Imitation is the Sincerest Form of Copyright Infringement

The Internet is a vast repository of knowledge and information. Fortunately, there are a number of search engines, websites and tools (including Google, Bing, Yahoo, Ask.com, Wikipedia, and GitHub) to help navigate the waters. When you are looking for something personally or professionally — a picture, audio clip, or video clip for a presentation, a font for a poster, a great article on a topic you want to share with your friends, samples of others’ software code to get past a development issue, song lyrics, etc. — in many cases what you are looking for is just a few clicks and/or searches away. But once you’ve found it online, can you use it? To answer that question, let’s start by debunking a couple of myths.

Myth #1 – If it’s on the Internet, it’s free for anyone to use. Many people think “public domain” and “free to use” is synonymous with “on the Internet.” It’s not. The Internet is an incredible tool for communicating and sharing information. However, the Internet does not negate or trump intellectual property ownership rights. Just because someone posted content online does not automatically mean it’s actually free for anyone to copy and use it for any purpose. In almost all cases, posting something online does not automatically cancel any intellectual property rights held by the owner of the content, including copyright and rights of publicity. The Recording Industry Association of America’s war on consumer music file sharing through peer-to-peer file sharing networks (remember the original Napster?) is a great reminder that people who copy and reuse the copyrighted works of others may be held liable for doing so.

Myth #2 – If I don’t see a copyright notice, it’s not protected by copyright. Under the Berne Convention, an international agreement governing copyright, copyright protections apply once something is created physically or digitally and saved (“fixed in a tangible medium of expression” is the formal term), even if there’s no copyright notice on the protected work. (Registering a copyright with the US Copyright Office and including a copyright attribution, e.g., “© 2016 Eric Lambert,” gives you additional rights such as the potential for significant statutory damages.) Copyright protections include the exclusive right to control copying, public performance, or many other use the work by third parties. If someone re-posts copyrighted content without any ownership notice or attribution, it is still protected by copyright and that poster would likely be liable for copyright infringement. However, if you use that content, even without knowledge that it was copyrighted, you could find yourself receiving a cease-and-desist letter or lawsuit for using it too, and your claim that you didn’t know your use was infringing may not save you from liability.

Now that we’ve debunked the myths, let’s talk about how and when you can use online content. Online content can be grouped into 3 categories:

