Learn how you can avoid infringing copyrights held by third parties, and review the proper way to license copyrighted materials.
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How to Avoid Copyright Infringement
Welcome to this episode of Window to the Law! The risk management strategies we’ll discuss today will help you avoid infringing third-party copyrights in your business materials.
But first, we’ll need to cover some basics. Copyright protects creative works. That includes the expected things like books, plays, paintings, and photographs, as well as some unexpected things like databases and architecture. Copyright does not protect works that aren’t original, like facts, names, short phrases and familiar designs. Copyright also does not protect works that aren’t fixed in a tangible medium, which means ideas are not protectable.
A copyright owner owns an exclusive bundle of rights for his or her work: the rights to reproduce, distribute copies, perform, display and prepare derivative works. A derivative work is a transformation of the original, like a translation of a book from one language to another. Using a copyrighted work without permission is an infringement of these rights, and the owner could bring a lawsuit in federal court. Remedies for copyright infringement include impoundment and destruction of infringing materials, injunctive relief, attorneys’ fees, and actual damages or statutory damages, which can be as high as $150,000 for willful infringement.
So how do you avoid infringing a copyright? Don’t use third-party works in your business materials unless those works are in the public domain, or you obtain permission from the copyright owner, and your use falls within the scope of that permission.
Public domain works are not protected by copyright because: One, they were never protectable in the first place, so that would include things like facts. Two, the copyright has expired. Or Three, the owner waived the copyright and dedicated the work to the public domain, which is rare.
What if the work is not in the public domain, it is definitely copyrighted, and you want to use it in your business materials? Then you need permission from the copyright owner. In order to request permission, you’ll need to determine who the owner is and how to contact them. This may require research, so budget the appropriate amount of time to do this.
Once you know who the owner is, you will need to request a license to use the copyrighted work. If the copyright owner agrees, your desired use should fall within the scope of the granted license. If your use exceeds the scope, you may be liable for copyright infringement.
Finally, get permission to use the copyrighted work in writing.
You may have heard of the term “Fair use” and wondered if that excuses your unauthorized use of copyrighted materials. Fair use is actually a very narrow defense to copyright infringement that permits limited copying for certain types of purposes. Courts weigh four factors to determine if a use is a fair use:
First, the purpose and character of your use. Educational use weighs in favor of fair use while commercial use does not.
Second, the nature of the copyrighted work. Using portions of a factual work, like a biography, is more likely to be excused as fair use than copying fictional works.
Third, the amount of the work used. The less you use, the more likely it will be fair use unless you use the “heart” of the work, which is the most memorable aspect.
Finally, the potential market for the work. Fair use is less likely if the use deprives the copyright owner of income or a market.
Courts have broad discretion is finding fair use, which makes it difficult to predict the outcome of a fair use defense. Recognized fair uses include a person recording a TV show for home viewing, a critic quoting song lyrics in a review, and a teacher making copies of a book chapter for use in the classroom. Keep in mind that citations or disclaimers to the copyright owner will not cure an infringement. So, be cautious when relying on fair use, and you may wish to consult with your attorney before doing so.
Adopt the best practices discussed in this video to ensure you properly use copyrighted content! Please feel free to contact me with any questions, and thanks for watching this month’s episode of Window to the Law.