Think you can use someone else’s work on your website without a licensing agreement? Think again.
The Internet has made it possible for anyone with a computer and modem to become a Web publisher. But even though technology has made information more accessible to everyone, copyright and trademark laws still apply to Web publishing and websites are common targets for infringement lawsuits. Here are some tips that can help you avoid legal trouble when you want to use someone else’s work on your website.
1. Assume It’s Protected
It is wise to operate under the assumption all material is protected by either copyright or trademark law unless you have good reason to know that it is not. Reproducing someone’s copyrighted work or trademark without their permission is known as infringement, and it leaves you vulnerable to lawsuits from the copyright or trademark owner. Lawsuits are even more likely if you stand to make any money off the use, such as unauthorized posting of copyrighted song lyrics on your site to increase traffic and attract advertisers. Uses like this are likely to bring record companies knocking.
As a general rule, any original work – whether text, visual art, photos or music – is protected by copyright law, which means that you may not reproduce it without permission from the copyright owner. It doesn’t matter if you indicate who the copyright owner is; you’re not allowed to reprint (or distribute, adapt, perform or sell) the work without the owner’s authorization.
Similarly, permission is often needed to reproduce a trademark, including any word, symbol or device that identifies and distinguishes a product or service – such as the word “McDonald’s,” the distinctive yellow arches, or the Ronald McDonald character. If your use of a trademark is likely to confuse customers, then chances are it would be an infringement. But even if customers aren’t likely to be confused – such as using the name McDonald’s for your tax preparation service – owners of famous trademarks often guard their trademarks aggressively, so it’s best to play it safe and pick a different name.
You may not freely use someone else’s work simply because it has been posted on the Internet (a popular fallacy) or because it lacks a copyright or trademark notice (another fallacy). Whether you find the material online or off, permission is generally needed to reproduce text, artwork, photos and music.
2. Read Click-Wrap Agreements
Many companies offer artwork, photos and other materials for re-use, alternately called clip art, royalty-free work, copyright-free work, shareware or freeware. Do not assume that these materials can be distributed or copied without limitation. Read the terms and conditions in the “click to accept” agreement or “read.me” files that usually accompany such materials to be certain that your intended use is permitted. One company failed to honor the terms of a click-wrap agreement and was found liable for illegally distributing three volumes of software clip art.
3. When In Doubt, Seek Permission
Many webmasters manage personal websites or small organization sites – for example, a site for a school tennis team. Do copyright laws apply to these small or personal uses? For example, is permission needed to reproduce a photo taken by a club member, a friend or a relative? The short answer is: “Legally, yes, practically, maybe.” Copyright protection extends to any original work regardless of who created it, and permission is required for reproduction, display or distribution of the work. Getting explicit permission from the copyright owner is the best way to avoid a lawsuit. If the webmaster is confident that the copyright owner has consented to the use, particularly if the copyright owner is a friend or relative, the concern over a lawsuit diminishes, as does the need for a formal written permission agreement. An oral consent is valid, although some sort of written consent (even an email) is preferable because it will be easier to prove if a dispute arises.
4. Know Your Site Statistics
Copyright issues on the Web are constantly evolving and the fees for permissions are often arbitrary. Fees can range from $50 to several thousand dollars depending on the use and the site. A licensing fee may be based on the number of hits per page, number of visits, or the location of the page within the website – for example, the homepage versus an archived page. Sometimes the fee depends on whether the site is informational (for example, a medical site sponsored by a nonprofit university) or commercial (say, a medical site sponsored by a pharmaceutical company). Know your website facts before seeking permission.
5. Pay Less
You can save money on fees by keeping your requests as narrow as possible. For example, don’t ask for “worldwide rights, all languages” if you only need English. And you can sometimes save money by acquiring multiple items from one source. In some cases, you may also be able to lower your fees by offering to pay up front instead of waiting 30 or 60 days.
6. Watch Your Links, Frames and Inlining
Web technology has created a number of novel ways to present information. Linking, framing and inlining are common methods of connecting to the information at other websites, and all carry the potential for getting into permissions trouble. Here’s a brief description of each of these methods and what to watch out for.
