Is Your Web Content Legal?

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In a recent article about creating successful content marketing for your business, the subject of copyright infringement came up. While posting content to the web, there are several legal issues you need to know not only to not break copyright laws but also to protect your own copyrighted material and the integrity of your content.

Why Your Content is SO Important

While the article is worth reading for a full description and great tips on content marketing, in brief, it’s the practice of communicating with your customers and prospects without selling. It is non-interruption marketing. Instead of pitching your products or services, you are delivering information that makes your buyer more intelligent. In a great sense, it’s like a blog you write for your business, which holds CONTENT that engages people in the hope they will come back, become fans, give you trust and loyalty while the recognition, loyalty and trust built through content marketing translates into sales.

Thief looking around a blank signWith more than 84% of those businesses surveyed responding that they are increasing content production, clearly—blogging and advanced content are taking a prominent position in B2B marketing. The leading content types being created are case studies (62%), white papers and ebooks (61%) and press releases (58%). Infographics have also been hot, increasing from 28% last year to 43% this year (read some tips for creating easy, effective and amazing infographics). More interactive content, such as “advertorials,” webinars and social media engagement appear to be on the decline with B2B marketers (but on the rise with B2C marketers). Budgeting trends are also telling; last year 20% of marketing budgets were allocated to content. This year the number is closer to 30%.

The credo of content marketing starts with six basic things you must understand and accept:

  • Dedicate resources to creating great content (whether paying outsourced/contributed writers or in-house editors).
  • Enforce high quality editorial standards on all content types (writing, illustration, video).
  • Don’t just produce content about yourself; create content that’s helpful to your audience.
  • Develop a community of users around a topic (rather than around your brand/business) and let your brand be the host of the community.
  • Share content smartly through social channels.
  • Remember consistency and patience in building up an audience.

Another basic is to show honesty to build trust and loyalty. Part of that is to stay away from using copyrighted images you don’t own or haven’t purchased.

If one wanted to number the problems the web can cause for individuals, the first would be those who believe The Onion is real news — the second would be that people believe if images appear on the web, they are open to be used for free, by anyone, for anything. In third but running a close second, is no one ever reads the Terms of Service when they sign up for a content-driven site like Facebook, Pinterest, Vine, Instagram or Google+.

When People are Stealing YOUR Work

Trademarked characters have become big business for some fan art creators. Posters, T-shirts, and other items appear at Comicons, CafePress, Etsy and private web sites and the question is, how do they get away with it and do they get away with it?

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The thief of ideas

In Jonathan Bailey’s article, “The Messy World of Fan Art and Copyright,” which appears on PlagarismToday.com, he states:

Very few copyright issues are as divisive or as headache-inducing as fan creations. Whether it is fan fiction for a popular fantasy series or fan art of a popular movie, these creations almost instantly walk into a copyright mess that can be enough to make even the boldest attorney cringe.

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Bailey continues with a look at the legal ramifications:

According to copyright law, copyright holders have the sole right to distribute derivative works based on an original creation. This includes sequels and any other work that includes copyrightable elements from the original creation.

As was confirmed in the recent “Catcher in the Rye” case, characters can be granted copyright protection as can many other non-expression elements of the original work. This is furthered that most fan creations are built upon plot elements and other copyrightable parts of the original material.

That being said, fair use may protect some fan creations from being an infringement, but that is handled on a case-by-case basis, looking at the facts of the actual work. However, most fan creations, by their very nature, don’t parody or criticize the source material, which would provide a great deal of protection, nor are they highly transformative, meaning that they are less likely to win in the even that such a suit takes place.

It is also worth noting that fan fiction and fan art can be a trademark violation as well, especially if it uses names and titles in a way that causes confusion as to whether they are official. Trademark disputes over fan creations are rare, but still possible.

Yet, despite a relatively strong legal position, lawsuits over fan fiction and fan art are extremely rare. This is especially odd considering that many of the rights holders who are the most common target of fan creations are also among those most aggressive at stopping other infringement of their work.

Thief WorksOn the fan’s side, Bailey writes:

From a copyright holder viewpoint, fan fiction and art is usually not very harmful. Fans create works that are openly recognized to be non-canon to the story and are not replacements for the original.

In fact, some feel these fan communities actually serve a valuable service to copyright holders by providing a thriving site for fans to visit, keeping them entertained and engage between official releases. In short, since fan creations don’t take away sales of the original work, they are often seen as free promotion and a way to grow the brand without cost or effort.

