You Use is Not Fair – Copyright Myths and Avoiding Issues

This is my creation, it is not yours.  Please don't steal it.

This is my creation, it is not yours. Please don’t steal it.

You may think you understand copyright law enough because you have never gotten a cease and desist letter, but beware the pitfalls of your fair use misconceptions.  Copyrights, like all intellectual property, are protected to further the good of society.  They give to creators some limited right in time, and at the end everyone gets the benefit.  I don’t know whether there is a general lack of respect when it comes to creative works, or a lack of understanding, but it seems that people don’t understand enough of the law.

I will start with the bottom line.  If you use anything that you think was created by someone else, you need to carefully consider what you are doing.  The greater the use, the greater the risk.  The greater the exposure, the greater the risk.  At the end of the day, you need to have a caring and understanding lawyer on your side to help educate you and counsel you.  Why?

My personal opinion is that most creatives form their understanding of copyright law during their education.  In an educational setting, the defenses to copyright infringement are pretty good.  They transfer that to the work place and then we get all sorts of trouble.

Mistakes will hurt a lot

Being respectful of others creations will generally help you steer clear of problems.  When the problems do occur, being respectful can help you avoid costly litigation.  Litigation in this area can be very costly, and even the costs of making a nuisance lawsuit go away are significant.  Making a mistake will cost you.

Everyone thinks that what they do is fair use.  I came across a nice table which lists ten common misconceptions about fair use defenses.  The great part about the table is that every answer on the right hand column is no.  Everything you have ever said to a lawyer, or you have heard from a client, is in that table.  The first one is the best.  “Anything on the internet may be freely copied or used …”  That is so precious.  How often have you heard that as a lawyer?  How often have you said that when questioned about use.

Other highlights in client-speak

    • “But I gave credit to the author.”  That’s really nice.  So thoughtful.  It makes it so much easier for me to prove willful infringement.  Not only did you copy the work, you know who you copied it from.  Thank you for making my case.  However, depending on the license they attached to it, that might be enough, but that is their choice not yours.  NEXT!
    • “It didn’t have a copyright symbol on it.”  Depending on when you learned your copyright law, this may have been true.  It is no longer true.  Not since 1989.  I don’t need to put a mark on it at all.  All I need to do is fix the work in a tangible medium.  The internet is a tangible medium.  NEXT!
    • “Fair use has four things to it, how hard can it be.”  I can’t tell you something is fair use.  Your lawyer can’t tell you.  You can’t tell yourself.  Fair use is only a defense and it is only an argument.  The only person who can say whether the use is fair or not is a judge.  Feel free to take your use to court.  Your lawyer’s fees may far outstrip the value of your campaign.
    • “It’s just an educational presentation to the team.”  Let me pat you on the head for helping your employees develop professionally.  Then let me wrap you on your knuckles a little.  If you work for a company that makes a profit, your use is commercial.  Everything you do is commercial.  Even that presentation you gave to two people in the basement conference room is commercial.
    • “I got it from YouTube, they let me use it wherever I want.”  Wrong, wrong, and so wrong!  Look at the terms of the site.  By they way have you noticed how hard it is to get a YouTube video out of the website and use it offline?  That should be some indication that you shouldn’t do it.

It’s safer to get permission, and cheaper than saying you’re sorry

If you are a brand and using someone else’s creations, get their permission.  Go ask them.  Yes, they may want some money.  They may actually want to give it to you for free for the few minutes of fame.  Depending on your use, think about drafting something more formal than an email.  For instance, if you are taking someone’s picture and placing it in a national print ad, I would suggest formalizing the agreement.

Even in the case of user-generated content portals where you can control the licenses ahead of time, I would suggest you consider getting agreements for further use.  Again, it depends on the use.  Taking someone’s picture off a review and putting it in an internal presentation is a simple thing.  Rely on the terms you already have in place.  However, national campaigns may be a different beast.  Also be aware of anyone else’s rights to the image or things in the image.

Using content is infringement, plain and simple

Even if you get fair use right, you need to prove it.  It doesn’t take away the infringement.  Remember that.  You are still stealing their stuff.  It’s just that the law allows you to.

Respect your users

If you start from a position of respect for people’s creations, you will do right by them.  It will also make your lawyer’s job that much easier.  Educating yourself about areas of the law that impact your creative work is not just about finding the one section that allows you to do what you want.  It is about understanding how creations are protected.

If you think you have a problem, turn the table around.  If your company created the content and a competitor used it would you feel harmed?  If the answer, is yes, you have a problem that you need to address.  Go address it.


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