Copyright law is very complicated - so much so that even some lawyers in that sector are having a hard time figuring out how it applies to digital marketing and social media. Many businesses pay attention to copyrights when advertising, but the rules can get murky when applying it to Facebook, Twitter, or any other social media platform. The penalty for even a first-time infringer is pretty harsh, so a business must be very careful when using images for itself and especially for its clients. There is a reason that restaurants have their own cheesy birthday songs (“Happy Birthday to You” is copyrighted by Warner Brothers, which reportedly warned the Girl Scouts that they would have to pay to sing the song around the campfire). Below is information to help you stay compliant with copyright laws, lest litigation should result.

Which works fall under copyright law:

Copyrights pertain to almost any created content, be it music, video, image, text, performance, etc. Here are some examples of copyrighted works that are most commonly encountered:

- Literary works: blogs, books, cartoons, e-mails, letters, magazines, memos, newspapers, newsletters, trade journals, training materials, and other written material in paper or digital format

- Pictorial, graphics, and sculptures: three-dimensional artworks, as well as two-dimensional cartoon characters, graphical images, maps, and photographs in paper or digital format

- Sound recording and accompanying words: recorded or performed on cassette tapes, compact discs, phonographic records, podcasts, and other media

- Audiovisual works: motion pictures, multimedia presentations, demonstrations, and slideshows in analog or digital format

Everything always has a copyright and can never be used

This is not true, but you should assume that it is. Most works are automatically copyrighted the moment that they are created and do not need to have it explicitly stated in a phrase or with the © symbol. The only works found online that can be used legally are those that give express permission to use it (for example, Wikipedia publicly states that all images on their site are free to use, and some digital works may say “copyright-free”), or the ones in the public domain. Even so, you almost always have to credit the source or creator unless otherwise stated.

Public Domain

Works in the public domain do not have a legal owner and are free to use. That work’s copyright has either expired or it was dedicated to the public domain. Works created before 1923 have expired copyrights and those that were published before 1964 and not renewed are also void. If you really want to use material and you are not sure of its copyright status, you can search the U.S. Copyright Office’s database.

Open License

Some creators want to spread their works and so they automatically grant “reprint” permissions via an open license. Many open licenses are filed with Creative Commons, which also has a searchable database where you can pull images. However, this does not imply free use. If you use an openly licensed works, you still have to credit the source or creator, but the Creative Commons database will have details on the permissions and requirements of each work.

Fair Use

Here is where it gets a little tricky - Fair Use. The purpose of the Fair Use Doctrine is to allow for limited and reasonable uses as long as the use does not interfere with owners’ rights or impede their right to do with the work as they wish, and the material is not used for capital gains (as in, you are not making money on this image or using it in advertisement). Section 107 of the Copyright Act states: “[...] the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

There is a checklist of four primary factors set by the Fair Use statute:

1. The purpose of use (described above)

2. The nature of the work used

3. The amount and substantiality of the work used

4. The effect of the use upon the potential market for or value of the work used

When prosecuting, a court looks to see that all four factors. Here is an example: You are reviewing a product, let’s say hand cream, and want to include a high quality picture. You could take one, but then it would include your messy desk and would be either over exposed or under. You go to the lotion brand’s website and save their professional image of the lotion to upload to your site. A photo will not substitute for the actual product, so the owner’s rights should be very minimally affected. Therefore, your right to use the copyrighted image would likely be permitted under fair use.

The Fair Use Doctrine was created in an effort to promote the greater good, to allow copyrighted works to be used without permission for the benefit of the public. It helps us use images of products when referring to them, pictures of public people when discussing news stories, and much more.

Fair Use is one of the most complicated, gray areas of copyright law, but there are plenty of resources. For example, here is a Fair Use Evaluator to help guide you through the system. The Stanford University Library also has a rich copyright and fair use resource located online. 

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