TOS 01: Fair Use is No Excuse!
With the growth of social media and online marketing, unintentional infringement suits are on the rise. People attempting to use pictures, music, and videos that they did not create could find themselves as defendants in copyright infringement suits. Most of these unsuspecting people, wrongly assume that the Fair Use doctrine protects their use of the copyrighted material. People also believe that giving the original creator credit is sufficient. Those assumptions are simply wrong.
WHAT IS THE FAIR USE DOCTRINE?
The fair use doctrine is an exception law makers created to protect people from copyright infringement suits, but its applicability is limited. The doctrine allows individuals to use copyrighted work and reproduce it "for purposes such as criticism, comment, news reporting, teaching, (including multiple copies for classroom use), scholarship, or research." Unfortunately, enhancing blogs and online content are not purposes laid out in the code.
This list, nevertheless, isn't really clear. How does one really determine whether their use is educational or for research? Well, the law makers weren't to sure either. However they did say that the following factors would be used to determine whether the Fair Use Doctrine applies:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the whole copyrighted work; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Those factors may still sound like a lot of "mumbo-jumbo" and rightfully so. These issues are constantly litigated in Federal Court.
The summary is if you are using a picture, video, or song to help your business and help you make money, without the creator's (or copyright owner's) consent, you don't pass the fair use test.
If you are critiquing the content or commenting on it, then you are likely fine.
HOW TO AVOID COPYRIGHT INFRINGEMENT LAWSUITS?
The easiest way to avoid such suits is to use stop using media when you don't have permission. There are many sites where you can purchase or simply download images with the copyright owner's permission. One site, for pictures, that I personally use is canva.com. It's a free site that allows you to create and download numerous images. If you do decide to use the material, you have to pay a menial licensing fee, but the images you receiving access to are stunning.
You could also tap into your inner detective and track down the right copyright owners. If you do so, get their permission in writing.
If you think that you may be the target of a copyright infringement suit, or you suspect that your work has been infringed on, contact an attorney who can help you identify the problem and come up with course of action.