Three Tips for Decoding Copyright
Kelley C. Keller
Copyright is a complex field due to the daunting realities of the challenging and evolving digital age. The last overhaul of the U.S. Copyright Law was in 1976, long before Internet file sharing and the emergence of social media. The 90s saw important “upgrades” to the law, but as Robert Frost said, we have miles to go before we sleep. A continuing effort to “fix” copyright law is certainly underway. However, until there is legislative redress, we must work within the current framework. Let’s consider how.
Tip One: Understand the Basics of the Copyright Law
A copyright is an expression of an idea in an original work of authorship resulting from the author’s creativity and effort. Protection of that work is automatic the moment it is fixed in a tangible medium, e.g., a writer puts pen to paper, a photographer captures an image, a computer programmer creates code, or a singer records a new tune.
All copyright rights begin as “common law,” or non-federal rights, which are generally enforced by state laws, since they are created regardless of federal registration. Due to common law, it is not required to mark a work with a copyright notice, secure federal registration for the work, or even make the work available to the public.
Once an author/owner secures a federal registration, those rights are transformed into federal statutory rights, which are enforced under federal law. The federal law gives authors/owners a “bundle of rights” that allows for the exercise of substantial control over the protected work, including the exclusive right to (1) reproduce; (2) prepare derivative works of; (3) distribute copies of; (4) perform; and (5) display the work. Only one right need be violated to give an author/owner standing to pursue enforcement action. Every social media marketer should understand the difference between common law and federal rights.
Tip Two: Know That Fair Use Does Not Mean Free Use
Social media marketers use visual components – pictures, infographics, video – to make a post more meaningful. Unless this content is original to you or your client, then buyer beware.
The fair use doctrine allows limited and reasonable uses of a copyrighted work. “Fairness” depends on a four factor test: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and portion used vis-à-vis the work as a whole; and (4) the effect of the use upon the potential market or value of the copyrighted work.
Keep in mind that providing backlinks to an original image is merely attribution, but not fair use. Unless you are using an image for an educational purpose, nix your plans or get permission. Purchase stock photos, rely on creative commons licenses, or mine public domain repositories.
Tip Three: Understand the Digital Millennium Copyright Act’s “Safe Harbor” Provisions
The DMCA seeks to limit liability for Internet service providers regarding copyright infringement for some third party acts. The liability, or “safe harbor,” provisions are essential for social media marketers to understand.
The first provision states that social media sites are commonly “service providers,” providing server space for user-generated content. Second, infringing activity includes creating an unauthorized copy of a protected work, and the enabling of an unauthorized copy of a musical composition, sound recording, and/or audiovisual work to be displayed on the service provider’s site.
The DMCA establishes “take-down” procedures that immunize service providers if they remove or disable access to infringing content upon notification by a copyright owner, provided they (1) implement a “repeat infringer” policy; (2) register a DMCA agent with the Copyright Office; and (3) promptly comply with “take-down” requests.
So, as a content generator, you may be unwittingly committing copyright infringement through your postings if they include an unauthorized use of protected content, thus subjecting your client/employer to copyright infringement liability (and bad press) if your posted content becomes the subject of a “take-down” request.
Bottom line: Know the difference between common law and federal copyright; make content fair use or a non-use; and steer clear of the DMCA, unless initiating the “take-down.”
Kelley C. Keller, Esq. is a practicing attorney and the Founder and Managing Member at The Keller Law Firm, an Intellectual Property firm located in Carlisle, PA. She can be reached at firstname.lastname@example.org.
Disclosure: While Kelley C. Keller is an attorney, this writing is for informational purposes only and is not to be considered legal advice.