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How does fair use of copyrighted work apply to branded content?

Photo courtesy Horia Varlan via Flickr

As professional communicators continue to diversify their output of branded content into an ever-growing variety of formats–from blogs to YouTube videos, webinars, podcasts, image galleries, slide presentations and many others–copyright compliance has become a growing area of concern. More PR and marketing pros are wrestling with questions like these:

  • Can I post this video of our industry networking event even though the venue’s sound system can be heard playing a copyrighted pop song in the background?
  • Can I excerpt a paragraph of this copyrighted news article or research paper in my blog post?
  • Can I put copyrighted images in my slide presentation that I find in a Google Image Search?

These questions need to be taken seriously and not just for the sake of legal compliance, though that would be reason enough. If we always avoid copyrighted material, we can find ourselves hamstrung when we try to participate in conversations online with our constituents and customers. And copyright holders can benefit from the exposure when we share their content within the limits of the law.

I’m reading a newly published guide to these issues, Reclaiming Fair Use. Written by two American University professors, Patricia Aufderheide and Peter Jaszi, the book describes how fair use doctrine established by U.S. case law–the right to reuse copyrighted material for a new purpose like illustrating a point of argument–is enjoying a resurgence in the digital age. This comes after a long period in which copyright protections have grown “longer and stronger”, providing more protection to copyright holders for longer periods of time.

Aufderheide and Jaszi advise content creators to ask these questions before excerpting a piece of copyrighted material, such as a news article quoted in a blog post:

    • What purpose am I putting this material to? It helps if your purpose is different from the copyright holder’s.
    • How much do I need for that purpose? Use the minimum amount necessary.

The authors say the safest approach is usually to provide a description of the content in your own words along with a link to the original source, but it’s not necessary to ask permission to excerpt a copyrighted work when exercising your fair use rights. Fair use, they argue, is “a bold demonstration of the need to share culture in order to get more of it”.

Unlike the Digital Millennium Copyright Act (DMCA), which offers protections to online service providers like YouTube who comply with requests from copyright holders to remove copyrighted works, fair use actually protects the limited use of copyrighted content in many cases. Some bloggers think it’s the DMCA that allows them to post a clip from a music video on their blog, when in fact their use of the video is more likely to be protected under good old fair use.

Of course, organizations tend to err on the side of caution with such issues. But today, that can mean declining to participate in fast-moving online conversations that are vital to your business, simply because you’re hesitant to even reference the article, video or image in question.

How do you approach the handling of copyrighted material in your branded content?

 

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