Copyright Law: Keeping You and Your Website Out of Legal Trouble
If you are just starting your website, you are pretty safe with respect to Copyright law. Most of your traffic will come from personal and local sources. You won’t be in the public eye for a while. When you are still small, and you are acting in good faith, if you are caught violating Copyright law there is a very good chance you’ll receive a letter from the owner. It will state what he thinks you are using without his permission. He’ll likely ask you to change or remove the images, photos, or text he claims are his, or he’ll offer to sell or license them to you. However, anything can happen. Not everyone is so friendly, so you should still be cautious when using any text, images or sound you don’t own. Especially once you’ve developed some web presence and are generating revenue. Still, being sued for violating Copyright law is always a risk whether you are big or small. Ultimately, some of the risks of going to court could be having your website shut down or having a judgment entered against you. You could end up owing your opponent for all the damages he is able to prove he sustained, plus his attorney’s fees and costs, and any of your profits. In some cases, your opponent may also seek statutory damages, which means that he can still sue even if he didn’t sustain any actual damages and you didn’t make any profit. In such case, if the court finds you willfully violated his Copyright, you could be on the hook for as much as $150,000 per violation. You cannot always defend yourself by claiming the images, text or sounds you used were not marked with a Copyright notice. A person has a legal Copyright to any text, sound or image he creates as soon as it is created. You cannot modify any text, sound or image and claim the right to use it. The modified work still belongs to the original creator and is known as a derivative work. Finally, you may end up in criminal trouble should you be prosecuted for your Copyright infringement, though it must at least be proven you willfully committed the act for commercial advantage or private financial gain.
For more information on Copyright Law, I recommend starting with a publication from the United States Copyright Office: http://www.copyright.gov/circs/circ01.pdf and its website: http://www.copyright.gov.
So, now that we know how much trouble we can get into, here are some general guidelines, which for now will exclude the fair use and public domain exceptions. Also keep in mind I’m taking a very conservative risk management position. Due to the brevity of this article I’m skipping many exceptions that might work in your favor.
Images: Only use photographs, video, graphics or images (“images”) you have created, own or have a license to use on your website. If you personally create them, you own them and can use them as you wish. Because you are the creator, you own the Copyright. If an employee or someone you hire creates images for you, you generally own them because they are works for hire. However, to be completely safe, always have them sign an agreement that specifically gives you complete Copyright ownership to the images they create for you, or at minimum a license to use the subject material as needed. If you prefer to use a company which provides stock images to satisfy your needs, be sure to obtain adequate written assurances you are indemnified and held harmless for using the purchased images. This way, you may be protected should your actions be found to violate Copyright law. Finally, if you find images you’d like to use, you can always contact the owner and ask her if you can use them. Consent through email with an exact description of how her images will be used, along with a citation stating it is her work is pretty failsafe and can serve as a great networking opportunity. Caveat, be sure she is the owner and not just claiming to be the owner, so do your homework. Finally, there is the issue of preserving your images so you can prove when they were created. You own a Copyright to an image as soon as you create it, but what if someone else creates an identical image, all on his own, sometime subsequently? Technically, you are the Copyright owner, but you need to be able to prove it by showing you created it first. A certain way to do this is to pay a third party to hold your images in escrow, along with a notarized affidavit as to the date it was created, or to file the image with the United States Copyright Office. However, in most cases, if you have an alternate way to reliably back up and date your web content, this should suffice. I leave such matters of date stamping electronic data to future articles by the Doodlebit gurus.
Text: With respect to text, I refer you to all I’ve said about images above. The same rules apply to text as to images. Granted there is a fair use exception I won’t get into in this article, but generally, if you are going to quote someone or use their text in any way, first seek their written permission in the same fashion I previously recommended. If you get no response, then I suggest taking a crash course in the Fair Use Doctrine. With a little reading you’ll be comfortable with exactly how much you can specifically quote and still be safe. As a rule of thumb you are probably ok if you stick to a few sentences and give a specific reference to the original writer, or Copyright owner. Finally, I realize anything you write is taken from other sources. You read it or heard it somewhere, so how do you make your text unique so it does not violate Copyright law? Here my guidance is to do your best to remember what we learned in high school about plagiarism. Study the subject, put it in your own words, and give credit where credit is due. Give your citations and references. Link your readers to the sources you’ve used.
Music: Generally, what applies to images and text applies to music. However, I would caveat that music is a very, very serious matter in Copyright law at this time. My recommendation is to avoid putting music on your website, in any shape or form, unless you have created it, have a license to it, or have bought it. The music industry is on the rampage in the court system today because Internet piracy has taken so much of its worldwide market in recent years. In fact, I wouldn’t even link to websites which appear to be offering music without having first obtained the appropriate Copyright ownership or license to it. Remember what happened to Napster users. Even high school kids ended up in court. Finally, I would include movies and television programs in this category. Stay away from using or linking to video footage of movies or television programs unless you are certain you have the right to use it. You don’t want Lady Gaga or MGM serving you with a $20,000,000 lawsuit claiming you caused them so much lost revenue.
The information contained herein is not legal advice and is subject to the following: DISCLAIMER.
About the Author: Pat Dickson is an 18 year attorney with JD, MBA, MSIM designations. He focuses in representing high tech and construction companies. He serves as counsel for Doodlebit, LLC. Visit his blog here: Pat Dickson - Your In House Attorney.