As a teacher with a professional background in communications--one who also happens to spend a great deal of time and resources on creative pursuits--I've been over this road a LOT. Plagiarism is reaching epidemic levels on college campuses, and a troubling consequence of this behavior is that students often carry their sloppy habits into the workplace where they can result in liability exposure for their employers. As a photographer, I've had to confront infringing uses of my work ranging from relatively innocent appropriations by individuals, to un-compensated commercial use and blatant attempts at copyright grabs by media companies. These concerns resurfaced recently, when I discovered that material on this very blog had been used without my knowledge or permission. Not surprisingly, this leaves me more than just a little sensitive to the whole issue, and to the ongoing need for simple, plain-English do's and don'ts on avoiding copyright infringement.
So... what follows here are my own brief guidelines. I generally address things I've got experience with, so this should NOT be assumed to be comprehensive, and I urge you to investigate the additional resources at the end of this post for more information. Finally, this blog post does not constitute legal advice; if you have specific concerns, consult an attorney.
Q. I just found a really cool picture/article on the web! Can I use it on my own blog/website/newsletter?
A. Not without permission. Doing so constitutes copyright infringement.
Q. But when someone posts a picture they made on the web, doesn't that put it into the public domain?
A. No--it's really no different from the owner publishing their picture in a book or magazine. Unless the copyright expires, or unless the owner explicitly puts the work into the public domain, the work should be assumed to be copyrighted, and that the owner holds the exclusive rights for publication and republication. (1)
Q. Don't you have to register a copyright for it to be valid?
A. No. Registration provides for the award of statutory damages in infringement lawsuits, but it is NOT necessary to claim ownership. According to the Berne Convention (which the United States adhered to in 1989), a copyright is automatically granted as soon as a work is "fixed" in some medium. (2)
Q. Okay, but what if there's no copyright notice on the website?
A. The use of a copyright notice is no longer required under U.S. law. (3)
Q. Can't I just go ahead and use the item as long as I credit the author/photographer?
A. No. Acknowledging the source of copyrighted material is not a substitute for permission.
Q. What if I can't find the owner, or the owner doesn't respond and I'm on a deadline? Can I use the item anyway?
A. You still cannot use the item without the owner's permission. Be prepared for the process of securing permission to take time, and plan alternative material if you can't locate the owner. A lack of response to your inquiry does NOT entitle you to unauthorized use.
Q. If I represent a non-profit organization, or my intended use is non-commercial, do I still have to secure permission, even if the owner insists on payment?
A. If the copyright owner requires compensation, you must comply or you can't use the item. Non-profit and non-commercial use of a copyrighted work are not exempt.
Q. What if I found the item on a personal blog, or on a personal profile such as on Facebook?
A. It doesn't matter whether the item was found on a commercial or personal site. If you don't own the copyright, you can't use it without permission.
Q. What if I hot-link to the item instead of copying it?
A. The law is still unclear as to the legality of hot-linking copyrighted material. However, in addition to potential legal liability, hot-links consume bandwidth on the hosting server and should be avoided without permission.
Q. But isn't what I'm doing considered to be fair use?
A. Not necessarily. "Fair use" doctrine allows only limited use of copyrighted works without the owner's permission. Acording to the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, certain uses are allowed:
...quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported. (4)
Q. I created the photo/article. Might I still have to seek permission to use or republish it?
A. Possibly, if you transferred or licensed the copyright in the same work to someone else.
Q. I didn't know any of this when I "borrowed" the work. Am I still held responsible for infringement?
A. Absolutely. In the United States, ignorance of the law is NEVER considered a defense for violating it.
Q. Honestly, I don't see what all the fuss is about--the writer/photographer should be flattered that I want to use this item. And besides, how will they know?
A. Creators of original works, whether professional or amateur, are entitled by law to control the use and distribution of those works. In some cases, the unauthorized use of a person's work can have a detrimental impact on the potential market value of other work they create. Furthermore, doing so is a violation of the ethics of professional journalism, and can expose the infringer and his/her organization to civil (and in some cases, criminal) liability. Finally, one should NEVER anticipate that an infringement will escape detection, as tools are widely available for locating and identifying potentially infringing uses of copyrighted material.
In a nutshell, be aware of your responsibilities under copyright law. Know how to legally and appropriately use material created by others. And if you choose to infringe on others' rights, don't assume you won't get caught.
Additional resources:
U.S. Copyright Office
Stanford University Libraries: Copyright and Fair Use
Associated Press Stylebook (subscription may be required)
(1) Michelle L Devon, 2009. Copyright Infringement and Web Content. suite101.com Online Web Resources. Retrieved October 21, 2009 from http://onlinepublishingresources.suite101.com/article.cfm/copyright_infringement_and_web_content .
(2) Berne Convention for the Protection of Literary and Artistic Works. World Intellectual Property Organization. Retrieved October 21, 2009 from http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html .
(3) Copyright Basics. U.S. Copyright Office. Retrieved October 21, 2009 from http://www.copyright.gov/circs/circ1.pdf .
(4) Fair use. U.S. Copyright Office. Retrieved October 21, 2009 from http://www.copyright.gov/fls/fl102.html .
