Before you grab that content, think…

Recently, I’ve been asked about copyright matters and fair use. I thought I’d take a few minutes and post here and hopefully, begin posting here on a regular basis!!

Whenever you take an image or somebody else’s content, unless there are provisions that state otherwise, you are infringing on a copyright….period. It some cases, content may be in the public domain or licensed under Creative Commons are some other open licensing scheme. If you copy and incorporate somebody else’s content without permission, you may get a very unwelcome inquiry in the form a cease and desist letter and an outright demand for payment. Here’s some free advice for you – when you get a C&D letter, take the content down – at least temporarily. The person or entity asserting ownership still has the burden of proving ownership. When you receive that letter, assuming you have indeed taken somebody else’s content, the only thing you know for sure is that you don’t own the copyright. Whether the person or entity sending you the letter owns the content is not the issue.

Right now, the phrase you may be thinking of is the Doctrine of Fair Use. The issue is much more complicated as different countries and confederations have their own copyright laws. A good resource for you to review is this link:

Remember, the country you are domiciled in is likely a signatory to one or more treaties that you are subject to.

Getting back to Fair Use. For purposes here, I’ll limit the discussion to the doctrine in the USA. Legal doctrines are things created over years of case law. Through time, they change. What typically results from cases and their facts are things we refer to as multi-factor tests. These tests are stated in absolute terms. How they shake out in a particular case is by no means absolute because they application of these tests is fact intensive.

Fair Use is an affirmative defense – meaning that you readily admit that you are infringing on somebody else’s copyright, but it is permissible because of Fair Use.

Why have the doctrine in the first place? Perhaps you wish to comment upon and critique something? Perhaps the original work is political and you wish to voice an opposing point of view. Hard to do that without referencing and perhaps copying at least some portion of the original work. Perhaps the nature of your use is educational or news reporting in nature. A good read is this link:

In the USA, Fair Use is based on a 4 factor test:

  • The purpose and character of your use
  • The nature of the copyrighted work
  • The amount and substantiality of the portion taken
  • The effect of the use upon the potential market

Absent your specific facts and how courts have held, these 4 factors don’t mean much and don’t help to resolve one way or the other whether it is likely or not that your use of somebody else’s work constitutes Fair Use. The only way you will ever get a definitive answer is to have a case litigated in a US Federal Court. The likelihood of that is almost nil as very few cases are brought to court, much less tried and even lesser, reach a verdict. Most cases we read about come from the Supreme Court as the stakes in those cases are great or the facts represent a novel twist that could add color to how the law should be applied.

What can the monetary damages be in the US? For starters, you can be compelled to pay the other side’s legal fees. Then there, are the other monetary damages such as lost revenue for the right’s holder. Whatever revenue you derived through use of the work will be disgorged. Then of course there are your own legal fees. Not exactly what you bargained for when you grabbed somebody else’s work!!

A few tips for you to consider:

  • When searching for images, use the licensing filter option. Both Google and Bing make it easy to filter on license type. If the images and content are public domain you can use them straight away. Here’s the key to remember, others can take it from you as well. Best for you to be clear that such content is in the public domain. Take note of where you took the content. You never know, some troll may try to represent it as his. If the content is subject to something like Creative Commons, take heed in those requirements. You typically have to disclaim ownership and note that the content is subject to a CC license. Not doing so puts you in violation of CC. Never forget, CC and other licenses are just that – licenses with terms and conditions you have to comply with. They are not public domain.
  • Make sure on your site you have a disclaimer that rights as to content and images from others are held by others. There are numerous examples. Your site and blog should have at least some rudimentary terms of service. Chance are, the place you copied things from does… :-)
  • If there is content you want to use, ask the owner. You may be surprised that they may say yes – under some conditions. The key is to attribute ownership of that work to make it clear A – it’s not your work and B – whose work it is. Being reasonable can go a long way.
  • You may have to consider paying a license fee for use of the work. This is a business decision you will have to make. It’s important to note that the law demands copyright owners take affirmative acts to protect their work. When you get a C&D letter, it’s not due to the rights holder being a jerk. Courts expect rights owners to not sit on their hands.
  • And finally, establish a relationship with a lawyer in your jurisdiction. Don’t try to be your own lawyer – even if you happen to be a lawyer!

About johnvpetersen

I've been developing software for 20 years, starting with dBase, Clipper and FoxBase + thereafter, migrating to FoxPro and Visual FoxPro and Visual Basic. Other areas of concentration include Oracle and SQL Server - versions 6-2008. From 1995 to 2001, I was a Microsoft Visual FoxPro MVP. Today, my emphasis is on ASP MVC .NET applications. I am a current Microsoft ASP .NET MVP. Publishing In 1999, I wrote the definitive whitepaper on ADO for VFP Developers. In 2002, I wrote the Absolute Beginner’s Guide to Databases for Que Publishing. I was a co-author of Visual FoxPro Enterprise Development from Prima Publishing with Rod Paddock, Ron Talmadge and Eric Ranft. I was also a co-author of Visual Basic Web Development from Prima Publishing with Rod Paddock and Richard Campbell. Education - B.S Business Administration – Mansfield University - M.B.A. – Information Systems – Saint Joseph’s University - J.D. – Rutgers University School of Law (Camden) In 2004, I graduated from the Rutgers University School of Law with a Juris Doctor Degree. I passed the Pennsylvania and New Jersey Bar exams and was in private practice for several years – concentrating transactional and general business law (contracts, copyrights, trademarks, independent contractor agreements, NDA’s, intellectual property and mergers and acquisitions.).
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