  1. Copyrighted or Otherwise Protected Content. The first category is content that is clearly covered by copyright or other intellectual property protections like rights of publicity. This category includes things like content with a copyright notice on it; content used under a license (“used with permission”); content on a site with terms of use or another disclaimer restricting the ability to copy or reuse content without permission; pictures of celebrities; famous cartoon characters; and so on. If you want to use copyrighted or otherwise protected content, you need the permission of the copyright owner, i.e., a license to use it. 
  2. “Fair Use” exception.  There is one important exception — the “fair use” exception — that provides a limited right to use copyrighted content for purposes such as commentary, criticism, scholarly research, news reporting, public classroom education, parody, or other “transformative” purposes (new meaning, added value, or a different manner of expression) without the copyright owner’s permission. The exception recognizes that in some cases, the benefit to society to allow use of a work outweighs the copyright holder’s rights to control use of the work. If it’s fair use, it’s not copyright infringement. However, there’s no definitive rule as to what is and is not fair use. Instead, courts look at four factors to determine fair use – (1) the purpose and character of the use (i.e., is it transformative, is it commercial or non-commercial, etc.), (2) the nature of the copyrighted work, (3) the amount and substantiality of the copyrighted work that is used (i.e., is it more than a “de minimis” portion of the work), and (4) the effect of the use on the potential market for, and value of, the copyrighted work).
  3. Open Source and “Public Licensed” Content. The second category of content is “open source” and “public licensed” content. “Open source” refers primarily to software — its computer software distributed under a license whose source code is available for modification or enhancement by anyone as long as the requirements of the license are followed. For more on open-source software, please see my earlier post on the topic.  You can use open source software you find online as long as you comply with the terms of the open source license. 
  4. “Public licensed” content is content distributed under a similar license. It grants anyone certain rights to use the content in a way that would normally be prohibited under copyright law, as long as the use is within the boundaries of the license. These public licenses preserve the owner’s copyright in the content, but cede certain rights to anyone who wants to use the content. The most common public licenses are the six Creative Commons licenses. Creative Commons licenses give anyone the right to use content for noncommercial purposes with attribution to the content owner, and depending on the type of license, may additionally be able to use the content commercially, create derivative works from the content, and/or share the content with others under the same license (“share-alike”). You can use public licensed content as long as you comply with the terms of the public license.
  5. Everything Else – “Murky Content”. The third category is everything else — anything not clearly subject to copyright or other IP protection, and not clearly open source or public licensed (let’s call it “murky content”). This is the content that causes the most trouble, because Internet users may have no way to know whether something they find online that looks like it’s free to use is actually subject to copyright or other intellectual property protection, or is governed by a public or open source license. In this case, you need to make a judgment/risk call whether to use murky content.  Generally, using murky content for commercial purposes carries the most risk, and using it non-commercially carries the least. Most people don’t create and freely share content for the fun of it — they derive value from it. If murky content looks like something someone would want to monetize, it’s likely protected content requiring some form of license to use. There’s no sure way to gauge the risk of using murky content — the only way you’ll ever know for use is if you get in trouble for using it, and by then it’s too late.
  6. Some argue there is an “implied license” to use online content which protects users of online content. They argue that if a content owner posts content on their website or makes it available through Google, promotes links to the content through methods such as social media buttons, and does not restrict the ability to copy the content (e.g., no disabling of the ability to save or “screen scrape” content), the content owner is implying that it’s OK to reuse it. The biggest issue with the “implied license” argument is that like fair use there’s no easy way to know if it applies or not — you have to make a judgment call. It’s also important to note that the implied license argument assumes that the content was posted by the content owner.  Courts may be very hesitant to embrace this concept as it would mean significantly watering down copyright protection for online content.

Don’t forget photos may bring up not just copyright issues, but rights of publicity as well. If you use someone’s picture found online to promote your product or service, not only could you face a copyright suit from the copyright owner of the photo, the subject of the photo could have a claim against you using their name or likeness in a commercial manner without their consent. It’s also worth noting that using images of a cartoon or corporate logo grabbed from the Internet could also create trademark infringement or trademark dilution issues.

Finally, as you navigate the world of online content, keep these simple rules in mind:

  • Check the applicable terms and policies before using web-based content. If you find content you want to reuse on a website or online service, check the Terms of Use, Applicable Use Policy, or similar terms or policy for ownership, license, or usage rights language that could give you the right, or restrict your right, to use the content.
  • Use license filters when searching images.  If you’re searching for images on Bing Images or Google Images, you can filter your search by license type (e.g., in Google Images, if you click “Search Tools” you can search by “Usage Rights” such as “Labeled for reuse with modification,” “Labeled for reuse,” “Labeled for noncommercial reuse with modification,” and “Labeled for noncommercial use.” Keep in mind that license information may be wrong, but you’ll have an argument that you relied on the license type filter.
  • If it looks professionally done, it probably is.  If you find content online that looks like it was made by a pro, it probably was. If there’s no license associated with professional-looking content, there’s a reasonable chance that someone else redistributed it without the ownership or copyright attribution. Also, if you can’t easily save content (e.g., the “save as” in the right-click context menu or the “copy” function for the browser is disabled on that website), it’s likely because the content owner does not want people capturing or “screen scraping” their content.
  • Just because it’s protected doesn’t mean you can’t use it. Finally, don’t forget that many copyright owners are willing to grant a license to use their work if you ask them. Some may just want the exposure and ask for an attribution; some may want a license fee. A little internet sleuthing can uncover the owner’s email address or other contact information for contact purposes. If you like the content and are willing to obtain a license to use it, make sure the license you receive is broad enough for the way you intend to use the content or work, both today and in the foreseeable future.

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