Avoid Infringing on Copyrights when Publishing Photos and Videos
Imagine: A fictitious nonprofit organization “Eat Veggies” is promoting an upcoming free community vegan potluck, so they grab an image of a fruit bowl off of Google images and publish it to their website as part of their event announcement. Eat Veggies archives old events on their website’s Past Events page. Two years later, Eat Veggies receives a cease-and-desist letter from a lawyer representing the copyright owner of the fruit bowl image. Eat Veggies apologizes and immediately removes the image from the page that no one has really accessed anyway in the past two years, and offers to pay the $7 licensing fee that is charged for use of that image by the stock image site. But the lawyer warns they will file suit against Eat Veggies for $150,000, the maximum amount of statutory damages for "willful" infringement under the Copyright Act, unless Eat Veggies settles for a mere $15,000. Those numbers sound absurd, but Eat Veggies is indeed guilty of copyright infringement, so now what?!
Unfortunately, although the above-described scenario is fictional, many nonprofits across the US have been subject to similar demands from “copyright trolls.” These trolls make a living through filing frivolous lawsuits alleging copyright infringement. If this happens to your organization, immediately consult an attorney before responding to the cease and desist letter (keep in mind that most letters will contain response deadlines).
Best case scenario: Respect intellectual property in the first place so you don’t give copyright trolls any reason to target your nonprofit.
6 Tips to Keep the Trolls Away
1. Understand what copyrights protect. Copyright law protects any original creation, and grants the holder of the copyright exclusive control over when, how, and by whom their work may be copied, distributed, or exhibited. This includes photographs, drawings, literary works, films, music, choreography, and other creative works. Copyright law does not protect the underlying ideas of a creative work, and it does not protect facts.
2. Know what is in the public domain (and thus not copyrighted). A work can be out of copyright due to age, by the nature of authorship, or for other reasons. Cornell University offers an excellent resource outlining copyright terms for published and unpublished works. Note that all works authored by a federal government (not state government) employee during the course of their official duties are public domain.
3. Don’t use anonymous images found on the Internet. A creative work (eg, a photo of a fruit bowl or of animals) does not have to state that it is copyrighted in order to receive that legal protection. In the United States, as well as in all other Berne Convention signatories (currently 181 countries), it is not necessary for a work to have an explicit copyright notice for it to be copyrighted. It is also not necessary for copyright in a work to be registered (this simply makes it easier to be compensated in court). Unless a creative work is explicitly noted as being in the public domain, assume that it is copyrighted. Scanning a printed image or taking a screenshot of a digital image does not change the copyright status of the featured image.
If you are looking to use animal photos anywhere on your website or in your printed materials, ADP client We Animals Media offers an outstanding free resource of 15,000+ royalty-free images and video clips, available at https://weanimalsmedia.org.
4. Don't rely on "fair use." Fair use is a complicated body of case law, and there is not a clear bright line rule for fair use. Absent permission by the copyright owner or ensuring an image is in the public domain, using someone else’s image carries some degree of risk of being sued for infringement. Congress and the courts utilize a four-factor test to determine when the fair use defense applies.
The United States Code (17 U.S.C § 107 (2010)) provides the following standard and four-factor test:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- 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.
A good resource from the Copyright Office discussing the fair use defense factors in more depth is available here: https://www.copyright.gov/fair-use/more-info.html. Fair use determinations are only made by the courts after the person or entity using the work is sued by the copyright owner and has spent money litigating the matter. To minimize your organization’s liability, only use images with written permission (whether by paying the copyright owner or not) or in the public domain.
A note about social media in particular: It is probably safe to assume that “retweeting,” “sharing,” or using a designated mechanism within a social media platform, is tacitly consented to by the poster (assuming the poster was the one who owned the copyright). Using the content of a post in another form, even though frequently done, is subject to the same copyright analysis and four factors above.
5. Avoid this frequent misconception about attribution. Including attribution does not eliminate a copyright infringement claim. Giving credit where credit is due addresses plagiarism, but the copyright owner can still go after a person or organization that uses their work whether it is credited or not.
6. Proceed with caution when using free photo sites. Just because a photo is on a free photo site does not mean the person who posted it there had the right to do so. When a photo says "Some Rights Reserved," you need to carefully read what that means. Usually, this is a Creative Commons license or other similar copyleft license, but you must adhere to the conditions specific to how you plan to use the image. Not all items under Creative Commons are treated the same. In nearly all cases, Creative Commons-licensed works require attribution of the original creator. They may also have additional restrictions, such as prohibiting commercial use of the work, or requiring that copies be distributed under a similar license.
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When your organization is deciding on images or videos to use on your site or in other published materials, you must also adhere to privacy laws. Read more about photo and video privacy laws in our upcoming post.
Disclaimer: This post is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No person or organization should act or refrain from acting solely on the basis of this post without seeking professional legal counsel (contact us here for legal counsel specific to your situation). Animal Defense Partnership expressly disclaims all liability relating to actions taken or not taken based solely on the content of this post.
(As an aside: Copyright trolls are not new. If you were digitally sharing music or movies with your friends in the early 2000s, you may recall the infamous “John Doe” lawsuits filed by the Recording Industry Association of America (RIAA) against peer-to-peer file sharers using their IP addresses. Many of these suits targeted individuals as young as 12 years old, claiming damages of up to $150,000 per illegally-downloaded song. These high-profile suits began the trend of threatening low-dollar parties with huge financial penalties for copyright infringement.)
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