The Legal Blog

When I was growing up, the Encyclopedia was my “go-to” place for information.  Our family home always had the latest edition. If not in the encyclopedia, the local public library was my next stop.  I would read an article or book passage, take notes, write what I’d learned in my own words and voila my homework, research, or report was complete.  You see, when I was growing up, computers took up entire rooms and content was published on paper – books, newspapers, magazines, and yes, sometimes even broadcast on television or radio.   It was always perfectly clear to me what someone else authored and owned. Copying was tedious. Copying took effort.

That was then, this is now.  Encyclopedias are a rarity in homes today; and library research is an anomaly.   The Internet is exponentially growing; and along with it Internet-based digital content creation.  I read recently that there are over 4 billion Internet users today. Those users are generating millions of posts, videos, blogs, images…every type of content imaginable; content readily accessible to millions of people all around the world.

Readily accessible? Yes.  Free to use? Not necessarily.

You see, digital creations are legally protected just as their non-digital counterparts.   When I talk of “creations”, whether digital or non-digital form, I’m including photographs, artwork, music, videos, writings, and everything in between.  If someone created it, someone owns it.

Before using someone else’s content, you need to figure out who the actual owner is.  Sounds easy? Maybe not. You see: when you access content, especially online, the content may not belong to that website, blogger, or other publisher.  They may have used the content without the owner’s permission or they may have received permission from the owner to use, but not for others to use or copy.  The originator may not even be the owner. For example, they may have sold the content to someone else or created it under a “work for hire” agreement. Knowing who the owner of the content is before considering using, republishing, or even linking to it is vital to avoiding legal ramifications.  The actual owner, you see, is the person or business you need permission from before using any content.

It’s better safe than sorry.

Once you determine who owns the content, you need to figure out what legal restrictions on re-use apply.  Re-use could include using all of, a portion of, a reference to, or even a link to the content. You should check that you are adhering to copyright law, trademark law, terms of use, and any other legal regulations or laws that are applicable.  This upfront work can save you time, money and a whole lot of stress if you are accused later of infringement. Even if you didn’t know you were infringing, even if you actually didn’t infringe, accusations of copying can tarnish that reputation you’ve worked so hard to develop.  This is NOT how you want to make the headlines. Impermissible copying can be expensive as well. Copyright infringement, for example, can cost you anywhere from a few hundred to many thousands of dollars for each work infringed. You can be subject to not only civil lawsuits, but even criminal penalties.  In some cases, the infringer can even end up in jail! Wow!

Let’s avoid all that by doing our up front research.

First line of defense – use your own unique content.

Second line of defense – be sure you have permission to use anyone else’s content.

Now I know there are times when you really can benefit from someone else’s creation.  That’s OK as long as you minimize your legal risk. Let’s take a look briefly at what that means.

Minimizing Legal Risk of Using Other People’s Content

When you use other people’s content, you risk violating their copyrights.  

This can be a bit tricky because copyright protection arises as soon as the original work is created.  Even if the author/owner does not mark the content with a copyright notice, it is still protected. Even if the author does not register the content with the Copyright Office it is still protected.  You got it – it’s protected and can only be used with the owner’s permission.

Even if you change the original work, you are still violating the copyright as only those with permission or the owner can publish “derivative works”. (i.e. works that use a modified version of the original.)

The risk: if you infringe (i.e. found by a court to have impermissibly copied) a registered copyright, you can be subject to paying the copyright owner fines that are specified by law (statutory damages) as well as financial compensation to the copyright owner for money they lost from your infringement (actual damages).  These fines can be in the 6 digits – so be cautious; but that’s not the biggest risk. If you willfully copy or distribute by electronic means an item of high enough value ($1000 or more) or large enough quantity (10 or more), you could be imprisoned! Yes, it can be a criminal offence to impermissibly violate someone’s copyright rights.  Not really worth using that pretty image is it?

When you use other people’s content, you risk violating their trademarks. 

State and Federal Trademark laws protect trademark owners from impermissible use by others.  When you use someone else’s trademarked content, the owner may have the right to take legal action against your business for trademark infringement, trademark dilution,  or false advertising.

When you use someone else’s trademark without their authorization, you’re potentially liable for trademark infringement if the use is likely to lead to confusion.  Even if there is no confusion, you’re potentially liable for trademark dilution if you cause “tarnishment” and “blurring” if you use the protected trademark to identify your own business.  Each of these legal standards can be subjective, which is why it’s best to just avoid unauthorized uses.

Even if the content you use is not protected by trademark, you could still be liable for a false advertising claim.  False advertising can occur when someone uses a trademark in an ad and disparages the company or product or in any other way makes the product look unfavorably, if the ad makes false or misleading statements about the owner or its product.  So be careful of product reviews or competitor comparisons.

When you use other people’s content, you risk violating terms of use and other agreements.

Every time we use a website, access a social media network, or download a digital file, we are agreeing to the terms of a contract.  It’s become so prevalent today that most people don’t even read what they are agreeing to. The terms are unique to that business and that social media network; and can vary quite a bit.   Be sure to review these terms before using content you have accessed through that digital means as impermissible use may constitute a breach of contract with the content owner.

Awareness and best practices in using other people’s content can be a valuable mechanism to minimize your legal risk. 

Start today: evaluate your current practices and take that first step to securing your success.

Are you and/or your business Florida based? If so and you need help with Content Usage Processes and Policies, we’re here for you. Contact us here.

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