LOVE LAW FIRM discusses copyright law and fair use issues for NYS small businesses

In the modern era of digital-based marketing, essentially all small and medium businesses (SMBs) are individual publishers. Online platforms have provided sophisticated users enhanced influence that rivals the major national newspapers and TV stations of the past. However, the dramatically increased accessibility to and expanded scope of marketing initiatives carries with it a similarly elevated level of responsibility. Amidst the fallout of the COVID-19 pandemic and resultant lockdowns, internet usage has spiked due to the majority of the population being restricted to their homes. This growing trend makes it even more essential for SMB owners to understand that if they Tweet, Snap or otherwise post digital content, they have an inherent duty to ensure that none of the material is protected by copyright in order to avoid hefty penalties and undesired negative publicity.

Have you ever contemplated posting another individual’s content to one of your SMB social or digital streams? The temptation is understandable, which makes it important to have a solid grasp of applicable copyright law to avoid running into any regulatory or legal issues. Here is an overview to help you distinguish fact from fiction as you grow and scale your SMB marketing efforts.

Copyright & Fair Use Basics

Copyright is one subcategory of intellectual property (IP) protection, intended to protect individuals who created, owns or holds an exclusive right to use a given work product as their own if said content exists in a tangible format. Once that work is put down on paper or converted to a form of digital/electronic content it is protected by copyright for a certain length of time.

The U.S. Copyright Act of 1970 was promulgated to safeguard creative works being used sans permission. Unfortunately, despite this federal statute, which makes it illegal to copy, publish, transmit, exhibit, distribute, modify, display or otherwise use (for financial gain or not) the original creative works of others, both intentional and inadvertent copyright infringement occurs on a more frequent basis than you may think.

Understanding Copyright Infringement

Copyright infringement occurs when an individual uses someone else’s original creative content that is protected by copyright without first obtaining their permission to do so. Copyright infringement comes in many forms. The following are some infringement examples that could land your SMB in hot water:

  • Featuring a video on your SMB website that contains copyrighted phrases or songs
  • Posting copyrighted images on your SMB website or social media channels
  • Slightly modifying an image and then posting it on your SMB website/social media
  • Selling merchandise that features copyrighted phrases or images
  • Copying literary or artistic content without an exclusive license or written agreement

Avoiding Copyright Infringement

Although this is certainly not an exhaustive list, here is some practical advice to assist you in avoiding copyright infringement and the resultant negative financial and legal repercussions.

  • Comprehend the Scope of Copyright Statutes 

SMB owners often incorrectly confuse copyright regulations with trademarks, patents and licenses. While all of these fall under the general umbrella of IP, copyrights are arguably the simplest to both get and run afoul of—either on purpose or accidentally. Having a solid grasp of the U.S. Copyright Act of 1970 and the pertinent provisions of the Berne Convention is a good starting point in proactively mitigating copyright infringement risk.

  • Avoid Using Other’s Content (Without Permission)

​​​​​​​We all probably remember our mom telling us: “If it doesn’t belong to you, don’t touch it.” The same concept applies to copyright protections—the general rule of thumb is to first obtain the express written permission from the individual that owns, created or holds the copyright material before using it in any context. Be sure to follow this approach even if there is no visible copyright symbol featured on/with content—it could very well still be protected.

  • Beware of Internet Content 

It is best to assume that any content you view or read online is protected by copyright as these works are inherently created by another individual. Copying, reproducing, displaying or otherwise holding out another individual or entity’s work product (e.g., images, musical recordings, articles or any other form of content that you yourself did not personally produce) as your own is a surefire way to land on the wrong side of a copyright infringement lawsuit—even if you do so with no intention of profiting from it.

Reporting Copyright Infringement

While private and governmental entities receive and file copyright registrations, these organizations do not typically address claims of copyright infringement. If you are the creator, owner or holder of copyrighted work(s), you are the one that is responsible for enforcing your rights to prevent any form of infringement by third parties.

The most basic and commonly utilized approach to block copyright infringement is sending the party using your copyrighted material without permission a Copyright Infringement Notice or Notice of Claimed Infringement. This written warning clearly describes the copyrighted content, the alleged unlicensed use, and notifies the recipient that legal action will be taken if they do not immediately cease. Additionally, the notice can also seek reimbursement for the past unauthorized usage of the copyrighted material.

If the offending party does not adhere to the requests set out in the Copyright Infringement Notice, SMB copyright owners have the option of filing a civil suit against them. In order to be successful in court, you will need to offer proof that your copyright precedes any usage of the content by the offender. SMB owners can generally ask the court to issue an order to the offender to immediately case using the protected content and seek monetary damages for any provable financial loss incurred directly associated with the unlicensed use.

Understanding the “Fair Use” Rule

The concept of fair use can be ambiguous and understandably overwhelming in its application. The first thing to understand that the fair use defense is decided on a case-by-case basis. Courts apply a set of factors in determining whether a specific usage of copyrighted material is permissible under the fair use doctrine. As such, there is a significant degree of ‘grey area’ in which SMB owners need to be cautious when using otherwise protected content under the fair use exception.

Fair use is a judicially-created doctrine developed in the 19th century that was later codified via Section 107 of the 1976 U.S. Copyright Act, which states that the usage of copyrighted work is not a copyright infringement if used for one of the following purposes:

  • Criticism
  • Comment
  • News Reporting
  • Teaching
  • Scholarship
  • Research

The Copyright Act goes on to specify that there are certain factors that courts will take into account when determining whether a given fair use defense is credible, which are:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
  • The effect of the use upon the potential market for or value of the copyrighted work

Question to Ask About Copyright Infringement

To assist you as an SMB owner in applying the fair use rule to your marketing efforts, ask yourself the following questions to determine if you are at risk for copyright infringement:

  • Am I Creating New Content or Merely Copying?

The intended use and character of the content is the single most influential aspect in determining if the use is fair per the Copyright Act. Be mindful if you are just copying verbatim from someone else’s work or using it as inspiration to create something that is uniquely your own.

  • Is the Original Producer a Competitor?

​​​​​​​Without first obtaining their consent, you generally cannot use another individual’s protected works in a manner that potentially has a negative impact on the market for their material.

  • Exactly How Much Copyright Material Am I Using? 

The more copyrighted work you extract or repurpose from the original source, the less likely that a court will rule in your favor when it comes to the fair use exemption. As a general rule of thumb, avoid quoting more than a few successive paragraphs from a published work, taking more than a single chart or diagram or including an illustration/image from a publication without getting the author’s permission first.

Potential Copyright Infringement Penalties

The civil and criminal penalties associated with copyright infringement claims can be severe. Accordingly, it is a worthwhile investment of your time and energy to be aware of the potential forms of copyright protections and adopt responsible business practices to prevent any potential infringement. Failure to do so could result in the following negative consequences:

  • Copyright infringement damages and actual profits lost as a direct result of the infringement
  • Civil penalties of up to $150,000 per instance of work, in the case of intentional or willful infringement (such as counterfeiting)
  • Statutory damages between $750 and $30,000 per item of work infringed upon
  • Criminal penalties of up to $250,000 in fines per offense and up to five years in jail

How We Can Help

Still have questions related to copyrighted material? Need to register or protect your creative works? The broad topic of intellectual property can be nuanced and confusing for even the most experienced business owners. The good news is that you do not have to navigate this complex area of the law on your own. Contact us today to learn more about how we can assist you in addressing all of your business’ legal needs!

Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM PLLC which dedicates its practice to serving entrepreneurs, start-ups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Francine E. Love
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Founder and Managing Attorney at Love Law Firm, PLLC which dedicates its practice to New York business law