, watch out—you’ll be under greater scrutiny for copyright and fair use infringement. But don’t worry. By understanding copyright compliance and fair use, you can make a statement without becoming the statement.
What Is Copyright?
A copyright legally protects creative works and ideas, i.e., intellectual property that is published, broadcast, or presented or displayed publicly. An example would be this white paper, a customer’s photograph, or a session at a conference.
Other protected works include literary works; music recordings; architectural drawings; blog posts; journalism; movies and television shows; corporate videos and original videos posted on YouTube, Vine and elsewhere; podcasts; choreographed dance; artworks; and more.
The point of all that is to protect “original expression.” Say you write a blog post on PR and content marketing. It’s an original expression because you wrote it. The minute it goes live online, it becomes a “tangible expression” of your idea and comes under copyright protection.
That doesn’t mean you have the corner on the subject. (click to tweet) Other people can talk or write about it, but they must find an original way of doing so. They can reference your piece but to copy and redistribute it in its entirety would violate the copyright, unless you’ve established otherwise with a license or online distribution service.
Over the years, Congress, the courts and industry associations have sought to further clarify copyright protection. It’s a colorful history, but the results and implications are of more interest. One is the recognition that copyright law is constantly evolving. It’s wise to pay attention to what’s happening with it.
The other has to do with how copyright works today. Anything published in the United States before 1923 is public domain. You can use, copy, reuse or modify the work without getting the express permission of the original author.
Any content published after 1977 and onward has a copyright for the term of the author’s life, plus 70 years, before entering the public domain. (click to tweet) Content published by the federal government immediately enters the public domain, such as the popular “Cover Your Cough” handout from the CDC.
What Is Fair Use?
Fair use allows copyrighted material to be used for a “limited and transformative” purpose in order to comment upon, criticize or parody. Examples are news stories and late night talk shows . With news stories, journalists use copyrighted materials in order to comment and critique. Late night talk shows, in contrast, tend to parody those same materials.
But what does “limited and transformative” mean? It varies from person-to-person, leading to gray areas and legal battles. Just listen to what the U.S. Copyright Office has to say on the matter:
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Don’t panic. Start with this question instead: Will using this source cause commercial harm to the copyright owner? (click to tweet)
If what you’re using is something that the owner traditionally sells or licenses, it’s probably not fair use. An example is using content only available through a subscription, such as articles from “The New York Times” or “Harvard Business Review.” Citing heavily from their work, even with attribution, isn’t fair. It siphons off their revenue streams. They may not mind a quote now and again, but they’re going to protest if its use weakens their pipelines.
If the content isn’t licensed or sold, you likely can use it without fear of penalty. An example is citing someone like Rand Fishkin in your SlideShare on big data and its benefits to small businesses. Another is media coverage secured for either your brand or a client, as well as links shared online.
Quotes, clips and links generally are fair. They become “unfair” when the content is cut and pasted (plagiarism) or when credit isn’t given where it’s due (non-attribution).
Those are simple examples, and copyright and fair use can get murky after that. It’s always a good idea to have legal counsel on hand if you ever have the slightest question about permissibility. With copyright and fair use, it’s best practice to seek permission first rather than ask forgiveness later. (click to tweet)
Copyright and Fair Use in Action
- Can I copy this article and send it to my client?
- Can I quote this copyrighted news article or research paper in a blog post?
- Can I use copyrighted images from a Google Image Search in my SlideShare presentation?
- Can I post this video of our brand’s event even though you can hear a copyrighted pop song in the background?
Obviously, copyright compliance depends on a lot of factors, and no one situation is exactly like another. (click to tweet) In each instance, you need a clear understanding of the source of information; the copyright protections already in place; and the exact way the content will be reused. All three points determine whether using the information as-is is legal or if obtaining a license or written permission is necessary.
Knowing the factors can keep you out of legal trouble and have great benefits for your brand, too. If you’re sharing an influencer’s copyrighted material (within the bounds of the law), you can increase their exposure. It’s the mutually beneficial relationship at work. You get good content, and they get increased recognition.
The other benefit is knowledge. You know why, when and how to protect original content. This doesn’t serve you alone. It helps your clients, too. By claiming and protecting copyrighted content, you create opportunities to increase awareness and reach—think of the infographics many brands create. (click to tweet) If an influencer were to republish your original and licensed creation on a
blog or social media, you both would profit.
5 Best Practices for Copyright Compliance
Attribution is the golden rule of copyright compliance. Treat other writers, bloggers, podcasters and communication professionals the way you’d like to be treated. Give credit where credit is due. (click to tweet)
Another resource is Creative Commons. They have an attribution license specifically for publishers who want their original content to be redistributed. If you use a content redistribution service, check their fine print for information about licensing and permissions.
When in doubt, always contact the publisher and ask for written permission. Also, if you don’t need a source to illustrate the point you’re making, don’t use one. But if you do need one, always identify the source and link back to it.
It’s a good idea to look at content annually to assess whether works are still under copyright or have entered the public domain. Also check licenses and permissions to see what has expired. Make sure copyrights, licenses and permissions are up to date, or allow them to expire if you no longer need the content.
An example is copyrighted material used for sales purposes. Permissions must be alive and well if you wish to use the material, either in print or digital. Also know that you may be required to pay a fee for reprint rights.
Similarly, review contracts with consultants who do content creation for you and with partners who collaborated with you. The written agreement should state what rights each person has and when and how those rights expire.
For example, who owns the rights to branded content? You, or the person hired to create it? Or do your rights expire at some point and return to the author?
If you work with a partner, both parties usually have rights. Without explicit rules in place, the content has a copyright for the duration of both your lives, plus 70 years.
Always, always have an agreement in place when working with a consultant or partner. It’ll save everyone from a lot of grief and potential legal problems. (click to tweet)
Most copyright issues arise because of a lack of knowledge. (click to tweet) Keep teammates informed. Develop an internal wiki or other resource. Maintain a list of trusted and up-to-date resources on the subjects of copyright and fair use. Hold trainings periodically. And involve executives, managers, and other influential employees. Copyright compliance begins with leaders setting the example.
4 Factors for Fair Use
Fair use may often be a gray area, but resources and commonsense approaches are available. The first resource comes from the U.S. Copyright Office’s Section 107 of the Copyright Act. It outlines four factors for determining fair use:
- Purpose: The purpose and character of the use, including whether it is for commercial use or for nonprofit educational purposes.
- Nature: The original intention of the work, whether it was for commercial or noncommercial use.
- Amount: The amount and substantiality of the portion used in relation to the copyright-protected work as a whole.
- Effect: The effect of the use on the potential market for or value of the copyright-protected work.
To make sense of the legal terminology, consider “Reclaiming Fair Use” by professors Patricia Aufderheide and Peter Jaszi. It’s an excellent guide, with practical questions and advice.
Another resource, and perhaps one to be placed beside your copy of the AP Stylebook, is “Clearance and Copyright” by Michael C. Donaldson and Lisa A. Callif. It covers film and television in detail but is extremely helpful to anyone creating, publishing and sharing content on the web.
Finally, most universities and copyright centers offer checklists for copyright compliance and fair use. The one at Copyright Clearance Center, Inc. is particularly fine and boasts checklists for each of the four factors listed above.
Everybody Wins With Copyright Compliance and Fair Use
First, you become more aware of the nuances, the “shades of gray,” when it comes to copyright protection, infringement and fair use. (click to tweet) Second, protecting your own content becomes as important as protecting the content of others. It’s a sign of respect, and it’s a surefire way to win favor with not only people and brands cited in content but also your target audience.