One of the most confusing areas of the internet is how it is affected by copyright law.
Does copyright law apply to works that are published online?
Yes.
Will using a copyrighted work that you found online infringe on the copyright?
Most likely.
In this blog, we go into detail on the basics of copyright law, and what it means for social media – as well as online marketing of all kinds.
What Does Copyright Law Cover?
U.S. Copyright Law protects the following types of works:
- Literary works
- Musical works, including lyrics
- Dramatic works, including music
- Choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
Current copyright law does not require the author to include a copyright notice for a work to be protected.
In fact, works don’t even have to be registered with the copyright office to receive protection. The only requirement for a work to be protected by copyright law is that it must be in a tangible medium.
What counts as a tangible medium?
Basically, it can’t be something you only thought of or something that simply exists in your head.
A work is in a tangible medium if it has been written down or put into any kind of physical form.
This could be a book written on napkins, a video of a songwriter playing an original song, or even a detailed storyboard for a movie.
So who does copyright law protect?
Not only does U.S. copyright law protect works created by U.S. citizens, it also protects works protected by copyright laws in over 100 other countries around the world. This is due to the Berne Convention, an international copyright agreement that the U.S. joined in 1988.
How to Register a Work with the Copyright Office
Anyone can register a work with the copyright office as long as they own the copyright of that work. Registration can be done online at http://www.copyright.gov/ or by mailing in a physical form. Each copyright application costs $ 35, however multiple works by the same author can be registered through one application.
A physical copy of the work is must be sent to the copyright office after the application is submitted in order for the application to be processed.
Once the application is approved, the owner will receive a copyright certificate for the works. Additionally, the copyright will be searchable through the copyright.gov website, and can be found in the Library of Congress in Washington, D.C.
Public Domain
Public domain is probably one of the most misunderstood aspects of content on the internet. It’s often thought that any picture, blog, video, or other work that is posted online can be shared or posted by anyone else, without giving credit to the original author.
This thought is incorrect. Only works that are in the public domain can be posted, shared, or used in anyway, including sold, without crediting the original author and copyright owner.
So how does a work become part of the public domain?
In the U.S., works become part of the public domain if their copyright has expired or if they were never eligible to be protected by copyright. Most modern works are protected for the life of the author plus 50 years, meaning they won’t become part of the public domain until the late 2000s. However, many works from the 1800s and early 1900s are part of the public domain.
How can you tell if a work is part of the public domain?
The only way to know if a work is part of the public domain is by searching for a copyright on that work.
Copyright searches are available through the copyright.gov website, as well as in person at the Library of Congress. Additionally, many public domain works are available through the Internet Archive at archive.org.
Licenses
One of the primary reasons copyright law was first enacted was to establish the ability for creators to make monetary gains from their work.
This is done by copyright owners granting others licenses to use their work, normally for a fee.
When it comes to the internet, it’s generally thought that content creators are granting others an implied license to share their work.
However, because the license is only implied, it can be easily contested. To top it off – it is not thought that creators grant others implied licenses to use or sell their work for monetary gain.
If you want to use someone else’s work, whether it’s an Instagram photo, blog post, or YouTube video, you need to ask the creator for permission.
They may allow you to use it for free, if you give them credit, or they may agree to let you use it for a fee. In either scenario, they are granting an express license – an agreement that is in writing or in person.
One thing to look for when searching for content to use online is a Creative Commons license. Creative Commons licenses generally allow works to be used for free, and establish express licenses, not just implied.
Works that have a Creative Commons license can be found on creativecommons.org. Additionally, many sharing sites including Vimeo and Flickr, have their own Creative Commons directories.
Fair Use
It is possible to use copyrighted works that do not have a Creative Commons license, thanks to the fair use doctrine. However, to be able to use a work under fair use, four factors must be considered and generally met:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Fair use generally includes using copyrighted work for commentary, search engines, criticism, parody, news reporting, research, and scholarship. Using a work for monetary gain without a license from the copyright owner is normally not considered fair use.
Work For Hire
It is normally thought that the creator of a work is the author and owns the copyright to that work. There is one exception to this – work for hire.
If a copyrighted work is “made for hire,” it means the employer owns the copyright to the works, rather than the employee, and creator, of the work.
A copyrighted work can be considered a work for hire if it is:
- a work prepared by an employee within the scope of his or her employment; or
- a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101)
How does work for hire play into social media?
It means that anyone who is hired to create content, whether social media posts, videos, graphics, blogs, or other content, is not the owner of that content. Rather, their employer owns the copyright to any content they create during the tenure at that company.
Copyright Law and Social Media
So what does copyright law mean for social media?
It means you can’t legally pull content from a Google search, Instagram, blog posts, or anywhere else on the internet and use it in your own content without permission – even if you credit the author.
All content that you post on social media, your website, in email blasts, or otherwise, needs to have either a Creative Commons license or you need to get express permission from the copyright owner. That permission may come with a fee – and if the owner asks you to pay to use their work, don’t go behind their back and use it without paying them.
It also means that other people can’t legally use your original content without permission. If you do find out that someone is infringing on your copyrights, it may or may not be worth it to pursue them legally. At the very least, you can and should request that they stop using your works, or pay a fee to use them.
Copyright law can be extremely confusing – and using a copyrighted work without a license can be costly. The absolute best way to avoid infringing on copyrighted material is to create content from scratch.
It’s important to note that we are not lawyers, so please don’t take any of the above as legal advice. Rather, it is the basics of how copyright law works.
Sources:
http://fairuse.stanford.edu/overview/faqs/copyright-protection/
https://www.legalzoom.com/knowledge/copyright/faq/what-works-copyright-protected
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