Copyright and Copywrong

Copyright law seems to be poorly misunderstood by a great many people. I’m not an attorney, and I’m particularly not a copyright or intellectual property attorney, but I believe I have an informed layman’s understanding of copyright matters. Knowing the basics of copyright law and the legal issues surrounding the use of copyrighted material can help one stay out of trouble. I’ve had two recent copyright issues that might be helpful to discuss.

Copyright Incident #1

Not long ago, I made a copyright mistake during the course of a project for a client whose site had previously been created by another website designer. The site’s content was decent, but it badly needed a new design and underlying code structure to make it user-friendly and search-engine-friendly, along with the addition of some new features. So I used the existing content and placed it into the new design. Two of the pages in the previous site contained articles that carried copyright notices. My mistake was in assuming that those two articles were used with permission — that either the client or the previous designer had contacted the copyright owner and obtained permission to use those two articles. I didn’t verify that assumption with my client; I simply used the articles on the new site. It turned out that permission had not been obtained, and before long my client received a cease-and-desist letter from the copyright owner.

Ironically, the old site was so search-engine-hostile that the articles could probably have been used forever on the previous version of the site, and the owner would never have discovered their use, because they never would have been found in any search engine. However, I made the client’s site crawlable by search engines, which made it easy for the copyright owner to track down the unauthorized use of the articles.

Take-Home Lesson: Never assume anything about copyrighted material. I don’t consider it my responsibility as a website developer to police the content my clients provide me. I occasionally use stock photos on client sites where I purchase the license myself, but otherwise content is the client’s responsibility. However, while it may not be my legal responsibility, it certainly represents good practice to help my clients (and, incidentally, myself) to stay out of trouble.

Copyright Incident #2

Not long after the cease-and-desist incident, a different client sent me a collection of photos to be used on his site that I was developing. The images were all embedded in a Word document, and I used a program called FileJuicer to extract the images. FileJuicer’s a great little program; it works on Word files, PDFs, and many other file formats, and extracts into separate files all the images and other embedded elements from the file. When using FileJuicer, I usually don’t pay attention to any files except the images that FileJuicer extracts — but in one of those weird coincidences, I happened to open the URLS.html file that FileJuicer created. This file was a clickable list of links where all these photos came from.

It turned out the photos were lifted from a variety of websites, and I was pretty sure my client had not obtained permission for their use, particularly since one of the sources was a competitor of my client.

I contacted my client and let him know, as diplomatically as I could, that he was not legally permitted to use those photos on his site unless he had permission. I offered suggestions for alternative approaches, including contacting the copyright owners for permission to use the images, taking his own photographs, and paying for a license for photos from one or more of the royalty-free stock photo sources. Fortunately, my client saw the wisdom of this, and agreed to use photos from other sources.

Take-Home Lesson: Clients will generally be reasonable about this kind of thing, when you’re trying to keep them out of trouble. If I had ignored what I discovered from the URLS.html file that FileJuicer created, my client would probably have been hit with a number of cease-and-desist notices from a variety of different entities.

He may even had received one of the dreaded Getty Images demand notices. Getty Images has been in the habit for some years now of sending threatening and intimidating settlement demand letters to people who are allegedly using a Getty Images image without a proper license. Getty often demands exorbitant sums — they often demand in the neighborhood of $1,500 to $2,000 for a photo that can be licensed for $40 or $50. There’s no telling how many people roll over and pay these exorbitant and ridiculous sums in the face of the threatening letter from Getty, reasoning that an individual or small business owner is better off paying whatever Getty asks, if it will make Getty go away, thus avoiding the hassle and expense of a lawsuit.

It’s entirely possible that the photos my client sent me originated from Getty. The sites he got the photos from may have paid Getty for a license, or may have lifted the photos from somewhere else that had paid the Getty license fee. Either way, my client could well have received one of those hostile Getty demand letters if I had proceeded to post the photos he sent me.

Here are a few guidelines on copyright and using material that you didn’t create yourself:

Copyright Guidelines

Copyright Fact #1: Virtually anything you might find on the Internet is copyrighted. If it’s legally capable of being copyrighted, it’s copyrighted, unless the author or creator has explicitly placed it in the public domain. (And note that “it’s on the Internet” does not mean it’s in the public domain. It’s still copyrighted.) In the United States, anything created in the past 75 years is subject to copyright, and everything created since 1989 is automatically copyrighted at the moment of creation — no need for a copyright notice, and no need to register the work with the U.S. copyright office. Simply by virtue of creating it, the creator owns the copyright. (There are exceptions that hinge on “works made for hire,” under which a work created by an employee in the course of his employment is owned by his employer. I won’t address “work for hire” just now, except to note that it exists.) Generally, you must assume that if a work exists, it is copyrighted.

Copyright Fact #2: You may not use copyrighted material without the express permission of the copyright holder. There are exceptions here, too, such as fair use for commentary or criticism, but in general, one must assume that one cannot copy and use material owned by others without their permission.

Copyright Fact #3: Even if you’re not making money from the copyrighted material, or if you’re not using it for commercial purposes, you will still be committing copyright infringement if you use it without permission.

There are lots and lots of nuances, considerations, exceptions, and ramifications when using copyrighted material. Bear in mind, IANAL — I Am Not A Lawyer. Anyone wishing to use any copyrighted material in a way that they think is permissible under copyright law should consult a competent IP attorney for appropriate legal advice. My bottom line message is:

Never use material that you did not either create yourself or obtain permission from the copyright owner to use. That approach will keep you out of trouble.

• Brad Templeton’s “10 Big Myths about copyright explained” is a nice summary of some common copyright myths.
• If you like to get it “straight from the horse’s mouth,” the U.S. Copyright Office has very comprehensive information on copyright law, along with an online form for registering your copyrighted works.