Copyright law, in a nutshell, protects any original creation, such as pictures, writings, creative efforts (dramatic, musical or choreographic works), computer software, architecture, etc., as well as any derivative work based on the original creation, by allowing the holder of the copyright exclusive control over who can reproduce, sell, disseminate or perform the protected work. Names, phrases or slogans, facts, ideas, procedures and processes, etc., cannot receive copyright protection.
A copyright can be registered with the U.S. Copyright Office (which allows the holder certain advantages under the U.S. Copyright Act) but it is not required, as copyright automatically attaches once the work is created and fixed in a tangible form. In addition, copyright owners are not required to use the “©” symbol, even if there work is registered. For these reasons, when you see an image or view a written work that has no distinguishing copyright marks, do not be fooled into thinking it is in the public domain and thus, free for any use.
Below are some tips that can help protect your start-up or existing business from the hassle and expense of a copyright infringement lawsuit:
1. Do not take pictures or videos directly from the internet and use them for any purpose. Just because a colorful, geometric design found through an internet search that would be perfect for your website lacks distinguishing copyright marks, does not mean it is in the public domain. In fact, most images, pictures and/or videos on the internet are copyright protected.
2. If you find a photo, art or video that you want to use on your website or printed materials, consider contacting the author and inquire whether you can use the work. Many authors will permit you to post their picture or work with the stipulation that you reference the work’s origination.
3. If you find something written on the internet that would be of good use in your promotional material, make sure to only take the general idea of the post and make sure you put the writing into your own words.
4. Using someone’s work and providing a link back to the originator without express permission is still copyright infringement. Implied permission is not sufficient so never assume permission has been given.
5. Unless the work or image is expressly dedicated to the public domain, do not use it unless you obtain the owner’s permission.
Some electronic images may contain electronic “tags” that allow owners to track use of their copyright images. The owners of the images (or their attorneys) may then send a “cease and desist” letter to unauthorized users, demanding past and future licensing fees, and threatening litigation if the fees are not paid. Unsuspecting small business owners who have downloaded images, believing them to be for public use, are often caught off-guard and incur expenses for which they have not budgeted and which may significantly impact their businesses. Therefore, the guiding principal is, when in doubt, do not download.
If you receive a cease and desist letter for using an image or work that is purported to be copyright protected, contact an IP attorney to help you understand how best to proceed. This will help you avoid costly litigation fees in defending the lawsuit from an overzealous plaintiff.
Jennifer T. Poochigian
Addendum added April 24, 2019: Be aware that even materials that can be used without paying may have licensing requirements. The most common appears to be "attribution", meaning you use an image and credit the photographer. Failure to strictly comply with the licensing requirements can create liability or at least invite litigation that you will need to pay to defend. Law professor Eric Goldman's blog discusses this further: https://blog.ericgoldman.org/archives/2019/04/photographer-sues-for-failure-to-provide-creative-commons-required-attribution-philpot-v-wos.htm
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