A few weeks back, I wrote on post on copyright infringement and intellectual property called, “Can You Use That Image You Found for Your Blog Post? Probably Not.” Not only were so many of you surprised to find out you can’t just use and share other people’s work (even if you link back/credit it), but you also had A LOT of questions on social media. Autumn Witt Boyd, attorney and owner of her own law firm, helps creative entrepreneurs with growing businesses solve their business and intellectual property issues. I can’t thank her enough for letting me interview her and answering some of the most common and overlooked questions surrounding copyrights and content.
Autumn takes care of all the legal “stuff” that we often like to sweep under the table and forget about (because it is SO stressful and daunting to even think about) so that her clients can stop worrying, and spend more time doing what they love. After six and a half years at a copyright litigation firm, she left her job because she, “wanted to have more fun, help people doing interesting things, and solve problems creatively” (what’s not to love about that mission?! It definitely fits in around here!). Autumn has been seen on Being Boss (an excellent podcast for creatives), Investopedia.com, and Business News Daily, so this Gem really knows her stuff!
Find out just how much a copyright owner can sue an infringer for (it’s A LOT OF $$$ so you definitely don’t want to be stuck in that infringer seat), common ways you might be putting your business at risk (without even knowing it), and what safe practices to use when sharing work other people have created:
How did you get into working with entrepreneurs on the legalities of owning a business?
When I first started my own firm, I tried to find a market that was a good fit with my skill set of intellectual property expertise, and background working with small businesses. I actually thought I would work primarily with startups (there’s a huge surge in startup companies where I live in Chattanooga). It turned out that personality-wise, I just naturally attracted more creative entrepreneurs, like photographers, graphic and web designers, life coaches, and other online business owners. I got involved in several Facebook groups for creatives (Being Boss, Savvy Business Owners, to name just two), answered questions and helped when legal issues popped up. This became my biggest source of clients, and I have loved working with this group of business owners!
What is the most important thing about copyright law/intellectual property that all business owners should know but are often unaware of?
You can’t use images that someone shares on social media on your website unless you get permission from the copyright owner! Just because someone shares an image doesn’t mean they want you to use it. I have several clients who have learned this lesson the hard way, receiving cease and desist letters demanding payment of thousands of dollars for the use of a single photo without permission. I’ve also represented photographers who have gone after businesses for using their work. A copyright owner can sue an infringer in federal court for up to $150,000 per copyrighted work, and their attorney’s fees. An award of more than a million dollars for use of a few images is not unheard of. Licensing fees are often a photographer’s livelihood and they take their copyrights very seriously. It’s just not worth putting your business at risk; take the time to find images where the owner has granted permission for anyone to use them for free, or buy a license from a legitimate stock photography site.
What basic protocols do you suggest for safely and correctly displaying someone else’s work on your website or social media?
First, make sure you got permission to use the work, in writing, from a legitimate source, either the photographer or copyright owner or a reputable stock photography site. Second, keep a record of where you got it in case questions come up later. I actually wrote a whole legal guide on this issue in case readers want to dig deeper: How to Use Images, Videos, Music, and Other Content You Didn’t Create Legally.
Why is “I’m giving them exposure by linking back” not a valid excuse for using someone else’s work?
That’s just not how copyright law works. In the U.S., the owner of a copyrighted work has the exclusive rights to make copies, distribute copies, publicly perform, display, and create other works from that work. The copyright owner also has the right to prohibit or prevent anyone else from doing any of these things (and the default rule is that you do not have permission to do these things, unless the owner gives it to you!). The law does not have any exception that allows someone to use someone else’s copyrighted work just because they link back or give credit to the source.
From my understanding, photos are copyrighted the moment they are taken. Does it work the same when someone creates a graphic design?
Yes, the rule for all works is that they are protected by copyright law the moment they are “fixed in any tangible medium of expression,” which includes taking a picture, writing something down or saving it in a computer file. Basically whenever the work exits your brain and is saved somewhere that someone else could see or hear, it’s protected.
How does copyright law work with memes/quotes?
Most of these are not protected by copyright because they’re too short. Copyright law only protects “original works of authorship”; examples include literary works (books), musical works, dramatic works (plays or movie screenplays), choreographic works, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works. There’s no bright line rule about how long something must be to be protected by copyright, but a short phrase or single sentence generally won’t cut it.
What about using sites like Polyvore that let you make collages and pull from thousands of stores and merchandise items?
You are always taking a risk if you use an image on your website without permission from the owner. If Polyvore guarantees that it has permission for you to use all the images it pulls, then you could choose to rely on that promise, but I don’t think that’s how it or other collage sites generally work. As a practical matter, most online store sites will not pursue an infringement claim against someone who’s promoting their products. But just because they generally don’t do that doesn’t mean they don’t have the right to do so if they choose.
Where does affiliate marketing fall in all of this and using photos from a brand to promote affiliate products?
Generally if you’re doing affiliate marketing you will have permission from the brand to promote the affiliate products; I would recommend getting that permission in writing if you plan to do so, just to be clear so there are no questions later.
How do large lifestyle websites get away with pulling content from other people? For example, when there’s a top 10 round up of interior design styles or ways to wear midi skirt for summer?
Like I said above, generally most online store sites and people who want their work featured will not pursue an infringement claim against someone who’s promoting their products or designs. But the best practice is always to ask for permission.
What is safe to use if you’re reviewing a book, movie, product, etc.?
If you were contacted by the producer of the book, movie, or product to do a review, ask if you have permission to use their images in your review (just getting this permission in writing is great). Otherwise, you’re taking a risk because you don’t have permission. The risk is probably a small one since they are likely to be happy you are featuring their item, but without permission you are infringing on their copyrights and always a target for a nasty cease and desist letter asking for payment of several thousand dollars, or even worse, a copyright infringement lawsuit in federal court asking for millions of dollars in damages.
What should you do if you find your work being used by someone else?
I always recommend reaching out to the person first, they may not know that they are breaking the law (do this in writing and keep it in your records!). If that doesn’t work, a more formal cease and desist letter either from you the copyright owner or a lawyer is usually the next step. There may be remedies under the Digital Millennium Copyright Act (DMCA), where you can ask the website that’s hosting the infringement to take it down. And if none of that works, the last resort is always a copyright infringement lawsuit. Lawsuits are very expensive and time-consuming for all involved — a copyright owner could easily spend hundreds of thousands of dollars in attorney’s fees and court costs and years, not weeks or months if a case goes all the way to trial. So I always try to avoid them and negotiate a settlement that makes everyone happy (or at least as little unhappy as possible!).
Anything else we should know?!
I am a copyright registration evangelist! Even though all works are protected from the moment they’re “fixed,” as a copyright owner, you can only get the top level of damages and recover your attorney’s fees in a lawsuit if you register your work before someone infringes it. A work also must be registered before a lawsuit can be filed. Copyright registration is fairly simple online (copyright.gov) and just $55 per work or group of works. I encourage all of my clients to register the copyright in any work they think might be copied. Even if they never actually file a lawsuit, a cease and desist letter is much more effective if the work is already registered so the owner can threaten to sue with the possibility of high damages and attorney’s fees.
Have you been sued for copyright infringement or has someone ever stolen your work? Share your experience in the comments!
This article is to be used as a resource for educational and informational purposes only and should not take the place of consulting a legal professional. Information is not legal advice and is not guaranteed to be correct, complete, or up-to-day. This information is attorney advertising and does not establish an attorney-client relationship, which is only formed when you have signed an engagement agreement.