Use of Third Party Content

Have you ever been concerned about the images you upload to your company’s website, blog or social media profile?  Well, you should be.

The United States Copyright Act states that, at least initially, the owner of a “work,” is its author or authors.  17 U.S.C. § 201(a).  The term “work” is used to describe any original material which can be the subject of copyright protection.  That includes photos, video, music, lyrics, literature, dramatic performances and various other creative works.  17 U.S.C. § 102(a).  Some or all the copyrights to a particular work can be transferred to a third party, after they initially vest in the author.  17 U.S.C. § 201(d).  For that reason, seeking the proper party to request authorization to use a copyrighted work can be difficult.

One might ask: “When do I need permission, and when don’t I need it?”  The answer partly lies in the text of the U.S. Copyright Act.  The copyright act gives the owner exclusive rights to do things like making copies (which could include copying and pasting an image or text), creating a new work out of an original work (derivative works), distributing copies of the works by sale, performing or playing songs and displaying works publicly.  17 U.S.C. § 106(a).  Authors also have the exclusive right to claim authorship of a work, amongst other exclusive rights.  17 U.S.C. § 106A.

Therefore, you could be liable for copyright infringement under Chapter 5 of the Copyright Act if you engage in any of the activities listed above (or others from section 106), and you are not the owner of copyrighted work, or are not specifically authorized/licensed to engage in the activity.  The owner of a copyright can sue an infringer for his/her/its actual damages, plus the profits of the infringer, or statutory damages ranging from $250 – $150,000 per act of infringement, plus attorneys’ fees, full litigation expenses and an injunction ordering the infringement to be stopped.

Exceptions to the liability principles above include public domain words and fair use of copyright works.  Public domain works are works which have been thrust into the public domain, generally by the expiration of the copyrights. Determining the duration of a copyright can sometimes be difficult, even for attorneys.  The duration varies depending upon the date it was created.  For example, currently, for many works created on or after January 1, 1978, the duration of the copyright is the life of the author, plus seventy (70) years.  17 U.S.C. § 302(a).  However, this law stems from a relatively new amendment to the Copyright Act.  Therefore, there is significant risk involved in attempting to calculate the duration of a copyright to determine whether the copyrights have expired and thus are free to use.

Fair use is one of the most common defenses to copyright infringement lawsuit, and can be a safe haven for users of third party content.  Fair use is a concept that is the subject of many legal texts, and the intent of this article is not to cover it in anything more than the most precursory way.  However, in determining whether a use of a copyrighted work can qualify as a “fair use,” courts often look to the following factors:

  • The character and purpose of the use. (Non-commercial and transformative uses are more likely to be deemed “fair use,” although the other facts are also generally considered).
  • The nature of the copyrighted work (e.g., if the original work is non-fictional and factual a finding of fair use is more likely).
  • The quantity and quality of the portion used in relation to the copyrighted work as a whole (i.e., part of a photo, or the whole thing; the hook of a song, or one quote from a verse?)
  • The effect on the value or potential market for the copyrighted work.

See, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).

One might also assume, or speculate:  “The work is probably not registered, so it is not a “copyrighted work,” and therefore there is no risk in using or copying it.”WRONG.  Today, copyright protection vests when the work is created, specifically, the moment, the work is fixed in a tangible medium, i.e., when it is in a form in which it can be viewed, heard, read or copied.  17 U.S.C. § 101.  In the example of a digital photo, as soon as that photo is snapped and appears in the memory of the camera, phone or other device, copyright protection exists.  Registration is always advisable, however, the protection exists prior to registration.  Registration is required prior to bringing an action in court to sue for infringement.  Therefore, a copyright owner can apply for registration when (s)he discovers that you have infringed, and then sue you.  Note that the copyright owner waives the right to collect statutory damages and attorneys’ fees under the Copyright Act if the work was not registered prior to the commencement of the infringing activity.  Registration also affords the registrant certain protections and advantages outside the United States, pursuant to some international intellectual property treaties.

There are a number of online sources which provide so-called “royalty-free” images, or commercially-licensed images.  Read the fine print though.  Also, don’t believe everything you read.  Some legitimate websites, which actually do provide licensed images for third party use, provide licenses that contain conditions and limitations and some that eventually expire.

The simplest, a safest way to avoid an infringement lawsuit is:  CREATEBE ORIGINAL.  Create your own content.  Take your own photos, or hire a professional photographer to take them for you.  Record your own music.  Write your own blog articles.  Write your own website content and Facebook comments.  When in doubt, call an experienced copyright attorney.  Also note that courts vary in their interpretation of the U.S. Copyright Act, in region-to-region, and internationally.

Michael I. Santucci
Santucci Priore, P.L.
Managing Partner

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