Last week was a confusing, and disheartening, one as I found myself engaged in several conversations with clients and colleagues about copyright infringement as it applied to videos, photography and music. Confusing because I didn’t realize how many people misunderstood the basics of copyright, and disheartening because of the push back from those presented with the idea that their actions would be considered theft.
Because that is what we are talking about when we use the words “copyright infringement.” Theft of someone’s intellectual property whether it is their words, their photos, their ideas, their videos or their music. And, as many have found out, the use of unlicensed (or theft of) images, photos, videos can not only result in receiving a ‘cease and desist’ order from the license holder, but also a fee for its past use. (Think you can ignore it? Think again).
So how can you avoid copyright infringement? I would like to say “trust your gut,” but based on these recent conversations, I’m afraid our gut instincts aren’t pointing us in the right direction. And while I am not a copyright expert (I cannot emphasize this enough), here are some of the things that guide my decisions:
Know the basics of copyright I do not expect anyone, other than a copyright attorney, to know all of the ins and outs of copyright, but you do need to know the basics. The Copyright and Fair Use Animation from Commonsense Media is a great place to start.
Don’t look for the © As a result of the Berne Convention of 1886 copyright is created at the moment a work is “fixed” with no requirement for registration OR the use of the © symbol. Source: Wikipedia
Understand the term “fair use” This is the term that gets flung at me the most when someone is denying copyright infringement. Fair use only covers schoolwork & education, news reporting, criticizing & commenting and parody. Since most companies are not engaged in any of these things, and are creating items for profit, I would suggest that their use of the copyrighted material is probably not covered by fair use.
Everything started somewhere To my knowledge, the Internet has not started creating items on its own. Every blog post, recipe, article, photo, Internet meme, video and song or bit of music was created by SOMEONE. If you are are not the person who created it, then you should consider carefully whether or not you should use it.
Don’t assume they will appreciate the exposure Another of my favorite excuses, particularly as it pertains to publishing (stealing) someone’s content in its entirety. If you really want to help someone out, consider writing a short intro for your website which then links to the full article to which you would like to send traffic.
Give credit Even if you’ve received permission, or your use is covered by fair use, consider giving credit to the creator. (I’m looking at you my dear children).
Personal use is not the same as business use Yes, people use popular songs and images in their personal projects (baby videos, etc), that does not mean you can do the same thing for your business. In fact, there are documented cases of wedding photographers being sued because they used copyrighted music in client videos, and videographers running the risk of litigation just by having music from the venue in their final product. (Oh, and the truth is, you probably shouldn’t be using copyrighted music for personal projects either. Sorry.)
Expect you will get caught Just because your flyer, presentation, or video is being produced for internal use, there is always the risk that it will end up “in the wild” through no fault of your own (for example, a photo from an internal presentation ends up in an external deck; a great video gets forwarded by your boss to colleagues or submitted for an award). Once it is public, you run the risk of getting caught.
Put it in the “real” world Would you cut out a photo from a magazine and paste it into your sales flyer? Grab a mug off a display because you’ve seen it “all over the place?” Throw a CD into your bag because “no one will know?” I know these examples may sound ridiculous but if you wouldn’t do it in real life, why do we think it’s okay online?
Just ask Years ago we reached out to a photographer on Flickr about using a photo for a client project. Her response “absolutely. . . and thanks for asking, most people don’t.” Instead, individuals and agencies take photos from sites like Google Images, assuming as I was recently told, that they were vetted and free to use. They are not.
When in doubt, don’t It’s that simple. If you don’t own it. If you don’t know who owns it. If you don’t know if you can/should use it. Just don’t use it. What’s worse? To tell your boss you won’t use the “perfect” song, or to tell them later you are being sued?
Don’t shoot the messenger As I said, this past week was disheartening because of the response I received when questioning the use of unlicensed video and music. It’s not easy being the rule follower, particularly in a world that seems determined to justify copyright infringement (stealing), and ESPECIALLY when it’s a client pushing for the use. Agencies and content creators can be put in the awkward situation of having to either do the work, risking litigation and risk-to-reputation, or losing a job. (I hope at this point you know what our decision would be).
I know this post may sound a bit “fed up,” and I’ll be the first to admit that no one is perfect. We have all made mistakes when it comes to copyright infringement. But my goal is to continue to do better by focusing less on the rules and instead on doing what’s right.