For entrepreneurs, who are moving fast and have limited budgets, it’s especially tempting to copy content, including text and images, from the Internet – so that they can quickly build their website or outdo a competitor.
Note that a "copyright notice" is not required for material to be protected by international copyright law. So, it is safest to assume that copyright exists, even if you do NOT see a © or Copyright notice.
There are limits on what you can copy. You’ll want to understand the limits – defined by the “Fair Use” doctrine – so you can avoid violating copyright law and expensive consequences. The consequences can be severe – including legal fines and “take down” notices.
For example, if your website includes original content you created that has been used without permission, the Digital Millennium Copyright Act (DMCA) provides for “take down” notices that require the hosting company to remove the content. DMCA takedowns are often implemented within 72 hours. So, if your business depends on the web – which most businesses do – your website can be drastically impacted by unauthorized copying. For background of DMCA see: http://en.wikipedia.org/wiki/DMCA
Copyright law does not protect the idea or the facts; it only protects the way an author expressed him/herself. Copyright law makes it illegal to copy, display, publish, perform or create derivative works of copyrighted material without the permission of the owner.
What is the “Fair Use” Doctrine?
The rights of the copyright owner are limited by the “fair use” doctrine, which allows reproduction of copyright protected materials under certain circumstances.
Unfortunately, there are no clear-cut rules for what is “fair use.” There are no “safe harbors” such as specific number of words or percentage of content.
Rather, there are factors that are used to determine “fair use”:
- Purpose and character of the use.
Is the use commercial or non-profit? Commercial use is less likely to be “fair use.” “Fair use” is more likely when the use is to illustrate, comment, criticize, or educate.
- Nature of the copyright work.
Is the work factual or fictional? Factual use is more likely to be “fair use.”
- Amount and substantiality of the portion of the work used.
The courts have found that using 300 words of a 30,000 manuscript of President Ford’s memoirs was the “heart of the book” and contributed to the conclusion that it was not “fair use.”
- Effect on the potential market value of the copyrighted work.
Will your use diminish the potential revenue for the copyright owner? If there’s financial harm (loss of revenue to the copyright owner), then it’s probably not “fair use.”
No clear rules. Suggested guidelines.
While there are no firm rules, the following guidelines may help in evaluating whether your use is within the “fair use” doctrine.
- Quote accurately and briefly.(Word-count guidelines - such as 250 words or less - are not a “safe harbor”).
- Commercial use is less likely to be “fair use.”
- Fictional works receive more protection than factual works.
- “Fair use” includes activities such as criticism, comment, news reporting, teaching and research.
Uncertain? Get Permission.
Getting permission of the copyright owner can be difficult and costly. Sometimes, it is difficult to identify the owner, which can be the photographer or the publisher such as for a magazine or newspaper. There are copyright “clearing houses” online. For example, GettyImages.com, makes it easy to obtain the rights to use images and photographs and to determine what is royalty-free or what the royalty payment is. Other sources include: Copyright Clearance Center, Inc.and Music Library Association (MLA) Clearinghouse.
Penalties for violating Copyright Law
Violating copyright law can be very expensive. Copyright law provides for damages of “not less than $750 or more than $30,000” per infringement. If the court finds that the infringer’s behavior was "willful,” the court has discretion "to increase the award of statutory damages to a sum of not more than $150,000" per infringement. You may also be responsible for attorney fees.
Bottom Line
If you’re copying someone else’s work, carefully consider whether your use makes sense under the “fair use” doctrine. Be careful to quote accurately, give credit, and add value by comparing, criticizing, or commenting on the work. If your use is extensive, get permission, in writing.
In addition, be aware that the search engines recognize "duplicate content" and generally discount/devalue the copies. So the duplicated content won't bring much search engine traffic, but it can make the copyright owner aware of the infringement and bring the associated penalties.
NOTE: Information provided is intended as a broad, general overview and is not legal advice.
© Copyright, 2009, Jean Sifleet. All rights reserved. Used with permission.
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About This Author:
Jean D. Sifleet, Esq. CPA, is the head of the Business Practice Group of Worcester-based law firm Hassett & Donnelly, PC. For practical information, check out Jean's articles and books which are featured on SmartFast.com.
