{"id":384,"date":"2016-12-13T09:31:07","date_gmt":"2016-12-13T15:31:07","guid":{"rendered":"http:\/\/ericlambert.net\/blog\/?p=384"},"modified":"2016-12-13T09:31:07","modified_gmt":"2016-12-13T15:31:07","slug":"imitation-sincerest-form-copyright-infringement","status":"publish","type":"post","link":"https:\/\/ericlambert.net\/blog\/2016\/12\/13\/imitation-sincerest-form-copyright-infringement\/","title":{"rendered":"Imitation is the Sincerest Form of Copyright Infringement"},"content":{"rendered":"

The Internet is a vast repository\u00a0of knowledge and information.\u00a0Fortunately, there are a number of search engines, websites and tools (including Google, Bing, Yahoo, Ask.com, Wikipedia, and GitHub) to\u00a0help navigate the waters. When you are\u00a0looking for something personally or professionally —\u00a0a picture, audio clip, or\u00a0video 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\u00a0what you are looking for is just a few clicks and\/or searches away.\u00a0But\u00a0once you’ve found it online, can you use it<\/em>?\u00a0To answer that question, let’s start by debunking a couple of myths.<\/p>\n

Myth #1 – If it’s on the Internet, it’s free for anyone to use.<\/strong>\u00a0Many people think “public domain” and “free to use” is synonymous with “on the Internet.”\u00a0It’s not. The Internet is an incredible tool for communicating and sharing information.\u00a0However, the Internet does not negate or trump intellectual property ownership rights.\u00a0Just because someone posted content\u00a0online does not automatically mean it’s actually free for anyone to copy and use it for any purpose.\u00a0In 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\u00a0music file sharing through peer-to-peer file sharing networks (remember the original Napster?)\u00a0is a great reminder that\u00a0people who\u00a0copy and reuse the copyrighted works of others may be held\u00a0liable for doing so.<\/p>\n

Myth #2 – If I don’t see a copyright notice, it’s not protected by copyright.\u00a0<\/strong>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.\u00a0(Registering a\u00a0copyright with the US Copyright Office and including a copyright attribution, e.g., “\u00a9 2016 Eric Lambert,” gives you additional rights such as the potential for significant\u00a0statutory damages.) Copyright\u00a0protections include the exclusive right to control copying, public performance, or many other\u00a0use the work by third parties.\u00a0If someone re-posts copyrighted\u00a0content 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\u00a0you didn’t know your use was infringing may not save you from liability.<\/p>\n

Now that we’ve debunked the myths, let’s talk about how and when you can<\/strong><\/em> use online content.\u00a0Online content can be grouped\u00a0into 3 categories:<\/p>\n

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  1. Copyrighted or Otherwise Protected\u00a0Content.\u00a0The first category is content that is clearly covered by\u00a0copyright or other intellectual property protections like rights of publicity.\u00a0This\u00a0category 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\u00a0copy 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,\u00a0i.e., a license to use it.\u00a0<\/strong><\/li>\n
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  3. “Fair Use” exception.<\/em>\u00a0\u00a0There\u00a0is one important exception —\u00a0the “fair use” exception — that provides a limited right to use copyrighted content for purposes\u00a0such as\u00a0commentary, 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.\u00a0The 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.\u00a0If it’s fair use, it’s not copyright infringement.\u00a0However, there’s no definitive rule as to what is and is not fair use.\u00a0Instead, courts look at four factors to determine fair use – (1) the purpose and character of the use <\/em>(i.e., is it transformative, is it commercial or non-commercial, etc.), (2) the nature of the copyrighted work<\/em>, (3) the amount and substantiality of the copyrighted work that is used <\/em>(i.e., is it more than a “de minimis”\u00a0portion of the work), and (4) the effect of the use on\u00a0the potential market for, and\u00a0value of, the copyrighted work<\/em>).<\/li>\n
  4. Open Source and “Public\u00a0Licensed” Content.\u00a0<\/strong>The second category of content is “open source” and “public\u00a0licensed” content.\u00a0“Open source” refers primarily to software — its\u00a0computer 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<\/em>.\u00a0For more on open-source software, please see my earlier post on the topic<\/a>. \u00a0You can use open source software you find online as long as you comply with the terms of the open source license.\u00a0<\/strong><\/li>\n
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  6. “Public\u00a0licensed” content is content distributed under a similar\u00a0license. It grants anyone certain\u00a0rights to use the content in a way that would normally be prohibited under copyright law, as long as the use is\u00a0within the boundaries of the license<\/em>. These public\u00a0licenses\u00a0preserve the owner’s copyright in the content, but cede certain rights to anyone who wants to use\u00a0the\u00a0content.\u00a0The most common public\u00a0licenses are the six Creative Commons licenses<\/a>.\u00a0Creative Commons\u00a0licenses give anyone the right to use content for noncommercial purposes\u00a0with attribution to the content owner, and depending on the type of license, may additionally be able to use the content\u00a0commercially, create derivative works from the content, and\/or share the content with others under the same license (“share-alike”).\u00a0You can use public licensed content as long as you comply with the terms of the public license.<\/strong><\/li>\n
  7. Everything Else – “Murky Content”.\u00a0The 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”).\u00a0This is the content\u00a0that causes the most trouble<\/em>, because Internet users may have no way to know<\/em> 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\u00a0governed by a public or open source license. In this case, you need to make a judgment\/risk call\u00a0whether to use murky content.<\/strong>\u00a0\u00a0Generally,\u00a0using murky content\u00a0for commercial purposes carries the most risk, and using it non-commercially carries the least.\u00a0Most people don’t create and freely share\u00a0content\u00a0for the fun of it — they derive value from it.\u00a0If murky\u00a0content looks like something someone would want to monetize,\u00a0it’s likely\u00a0protected content requiring some form of license to use.\u00a0There’s no sure way to gauge the risk of using murky\u00a0content — 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.<\/li>\n
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  9. Some argue there is an “implied license” to use online content which protects users of online content.\u00a0They 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.\u00a0The 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.\u00a0It’s also important to note that the implied license argument\u00a0assumes that the content was posted by the content owner.\u00a0\u00a0Courts may be very hesitant to embrace\u00a0this concept as it would mean significantly watering down copyright protection for online content.<\/li>\n<\/ol>\n

    Don’t forget photos may bring up not just copyright issues, but rights of publicity as well.\u00a0If you use someone’s picture\u00a0found online to promote your product or service, not only could you face a copyright suit from the\u00a0copyright owner of the photo, the subject of the photo could have a claim against you\u00a0using their name or likeness in a commercial manner without their consent.\u00a0It’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.<\/p>\n

    Finally, as you navigate the world of online content, keep these simple rules in mind:<\/p>\n