7 Things You Need to Know About Images & Copyrights
Images are powerful.
And can also be the bane of the marketer’s existence. Social outlets thrive on images, and for good reason! They convey thoughts, emotions, and ideas better than 140 characters. Some marketers though, can get overwhelmed by the licensing jargon and cost-prohibitive nature of finding high-quality stock images.
I’ve felt that way too. But taking images without attribution isn't an option! Often times, while I’m scrolling through various outlets (primarily Twitter, Facebook, Instagram, and Pinterest) I see what could only be described as a copyright violation.
Protection in Action
Have you noticed how many photographers place their logo as a watermark? How stock image sites do the same so you can’t just screenshot or save the image without downloading? Or how many bloggers use an image for Pinterest, and place their name with the title, so everyone will know where it came from?
It’s not them being mean. It’s them trying to keep the attribution for their idea.
Why I Find This Important
Why I find this important
From the first day of freshman year as a media major, we were taught to be careful where we take music from, where we’re allowed to post our projects, whether it was considered educational fair use or not, and how to give attribution for images used in presentations.
There was also this time when someone used an image I had created for the student radio station as their profile picture. I was thrilled someone found enough meaning in one of our posts that they put the effort into changing their profile picture, but I was also (okay, slightly still am) bitter about how there was no attribution back to the station.
That was when I learned the trick of watermarking our images. (Insert clever laugh here.)
Because I believe both that images are crucial, and copyrights exist for a reason, I’ve created this post. I’ve taken much of the technical information from my Media Law & Regulation textbook.
Another title I was considering was “Why I Knew I Should Keep My Media Law Textbook”. But I figured that wasn’t as great for SEO. :)
So, without further rambling about how simultaneously great and stressful that class was, here are some key aspects of navigating images in your marketing efforts.
What You Need to Know
Note: Unless where noted, all information has been taken from Electronic Media Law & Regulation Reader, 2014-2015 Edition, Edited and Compiled by J. Wesley Baker. Used with permission.
1. There are six exclusive rights that are granted.
The Copyright Act of 1790 offers protection to creators of original works. This includes literary, dramatic, musical, artistic, and some other intellectual works. This protection is held in Title 17 of the U.S. Code. Since copyrights were first introduced in 1790, additions have been made to include the six rights offered today.
To reproduce the work, like in copied form.
To prepare derivative works based upon the work (like arrangements, translations, abridged versions, or a movie based on a written work. Source.)
To distribute copies or photorecords to the public (sale or other ownership transfer, or rental, lease, or lending).
To perform the work publicly (In addition to a concert or art show, showing a movie is considered a performance).
To display the copyrighted work publicly (this includes all iterations, like an image from a movie).
When sound recordings are involved, to perform the work publicly also includes digital audio transmissions.
For example, if you take a picture, you have the right to print it in a physical form, sell copies, and to place it in an art show. Unless you grant someone specific permission, no one else has these rights.
It’s also important to note that simply owning a copy of the work does not give one the authority to use the content as they desire. The content within is still owned by the copyright holder. If you’d like to use content within the work, you would need to gain permission.
2. Copyrights are just one type of Intellectual Property Right (IPR).
In addition to copyrights, there are also trademarks, service marks (yes, there’s a difference), and patents.
Trademarks, while generally used to describe protections for service marks as well, are defined as any combination of word, name, symbol, or device used or intended to be used to identify and distinguish one seller’s goods from another. It also shows the source of the goods.
Service marks make the same distinction as trademarks, but are designed to protect one’s services, not goods. Any word, name, symbol, or device used (or combination thereof) is protected under a service mark.
Patents offer protection to the inventor of a device that is new, useful, and nonobvious. The invention is protected for 20 years, which gives the inventor the ability to prevent others from exploiting the invention.
Even though this post involves copyrights only, I believe it’s smart to know about IPR in general, and have a basic understanding.
3. You do not need to formally register with the U.S. Copyright office to be considered the copyright holder.
Did you know that as soon as you tangibly record any original work in a fixed form, it’s considered copyrighted and protected? Original was defined by the U.S. Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., Inc. in 1991 that in the context of copyrights, original “means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity” (1991, at 345 (internal citation deleted)).
Your work can be on a CD, a hard drive, or physically available. If it’s in a fixed form and original content, you have a copyright on it.
4. There are limitations to what can be copyrighted.
Even though titles or slogans may be original, they cannot be copyrighted. This is because there is not enough originality to qualify. (Hence trademark protections, because they are still considered intellectual property.)
Additionally, facts and historical events cannot be copyrighted. Although, if you create an original work containing these facts, like a history book, that can be copyrighted. In 1997, the 2nd Circuit heard the case National Basketball Assoc. v. Motorola, in which the NBA contested that Motorola committed copyright infringement by posting game scores and statistics. The court ruled against the NBA in a ruling that held that Motorola was only reproducing the facts, not how the NBA published said facts.
A third facet is that an idea must be in a fixed form. So an idea of a book cannot be copyrighted, per Title 17 of the U.S. Code, § 102(b).
Perhaps the biggest limitation to copyright protection (and the most contested), is the issue of fair use. One example: a creator of a recording can’t prevent someone from recording a cover that may sound similar as long as the original is on sale to the public, and as long as it does not alter the original past the fundamental character of the work. To give permission for recording and arrangements, the owner of the composition issues a compulsory license if it’s been requested.