The bigger issue, however, is the cost of going to war with fans. Being litigious with creators of fan art can be very costly, not just in terms of court costs, but in terms of backlash. No creator wants to sue their fans, especially when the fans aren’t earning revenue, and as such most creators will tolerate fan fiction and art under most circumstances.

In Lauren Davis’ article on io9.com, she states:

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So is it illegal to sell your fan work? Not necessarily. It is possible to commercialize fan works, especially when those works critique or parody the original. The case that hits home just how securely parody fits within fair use is Campbell v. Acuff-Rose Music, which held that 2 Live Crew’s rap parody of Roy Orbison’s “Pretty Woman” was a legal, non-infringing parody, even though their use of the song was clearly commercial and used substantial amounts of the original song. A more literary case is that of The Wind Done Gone, Alice Randall’s novel that retells Gone with the Wind from the perspective of a Tara Plantation slave. Although the 11th Circuit in the resulting court case Suntrust v. Houghton Mifflin Co. didn’t actually rule that the book was a fair use parody, it did vacate an injunction against the book’s distribution, stating that it was possible that a carefully written parody, even one that borrows so heavily from its source, could be a legitimate fair use. The case was ultimately settled out of court.

So perhaps you want to skewer Rowling’s original text by retelling the Harry Potter story from Draco Malfoy’s perspective, portraying Harry Potter as a rich, popular jock who always gets his way. The more you transform and comment on the original text, the more likely you are to create a work that falls under fair use, even if your work is commercial. Consider the numerous Twilight spoofs on the market.

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Tad Crawford, attorney, author and founder/publisher at Allworth Press, has been involved in artists’ rights and the copyright law for numerous years. He gets right to the point:

Fan art done for personal pleasure shouldn’t carry legal risks as long as the art isn’t displayed or disseminated. On the other hand, fan art done to make a profit will expose the fan to the risk of suits for copyright and trademark infringement. We all know the enthusiasm with which Disney, for example, pursues those who copy their characters. It’s unfortunate that a labor of love can become a legal nightmare, but profiting by selling legally protected images does involve legal risk.

In other words, as per the opinions and advice of all the legal sources quoted here, have fun drawing and painting but when you put it on the web or try to sell it, be prepared for legal action and remember, just the attorney’s fees will cost you more than you are prepared to spend.

It Might Not Be YOURS Anymore

If you’ve read the Terms of Service when signing up for a content site, you may very well find a passage like this:

By making available any Member Content through the Site, Application or Services, you hereby grant to (company name) a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Application or Services. 

Thief stealing a laptop computerThese terms, unfortunately, are similar in just about every site we use on a daily basis. In the case of the once popular MySpace, suddenly new bands and artists discovered the terms to which they had eagerly agreed gave the site owner, FOX News Corp., rights to use, distribute and sell to the devil all their material, copyrighted, trademarked or patented. Material was quickly deleted but that little passage seen in user’s terms on many sites; “we will cease distribution as soon as practicable,” doesn’t actually spell out what time period is “practicable.” It very well may be several years if a licensing contract has been granted a third party.

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Can you guess which popular content site lists the following passage as one of their Terms of Service… and you’ve accepted it?

You hereby grant (company name) an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content you (i) Post on or in connection with the (company name)  Service or the promotion thereof subject only to your privacy settings or (ii) enable a user to Post, including by offering a Share Link on your website and (b) to use your name, likeness and image for any purpose, including commercial or advertising, each of (a) and (b) on or in connection with the (company name)  Service or the promotion thereof.

Of course, no one can give away the rights to your copyrighted material by using it as their content on a site. If you are a photographer , artist, designer or illustrator and a fan posts a piece of yours onto their Facebook profile or Pinterest account, those sites have no right to use the material. If you, as the creator post art or photos to your account, you are stuck with the terms to which you have agreed.

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How does that feel? Other people making money off your work and efforts even though you are protected by law? If you are not a creative, can you empathize with those who make a living through their creations? Do you believe that if you were losing income because someone else was stealing your work, you would have the right to be angry and sue for lost income, damages and penalties?

Images on the Web are NOT Free!

Unfortunately, there are many people who believe that they can use images they find on the web for free. Some use them for blog content and others make full commercial use of them. Sometimes the belief is that they won’t get caught and even if caught, there will be no prosecution. In the age of the internet, none of this is true. It’s theft and penalties can destroy your business. If you’re going to invest in content marketing, invest a dollar more for a stock image and move forward with a clear conscience and a clean record as a reliable business.

Images ©GL Stock Images

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