Fall 2019

Giving Credit Does Not Equal Permission By Angie Avard Turner

In this digital age where marketing your business relies greatly on social media, which involves chronic posting, scheduled posts, selfies, content, photos, memes, gifs, captions, and so much more, is it any wonder that being confused by “the rules” happens on a daily basis? Businesses must now navigate the world of daily posts without “stepping on another company’s toes,” also known as infringement. 

In the United States, copyright law goes back as far as the Constitution. The founding fathers recognized that creating new things, whatever those things were, was important to the new country. They understood that the foundation of progress in business, even then, was in creating new things. Copyright protection, much like other forms of intellectual property, are further codified in federal statutes. These federal laws are what spell out the specific rights of a copyright owner and their remedy when someone else infringes. 

Within in the federal copyright statute, a copyright owner has several exclusive rights, meaning that they, and they alone get to make the decision as to how to exercise those rights. Here are the six exclusive rights afforded to a copyright owner:

• The right to reproduce and make copies of an original work;
• The right to prepare derivative works based on the original work;
• The right to distribute copies to the public by sale or another form of transfer, such as rental or lending;
• The right to publicly perform the work;
• The right to publicly display the work, and
• The right to perform sound recordings publicly through digital audio transmission.

Understanding the exclusive rights of a copyright owner allows one to know what one can and cannot do with regard to using photos online and in social media. The scenario that is most common is one business will find a photo that it wants to use on social media or its website. The business owner copies the photo in one way or another, and then posts the photo on its website, social media, or both. When the business posts the copied picture on their website or social media, the business gives credit, by listing or tagging the business whose photo was copied. The question I receive on a weekly, if not daily, basis is whether this is legal or whether it is copyright infringement. The short answer is it is not legal. It IS infringement. Here is why.

The simple reason this is copyright, and possibly trademark, infringement is because the photo is copied without permission. Copyright laws are very straight forward in defining what infringement is. One copies and uses without permission. It does not matter whether the infringer makes money or is copying for personal use only. 

The act that the law is attempting to deter is the copying, so the purpose of the copying infringement, in most cases is inconsequential. There are few exceptions. In fact, when one gives credit to the owner of the photo, one is, actually, tipping off the owner that the photo is being used without permission. That is the ironies of all ironies! Now, there are times when the business owner of the photo does not mind that someone is using their photos. However, there are times when the business owner does not want others using their photos. How does one know whether it is okay? That is the problem. One doesn’t know short of asking permission. 

The penalty for infringement is $150,000 per incident. I personally, have seen situations where the copyright owner has demanded at least $8,000 per photo. Either way, a business owner does not want to receive that kind a mail, whether it is a demand letter or a lawsuit. How does one avoid this precarious situation?

There are a few things a business owner can do to avoid this potentially costly situation. 

Create your own content.

The most clear-cut way to avoid infringing on another’s content, is to create your own content. It can be time consuming, however creating one’s own content avoids the infringement dilemma.

Use content that is part of the public domain.

Content that is in the public domain is content that, at one time, did have copyright protection, but now that protection has lapsed. Generally speaking, the way to determine whether a work is part of the public domain is the life of the author plus 70 years. If the work is older than the life of the author plus 70 years, then most likely, it is in the public domain. 

Subscribe to memberships that sell content.

There are new companies emerging that sell professional content and photos. As long as you are a member, you are paying to use the content they create. 

Ask for permission.

If there is content that you would like to use that aligns with your brand, at the very least ask for permission to use the content. This can be done by sending a quick email or requesting the content owner to sign a short agreement detailing how you may use their content. Another way to structure this is making the use of content mutual. This will look more like a collaboration. However, the benefits of a collaboration could be greater than simply requesting to use another’s content. So, think about the end goal; be strategic. 

In this age to create more and more content, it is imperative to protect your work. Taking steps to ensure that your business is not infringing another business’s content is equally paramount to the success of your business. If you are not sure, err on the side of caution. Unfortunately, posting and asking for forgiveness later could be a costly decision. 

DISCLAIMER: The materials available in this article are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this website do not create an attorney-client relationship between Angie Avard Turner Law and the user or browser.  

Angie Avard Turner

Angie Avard Turner is an attorney who exclusively represents clients in the gift industry including retailers, wholesalers, artists and bloggers. She is licensed to practice law in the state of Georgia, but she is able to handle copyright and trademark issues nationally. For more information regarding her practice, visit www.angieavardturnerlaw.com.