Using Copyrighted Material: What You Need to Know

Shawn Fanning, founder of Napster, at a press conference Bloomberg

Do you think Creative Commons means free for grab? Do you think author attribution means you can simply utilise the content without permission? Do you believe Fair Use Policy is a green light to use other people's music? If you answered yes to all or any of these questions, then you have a lot to learn about copyright. 

The internet has allowed all of us to quickly and freely access a whole world of content. From images to videos, and graphics to articles, we have an unprecedented level of exposure, which is something that we tend to take for granted every time we open, click and load a webpage. 

As a result, several myths have evolved over the last decade or so pertaining to the use of copyrighted materials, trademarks and other intellectual property on the internet. Whether you are a website owner or a YouTube creator, many of us are unaware in regards to what exactly we can or can't use, which is potentially dangerous ground when it comes to legal consequence.

To help content creators navigate this grey area, courts have been reforming outdated laws in an attempt to clarify the situation. Whether it is Fair Use or Creative Commons legislation, there is a lot that business owners need to understand about copyright. 

For web-based businesses, it is essential that you understand things like trademark, copyright law and infringement. Otherwise, you might find yourself significantly affected by the consequences of such actions. 

Knowing the difference between copyright and trademark is a good place to start.

What Is the Difference Between Trademark and Copyright? 

Copyright is generally concerned with artistic and literary works, such as books, articles, videos and paintings, whereas a trademark is the legal protection of any material that defines a company brand, such as a logo, phrase or likeness. 

The Risks of Using Copyright Materials 

Many of today's millennial internet users will likely have become acquainted with copyright in the early 2000s when peer-to-peer file-sharing platforms such as Napster, Limewire and Imesh gained in popularity. As these sites became increasingly notorious, lawsuits were filed by the owners and producers of the files in question (generally musicians), with users discouraged from downloading and sharing content through threats of heavy-handed legal action. 

Fast-forward to today, however, and the act of illegally downloading and using copyright materials remains ubiquitous, especially as technological advances have made online anonymity easily possible. It's not just individuals downloading movies or music anymore, though; one of the biggest culprits of using copyrighted materials without permission is websites. 

In the quest to publish as much content as possible, whether it's for design purposes or to attract visitors, website owners neglect the fact that they can't use some of the content they have attained in one way or another. Thus, they will potentially face the ramifications of taking these risks. 

Enforcement of copyright laws isn't perverse, but you can still be caught in violation. If you are found to be infringing on a particular copyright, for instance, then you could potentially face a lawsuit with significant monetary penalties (the severity of which can depend on several factors, including your jurisdiction). You could even be charged with criminal penalties for more severe violations. 

That said, high-level legal action isn't necessarily the de facto response; most content creators will not sue individuals for using their materials without their permission. However, if you are contacted by a copyright owner and are requested to remove the offending article, then you should immediately abide by this request, if not out of common courtesy then for the threat of escalation. 

Larger and more powerful artist organisations, meanwhile, such as the MPAA and the RIAA, are not so generous. Although legal precedents do not yet exist (many cases are still to be heard) and the logistical technicalities are complex, the legal costs alone could significantly affect your business.

The Risks of Using Trademarked Content 

Before getting into the risks of using trademarked content, it should be noted that you do not need permission to use a trademark if it is for editorial or informational purposes (or if it is used for a comparison of products). 

Using trademarked items can be a lot trickier, however, particularly in today's highly globalised economy. There are several things you need to consider here:

  • Whenever you're writing about something that is trademarked, you should integrate the commonly known ®, TM or SM symbols.
  • If you're using a logo for commercial purposes, then you must seek out permission from that logo's trademark owner.
  • There is such thing as a trademark parody, which is acceptable if it doesn't compete or confuse and is deemed a parody.

If you are caught using trademarks on websites without permission from the owner, then you can suffer the same types of consequences as using copyrighted materials without permission (i.e. both monetary and criminal penalties, depending on the severity of the case). 

Tips to Use Before Using Someone Else's Work 

As a fledgeling business owner, you may have no other choice but to use someone else's work, especially if you are not an expert in writing or digital design. Therefore, you may be tempted to take the risk, hoping that the work in question is not copyrighted or has a trademark attached. 

