Nope, not on your kisser but, even worse, in your wallet. Agencies, PR and marketing professionals, bloggers and anyone doing social media (who doesn’t?) are unwittingly putting themselves at risk. The lesson can be expensive, with lawsuit costs and fines stacking up in a horrifying way.
What am I talking about? Copyright infringement.*
It doesn’t feel like you’re breaking the law when you save a funny cartoon or quote you like, so you can post it to Facebook later. Or when you scan then post your honor roll student’s school photo on Instagram. (You bought the big reprints package, so it isn’t stealing!) And… at work, when you use a photograph of Angelina Jolie in a blog post on breast cancer. (It wouldn’t be on Google if it weren’t okay to use!)
Or, even more common, when you use client-provided photography in a brochure you are creating for them, with the client then promptly posting a PDF of that brochure on their website. (You paid the photographer AND agency, after all, so it belongs to you!)
Then there’s this one – so rampant in the agency world – you post screenshots of a client’s customized Facebook page and Twitter background in your online portfolio. (After all, it’s your design work, right?) And since you’re dabbling in website edits, you might as well upload those BurrellesLuce clips of editorial placements. (Don’t they send a PDF for that reason?)
These might seem innocuous enough, but they’re legal violations that can be prosecuted. Even if it doesn’t go to court, fines can be in the tens of thousands of dollars.
When it comes to using images on social media or blog posts, the only way to 100% guarantee you aren’t stepping into a potential lawsuit for copyright infringement is to create your own.
Even then, it’s with the caveat that you’ve obtained an appropriate model release from any person(s) in the image, that your image doesn’t include “a substantial part of a literary or artistic work” and that you didn’t pay someone to create the image for you.
Did that last point grab you? It’s worth notice.
If you pay an agency, freelancer, photographer or other party to create the image for you, THEY own the copyright unless your contract specifically assigns copyright over to you.
This month celebrates the two-year anniversary of #PRprochat, my Twitter chat for public relations professionals on First Thursday’s at 3pm EST.
Our special guest happened to be Ruth Carter – a red-Converse-wearing, improv-spouting, gun-toting (LOL – just kidding!), utterly fabulous Arizona attorney who specializes in intellectual property, copyright, internet, social media, flash mob and contract law.
I thought I would share a few tweets of Ruth’s wisdom.
1. STATE-SPECIFIC LAWS APPLY
Many, MANY people who can’t or won’t hire an attorney use Google for legal advice, sleuthing out answers to their questions, sample contracts and more. But one thing they often don’t know is that many laws are state-specific. Not only can they be absorbing bad advice, but it might not even apply to them or leave out critical legalese, rendering the contract useless! If an attorney licensed to practice law in Colorado shares a contract template, for example, it might be applicable to Colorado law, but incorrect for someone in Arizona. In an alternate scenario, a friend’s referral to a fantastic social media attorney in Arizona might not be a good fit for an Arizona agency whose client contract specifies that all disputes and legal actions be maintained under the laws of New York.
2. ATTRIBUTION DOESN’T SAVE YOU
It’s a common misunderstanding that is perpetuated, at least in part, by the fact that many creative commons images only require attribution of the images source to be used in a public or even commercial manner. Mentioning the photographer of a photograph, for example, and giving a link to their website DOES NOT give you the right to use that image.
If you are using Creative Commons, Flickr or Google Search to find an image, you must still look for a “rights usage” or restrictions statement for that specific image that details conditions of use. It might be attribution of the original creator, it might be disclosing the actual license number, or something else entirely.
For works in the public domain, I highly recommend printing or saving a screen capture of those rights. Online sources are easily changed or removed, and saving a copy of it FROM THE DATE OF YOUR DOWNLOAD can protect you later on.
If you want to be 100%, take one step further by reaching out to the owner of the image, asking for written permission. Their contact information is often readily available as part of the attribution request.
3. DON’T ASSUME ATTRIBUTIONS ARE CORRECT
It’s tempting to save an image you love that has seemingly correct attribution already embedded in the image… but what if that attribution is incorrect or the person sharing that image didn’t know it was a rights-protected photograph and THEY were wrong to use it in the first place? By sharing the image or using it in your blog, you could be violating copyright of the original creator without even realizing it. Just because “you didn’t know” isn’t a defense that will protect you in court.
As a blogger, I tend to do one of three things:
- I create my own image – either by taking a photograph or drawing it.
- I purchase royalty-free stock photography.
- I use correctly embedded images from Getty Images.
- I use public domain images with scrupulously correct attribution.
4. PROTECT YOURSELF IN CONTRACTS
According to Ruth, contracts should clearly state who owns the content you are creating, and who is responsible for paying any legal fees if the client is sued because of something you wrote. Additionally, if you don’t own the copyright but you want to include certain works on your website or online portfolio, the contract must give you permission to use content as a work sample.
Did you know that? I didn’t. It’s in my contracts now, though!!
5. EASY ACCESS IS NOT PERMISSION
There are so many great tweets to share that this post could easily be twice as long, so I’ll wrap it up with one last thought. The internet has drastically changed how we access news, content and images – and it has changed how accessible they are. Just because you read a fantastic blog post that you love and want to share, and it’s easy to copy/paste into your own WordPress blog DOES NOT mean it is okay to do. Content theft is rampant and it’s important to understand what you can and can’t do. If you work at an agency, for example, and plagiarize content from another online source, the client and agency can wind up in a lawsuit and you could lose your job. Not good.
I submit take-down requests of stolen content on a regular basis. When I ask them to remove the unauthorized post, the most common reply is “but I thought you’d be flattered to have more people see your content!” I’m not. I’d be delighted if they used a statement or two then linked over to my original post, but using the entire thing is theft. It’s not flattering and it’s not legal. Since it’s my own sweat equity, I’d rather have traffic and readers on my website than somewhere else. In hopes of minimizing theft, I even put up a “Fair Use of My Content” page to answer questions.
There is a law called “Fair Use” that basically allows portions of content to be used to make a point or identify a story. Not the entire post, of course – but a small portion of it. (Read about this on the FTC website here, or the Stanford University Library here.) Exactly how much isn’t defined, in terms of word or character count, but I generally go by the rule of thumb that a sentence or two is acceptable, along with a link over to the original source.
A5 Fair use may let you use an image in transformative ways, but fair use is a defense, not a permission slip. <ahref=”https://twitter.com/hashtag/PRProChat?src=hash”>#PRProChat — Ruth Carter (@rbcarter) September 4, 2014
Wrapping This Up
It takes time to learn the legal stuff, and so many PR and marketing pros don’t bother. but client’s rely on our expertise. Protect them AND protect yourself by learning about laws that pertain to your job. It can save you a major headache later and clients will be more loyal to the ones who provide uber value.
To read the full Storify transcript of September’s #PRprochat with Attorney Ruth Carter, click here.
* Any mistakes are purely my own. I’m not a lawyer and this post is just information, NOT legal advice. Ruth is a lauyer, but this isn’t her advice, either. Her intelligent ideas, yes, but not her legal advice. To get those kind of goodies, you have to hire her.