You’ve just crafted inspiring text to share online. Now, you’re hunting for an image to complement your post. The last thing you want is to be on the receiving end of a letter from a lawyer claiming you’ve violated the copyright of a photographer or designer.
If you’re a blogger, writer, content creator or digital marketer, you don’t want a copyright misstep to mar your work. And because you’re also a creator, you care about the Golden Rule. Just as you don’t want others passing your words off as their own, you don’t want to grab the creative work of another without permission.
To avoid infringing on the intellectual property rights of others, don’t fall for these three copyright myths.
Myth 1: If an image doesn’t have a copyright symbol or isn’t registered with the federal government, it doesn’t have copyright protection.
In the United States, copyright attaches the moment a work is in a fixed, tangible state. That means that a photographer owns the copyright to his or her picture the moment the photo is taken. A designer owns the copyright to an infographic or clipart once it is created. Neither registration with the U.S. Copyright Office nor the © symbol is needed to create copyright.
However, please note that registration is needed before the copyright holder can file a lawsuit. But that doesn’t mean that a copyright owner has no rights. The copyright holder can still demand that the infringing work is removed. Moreover, the owner can ask a website or internet service provider to remove the infringing work by filing a takedown notice under the Digital Millenium Copyright Act. (For more on the DMCA and how to file a takedown notice, click here.)
And, of course, the copyright holder can register the work, then sue, although the amount of money he or she can seek is more limited than if the work had been registered before the infringement.
Myth 2: If an image is online, it is in the public domain, and therefore it can be used.
Don’t confuse an image that is publicly available with an image that is in the public domain.
The public domain is a legal concept. The public domain includes creative works where the copyright has expired, the rights were forfeited, or where the rights never existed such as for many U.S. government works. (For more on copyright-free works from the U.S. government, as well as exceptions to the copyright-free rule for government works, click here.)
A work such as a book, blog post, or social media post may be available to the public. But just because the work can be seen, read or even shared doesn’t mean that the original creator has given up his or her copyright any more than a musician gives up the copyright to a song because it was played on the radio.
Myth 3: Attribution negates copyright infringement.
Don’t confuse plagiarism with copyright infringement. Plagiarism addresses ethics. Copyright infringement can trigger legal liability.
Passing someone’s work off as your own looks bad, can cause public embarrassment, and prevents the original creator from being acknowledged for their work. That’s why you should properly credit work to the creator. (For a more extensive discussion on plagiarism and copyright infringement, read this article by Jonathan Bailey.)
Copyright infringement can lead to threatening letters and being a defendant in a court case. To be sure, fair use may be raised as a defense to a copyright infringement case. Winning a fair use argument requires the weighing of four factors, which I’ll address next week. However, one way to avoid having to rely on the argument of fair use is to get permission from the creator. (In the meantime, you may want to visit the U.S. Copyright Office’s FAQ page.)
Next week, I’ll take a look at fair use. And look for subsequent posts on recommendations for how to use creative commons licenses to find images for your work.
In addition to blogging and writing, I’m also a lawyer who teaches media law. And because I’m an attorney, I need to provide this important disclaimer: This post is presented solely for information purposes and it is not legal advice. This post doesn’t create an attorney-client relationship with the reader. Please consult with a lawyer before you rely on this information.
The paperback version is also available on Amazon.