However, this is the worst option to take, as the risks far outweigh the potential rewards. 

Instead, here are five things to consider when using someone else's work: 

Always Conclude That It's Protected 

When in doubt, always conclude that that image, video or news report is protected by copyright. By adopting this attitude, you will stop yourself becoming a culprit of infringement. Always assume that everything in the online world is protected because often, it is.

Seek Permission to Use the Content 

After you have realised and accepted this assumption, why not simply seek permission to use the content? You may be surprised to find out that the artist may decide to allow it for free, as long as they are appropriately attributed. 

Of course, on the flip side, if they reject your request, then you must abide by their wishes. 

Remove Unauthorised Material from Your Website 

If you were impetuous when you first launched your website and you decided to utilise a wide array of content without receiving permission first, then you must remove this unauthorised material. By doing this, you will prevent any complaints or lawsuits by creators or organisations. 

Look Into Claims Made by Content Creators 

Once your website has grown to a significant size and your business is attracting sizeable revenue, then you will come under increased scrutiny. If a content creator claims that you have stolen and used their work without permission for your benefit, then you should look into their complaint immediately. 

If it turns out to be true, then apologise to the person and inform them that you will be taking it down immediately, and do just that. We all make mistakes from time to time, and if you are honest and remorseful, things will likely go no further. 

Read the Click-Wrap Agreement

If you stumble upon freeware or "royalty-free" materials, you may be tempted to use them without any authorisation. In all likelihood, though, it will be explicitly stated in the terms and conditions of the click-wrap agreement that you are not permitted to distribute or copy the content for an intended use without permission. 

It may be possible to get away with this error once or twice, but be sure to read any click-wrap or "Read Me" documents in the future. 

How to Protect Your Copyrighted Material 

Of course, copyright misuse works both ways; as a content creator, there are numerous steps you can take to protect your copyrighted material online. These protections will ensure that your work is not stolen or misattributed by another party: 

Licensing 

In cases where you don't mind your content being distributed, you can - as the creator - demand that it is done so under certain terms. This solution is known as a Creative Commons license and creates a bridge between your original work and those who may wish to use it for something specific. 

Principally, it serves as an agreement between you and the respective party and establishes that your work is protected under copyright law. You can then determine if you are happy for your work to be used commercially with attribution, or only in cases where there is no monetary gain. 

On the whole, a Creative Commons license provides some leeway and is often the most reasonable solution.

Copy & Paste Block

By using certain types of scripts, you can block users from simply copying and pasting your work. A simple search on Google will present a list of scripts or body tags to incorporate into your work so that someone can't just lift your work through the power of Alt C + Alt V. 

Right-Click Block

The addition of a simple JavaScript programme can prevent a visitor from right-clicking on your website and saving text or images and, while it's not a foolproof protection method, it can help to deter the average "thief" from saving or copying content from your page. 

Watermarking 

If you are a digital artist, then a rudimentary watermark may suffice. 

Whether it's a logo or a digital design and you're spotlighting your work on a website, the safest and best method to stop your creations from being stolen is a watermark. There are two types that you can use: 

  • Digital Watermark: This installs data about the owner and usage rights of your content and enables you to track those who may have decided to lift your materials. 
  • Graphic Watermark: This is a transparent and conspicuous logo or tag that blocks a specific part of your work, which will make the theft of your art less alluring. 

Although copyright infringement is notoriously challenging to prevent, these four measures can at least offer you a basic level of security.

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Copyright law, trademarks, fair use, Creative Commons and other related terms often come accompanied with confusion over their definition and intent. Unfortunately, though, you are unable to plead ignorance if you are found guilty, whether by the content creator or by the court system, of copyright or trademark infringement.

As both a business owner and a content creator, it is your responsibility to understand the laws in place, what practices are allowed, and how you can protect yourself. Indeed, a business may be in China, or an artist may reside in Germany, but that doesn't mean you don't have to follow the rules and regulations in today's hyper-connected world. 

What are your thoughts on the use of copyrighted material? Are the rules too strict, or not nearly harsh enough? Let us know your thoughts in the comments below.