Note that works of the U.S. Government are not eligible to be copyrighted, so they are always in the public domain.
5. It can still be beneficial to formally register and/or have notice.
A quick history lesson: originally, the owner of a copyright needed confirmation of registration with the Copyright Office before a work was protected. The work would need to be physically submitted (books were allowed only a title page if necessary), and once confirmed, would need to have a physical note that it was copyrighted. If there was an error with registration or the notice, the work was no longer protected.
When the extensive changes in 1976 were implemented, copyright owners received immediate protection. And while holders were no longer required to register, the notice still needed to be present. (Ie, the ©, the year, and the name of the copyright holder.)
The requirements (or lack thereof) changed again when the U.S. joined the Berne convention in 1989. Formal requirements that changed the “exercise and enjoyment” of content were now restricted. This change meant a formal copyright notice in no longer required.
Now, what it means today.
A notice can still be beneficial. If a notice is present on a work and someone commits infringement, there is an automatic denial of an "innocent infringement" defense. (Used by someone claiming they did not know that a work was copyrighted.) This is why, especially for larger projects, publications, a website, etc, it’s beneficial to take the time to place a notice.
For my personal portfolio website, I have a notice on the bottom of each page. It took maybe ten minutes to code and format, and it protects my work from a potential “I didn’t know it was copyrighted” excuse. Also, let’s take the time to point out that that’s a silly defense in the first place, since now all work is protected without the need for a notice immediately upon tangibly recording it.
Copyright registration gives a number of extra protections, as well.
Registration offers a public record of the copyright.
Registration is necessary before filing an infringement suit. (For works of U.S. origin.)
If registered before 5 years after publication, it will establish prima facie evidence in court of copyright validity.
If registered within 3 months of publication, or prior to an infringement, the copyright owner can receive statutory damages and attorney's fees in court actions. If this isn’t the case, only actual damages and profits are available.
In short, do I believe that every single piece of content should be registered? No. But for high profile pieces, or for content you believe may be vulnerable, it’s worth considering.
If you are in the unfortunate place of proving infringement, you have the burden of proof. You need to show "substantial similarity" from your work and the work in question. Additionally, you’ll need to prove the infringer could have seen, heard, or otherwise had access to your work. Lastly, there has to be proof that you own the copyright and that it can qualify as original work.
6. Copyrights can expire.
Have you heard of Project Gutenberg? It’s an online database of books whose copyright protections have lapsed and gone into public domain. Because of that, the books are free. This is also true of many older hymns, which means there isn’t a need for licensing for public performance.
This is a great example of copyright terms. The Constitution, in the provision on this issue, emphasizes that there are limits on the holder’s rights. The underlying purpose of the Copyright Act is to promote creative development, and having unending protection can hinder that.
The term lengths have varied and continued to change since the initial creation of the guidelines in 1790.
1790: A 14 year period that could be renewed if the author was still alive
1831 revision: Initial period was extended to 28 years, but the renewal period was still 14 years. Another change was allowing widows and children the right to renew if the author was deceased when the term expired. After that renewal, the work would be protected for 78 years.
1909 revision: The renewal period changed to match the initial protection period, 28 years.
1976 revision (where things get complicated): For works published on or after January 1, 1978, the initial term is the life of the author plus 50 years. For works published prior to that, the term changed to the initial 28 years plus a 47-year renewal term (a total of 75 years.
1998 revision: the Sonny Bono Copyright Term Extension Act added another 20 years to the 1976 terms. So, copyrighted works before January 1, 1978 had 95 years of protection, and for those published in or after 1978, the term is now the author’s life plus 70 years.
7. Fair Use is Important.
Fair use is a critical element of copyright law, because it gives some exemptions from the protections offered to creators. The concept of fair use was added to the Copyright Act in 1976, and contains certain exceptions that are not deemed infringement.
Use of reproductions or phonorecords
There are a number of factors that help users determine if their use is considered fair use.
Purpose and character of the use (The list mentioned above.)
Nature of the work (Informational work is more likely to be allowed than creative work.)
Amount and substantiality of the section taken versus the work as a whole (Common belief is that there is a buffer of what can be used without permission - there isn’t. However, some individual companies have created their own guidelines.)
Effect the use will have on the market or value of the work (Will the use undercut the creator’s profit or name?)
In Campbell v. Acuff-Rose Music, Inc., in 1994, The U.S. Supreme Court determined that all four of these factors needs to be examined when a fair use violation is in question. There are no firm guidelines within the Copyright Act, which has made this matter more complicated. Even in journalism, where First Amendment protections are usually substantial, are not exempt from these considerations.
When in doubt, license. Unless the fair use doctrine clearly applies, going through the effort to license is worth the peace of mind.
Whew! Great job getting to this point! I know this is a lot of information, but it’s important to have even a basic understanding of these issues when looking at image use for blogs and social media. And, as content creators, it’s important to know when, how, and why our work is protected.
Click here for a free infographic with the key points!
Thank you, Dr. Baker, for your patience and support of us as we tried to make sense of 1,000 pages in one very short semester. I never felt so smart as when I was looking at case files for this class. :)