Most of us are familiar with clicking on a link to go to another website. Common as links are, including them at your site isn’t 100% risk-free. Deep links in particular can be problematic. A deep link to another site bypasses its homepage and takes the user directly to an internal page. This practice angers some website owners who do not want visitors to bypass information and advertisements at the home page. In 1997, Ticketmaster sued Microsoft over deep links to Ticketmaster’s ordering forms. The case has not yet been resolved, but it points to the need for care in this area.
Framing is the process of dividing a Web page into separate framed regions and displaying the contents of someone else’s site within a frame at your site. Generally speaking, site owners don’t like having their content framed at another site, particularly without permission. At least one court has considered framing to be a copyright infringement, and in another case, CNN sued a news website that framed CNN news content. Under the terms of a settlement agreement, the news website agreed to stop framing and instead use text-only links.
Inlining (sometimes referred to as “mirroring”) is similar to framing, and involves the process of incorporating a graphic file from one website onto another website. United Media, the copyright owner of the Dilbert comic strip, pressured a computer user into halting daily inlining of daily comic strips taken from the United Media website.
Not all forms of linking, framing or inlining are illegal. As a general rule, legal claims are most likely to arise if copyrighted material is modified or if customers are confused about the association between the two sites or the source of a product or service.
7. Don’t Count on Fair Use: It’s Not Always Fair
Fair use is a copyright doctrine based upon the principle that the public should be entitled to freely use portions of copyrighted material for purposes of commentary, criticism or parody. In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose such as to review a text or make fun of a pop song. For example, if you wish to write a review of a novel, it would be considered fair use to quote a portion of the novelist’s work without asking permission.
The difficulty in claiming fair use is that there is no predictable way to guarantee that your use will actually qualify as a fair use. Millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no “definites,” only general rules and varying court decisions. That’s because the judges and lawmakers who created the fair use exception did not want to limit its definition too narrowly. They wanted it – like free speech – to have an expansive meaning that could be open to interpretation. You may believe that your use qualifies – but if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was fair, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place.
8. Remove Unauthorized Material
If someone complains that you are using material on your website without proper authorization, you should immediately remove that material. In the case of unauthorized uploads, downloads or links, you should disable access to the offending material or link. This is not to imply that you should cave into every complaint, but you should remove the material while you investigate the claim and, if necessary, talk to a lawyer. Courts often respond favorably to attempts to “contain” the damage. On the other hand, continuing to use material after being notified that you are violating someone else’s rights may aggravate the claim and increase your chances of having to pay money to the owner of the work.
Removing infringing material is an element of a 1998 law establishing that an Internet Service Provider (ISP, the company that hosts the website on its computer server) can avoid liability by following certain rules including speedy removal of the offending material. You can view or download the text of this law at the U.S. Copyright Office’s website: lcweb.loc.gov/copyright/. Click on “The Digital Millennium Copyright Act” and review Title II.
9. Disclaimers May Help
A disclaimer is a statement denying an endorsement of or affiliation with another site or company. For instance, if your website posts reviews of software and offers links to resellers, you might post a disclaimer in a visible place on your site to the effect that your site does not endorse and is not affiliated with any of the software manufacturers or resellers listed at your site. A disclaimer is not a cure-all for infringement but if a disclaimer is prominently displayed and clearly written, a court may take it into consideration as a factor that limits damages in the event of a lawsuit. For example, in a case involving a dispute between two websites for restaurants named Blue Note, one factor that helped the lesser-known restaurant avoid financial liability was a prominently displayed disclaimer stating that it was not affiliated with the more famous restaurant.
10. Bookmark Collectives
The most useful sources for permission information are copyright collectives or clearinghouses. These are organizations that organize and license works by their members. For example, the Copyright Clearinghouse (http://www.copyright.com) and icopyright (http://www.icopyright.com) provide permissions for written materials. BMI (http://www.bmi.com) and ASCAP (http://www.ascap.com) provide permission for musical performances. National Music Publishers’ Association (http://www.nmpa.org) provides permission to reproduce songs. Corbis (http://www.corbis.com), Archive Photos (http://www.history.com) and Time, Inc. are among several collectives that grant permission to use photographs. Art Resource (http://www.artres.com) and the Visual Artists and Galleries Association (website under construction) grant permission for famous artwork. The Cartoonbank (http://www.cartoonbank.com) is one of several collectives that licenses cartoons. Even if you don’t license from these sources, you can often find valuable research information in the event you need to speak with a songwriter, artist or photographer.