Using Others’ Content – Legal Dos & Don’ts

Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)

Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)

I’ve received a lot of questions lately about how and when it is permissible to use other’s content without committing copyright infringement. This aspect of the copyright law is called fair use, and it’s a murky gray area. Each situation needs to be evaluated based on its merits as there few black-and-white rules regarding the legal use of others’ content.

Sharing a Post
If you like a post, you may want to share it with others. The legal way to do this is share a link to the original post with your audience. Sharing a link is the digital equivalent of pointing at something. It doesn’t create a copy of it. You will likely be accused of copyright infringement if you copy/paste the content from the original site to your website. Even if you have good intentions, you’re still interfering with the copyright holder’s right to control where their work is copied and distributed.

If you want to share a copy of a post, ask for permission. I get 2-3 requests a year from people who want to print and share copies of a post I wrote for training purposes or as part of a seminar. I’ve always allowed this as long as they include an attribution so the audience knows where it came from.

Commenting on a Post
If you want to quote someone in a post and add your own commentary to their thoughts, that is generally permissible. This is one of the things fair use is meant to protect. It’s best to quote the original post, provide an attribution and a link to the site, and then add your thoughts about it. By adding commentary, you’re more likely to be contributing to the conversation rather than committing copyright infringement.

One of the questions I was recently asked was whether they could write about the same topic as someone else. There’s no copyright protection for facts or ideas, so as long as you’re not copying someone’s working and claiming it as your own, you can write about the ideas as another writer, even without as attribution – unless you quote them.

Using an Image
This was an interesting question – someone asked when they write a post that comments on another person’s work, can they use the image from the original article. This raises a “red flag” for me because depending on the circumstances, it could be permissible or copyright infringement. If the article is about the image itself, then using the image is likely protected by fair use.

Otherwise using the photo from another’s post may be copyright infringement, especially if readers are seeking the original post and accepting yours as a substitute. I could see readers being confused because the image on the two posts are identical. If the image on the original post is not as essential aspect of the story, I recommend using a different image. I usually get my images from Creative Commons that come with the license to modify and commercialize the original.

Copyright and fair use are complicated issues that permeate the blogosphere. Before using another’s content, consider whether what you’re doing is likely to be legal and whether it might be best to request permission before using another’s content. If you have any question regarding using others’ content and fair use, please contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. If you want access to my exclusive content that’s shared only with my mailing list, please subscribe to the firm’s newsletter.

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Comments

  1. Your description of sharing a link as similar to pointing to the post is a terrific example and easy to understand. If only other intellectual property law were this simple.

  2. Thanks for putting these concepts into plain language. Every person who produces or publishes anything should be familiar. One of the things that I just cannot understand is why people think lifting images (or anything else) is OK without permission.

    • Ruth Carter says:

      The only explanation that makes sense to me is that people are misinformed. I think copyright basics should be integrated into middle school civics or computer classes so that people learn how to avoid this problems.

      • Ruth commented that, “…people are misinformed. I think copyright basics should be integrated into middle school civics or computer classes…”

        Ruth makes a great point! By the time students reach high school or college, it may be too late to change their copyright comprehension, in that, everything on-line is in the Public Domain and FREE to use.

        Introducing general topics of copyright, citing works & ideas (plagiarism), etc. in middle school gives students the best chance to be properly informed.

        The earlier students begin studying a new language, the easier time they will have absorbing it; try learning a foreign (or computer language) in your 30s+; perhaps impossible, unless you’re in an immersion program or studying/living two years abroad and actively immersed in the language.

  3. Thanks for the using an image section. I once had a guest blogger who provided an image with the post. Found out later that the image was copyrighted material and it didn’t matter that it was guest blogger content, it was on my domain. While a fiasco, the good news is the agreement I had with the guest blog submission allowed me to get the fees from the guest.

  4. Ruth wrote, “I usually get my images from Creative Commons that come with the license to modify and commercialize the original.”

    I’m cautious about using CC photographs, especially those marked with commercial licenses. What happens if the image was misidentified with a commercial license? Is the person who uploaded and marked the photograph with a CC license the actual copyright owner? Images affixed with commercial CC licenses may pose the most liability to users.

    With copyright infringement being viewed as a strict liability tort by many IP attorneys, you could be subject to money damages, though, perhaps only as an “innocent $200 infringer” (PLUS your legal costs!) when using a CC image that has been mismarked.

    With a number of inexpensive RF photo libraries proliferating the Internet, it’s easy to secure affordable commercial licenses. When you obtain one of these paid licenses, the licensor bears the liability, rather than the user.

    Before I include CC images in my projects, I will contact the photographers and ask them to verify that they have, indeed, affixed their photographs with CC licenses. I’ll also do a reverse Google Image Search to verify if the image tracks back to its author to further confirm the validity of the license. If a photographer doesn’t respond, if I’m not satisfied with the reply, if the image is having a hard time finding its owner through search, or my use doesn’t clearly fall within Fair Use, I’ll skip using the image all together—This is my best effort to limit my liability!

    At the end of the day, there’s no free lunch. If you’re expecting to use FREE creative content commercially without checking, you’re engaged in a risky business. Whether the image is marked with a CC license or not, always double-check the license’s provenance before proceeding. Protect your business by doing some due diligence!

    • Ruth Carter says:

      Thanks for sharing your perspective. I know some people take a screenshot of the CC image their using to show that when they used it, it was marked for commercial use.

      • Ruth wrote, “I know some people take a screenshot of the CC image their using to show that when they used it, it was marked for commercial use.”

        That’s a smart idea for anyone who’s using CC-marked images (keep good records of all licenses). However, what happens when a commercially-marked CC image includes identifiable people? Is the CC-user clearing these rights of publicity/privacy [unlikely]?

        To add to my previous concerns, how many people who release their images into the CC-sphere actually understand what rights they are granting third-party users [perhaps some]? Do licensors and licensees really understand what those CC licensing symbols actually mean [perhaps some]? Does everyone understand what “commercial” means [perhaps some]?

        Be cautious about visiting URL links (malware attached?) that point to FREE or CC-identified photographs. If your use of one of those “open-styled licensed” images actually belongs to Getty or another large stock photo company, instead of being sent a cease & desist letter, you could receive a demand letter of $500+ to settle your (unintentional) copyright infringement. If the infringe work has been timely registered with the US Copyright Office (and the use is not within Fair Use), users can be liable for enhanced money damages and attorney fees.

        Protect yourself & limit your liability when using CC or Public Domain images commercially–double-check their sources before proceeding.

        I’m concerned that very few IP attorneys are not advocating a similar due diligence process I’ve shared here when using Internet-found (FREE) photographs.

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