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Posted: June 06, 2012

Cut, copy, complaint

Avoiding copyright infringement on your website

Carla Sledge

Every so often, I receive calls from clients or prospective clients who have received a nasty letter accusing them of copyright infringement on their website because they used an image, design or text copied from another website without authorization of the owner.  The fact is, copying and using content that you do not own, without permission of the owner, is often grounds for a copyright infringement claim.  This remains true even if:

I didn’t know that someone owned the copyright to the picture.

Being unaware of copyright protection (an “innocent” infringer) does not legally excuse the infringement.  Copyright protects many original works and is established as soon as the work is “fixed” in any tangible medium of expression.  The copyright owner does not need to display a copyright symbol (©) or register the work in the U.S. Copyright Office to have copyright protection (although registration does offer some significant advantages).

It’s on the internet -- I thought it was okay to use.

Very few works are in the public domain and can be freely used.  Chances are that someone owns the rights to what you see on the internet.  There are instances where copyrighted works may be used (e.g. “fair use”), but these represent the exception and not the rule.  The fair use analysis is complicated and there is much misinformation on the internet about what constitutes fair use.  Don’t assume you fall into these exceptions without consulting an experienced copyright attorney or advisor.

It is just on one of our webpages, I didn’t think anyone would find it – the internet is huge!

You should assume that anything you place on your website can be found -- by search engines, software designed to scan for infringing text or images, accident or simple word of mouth.  Some images contain embedded “fingerprints” allowing for tracking and easier discovery.

It is just a picture of people shaking hands.  It isn’t original or creative.

The originality standard required for a work to be protected by copyright law is fairly low.  The more important element is creation – if someone else created the work (took the picture, wrote the code, penned the book), then copyright will likely protect the work.

I paid for a license to use it in a newspaper ad so I thought I could use it on my website too.

You may have come across websites offering “royalty free”, “rights managed” or other licenses to use a work.  Payment of the license fee entitles you to use the work subject to restrictions based on the type of media (e.g. print vs. electronic), number of uses, file size, or duration, for example.  To avoid disputes, you need to abide by the terms and scope of the license you received.

It’s just clip art, anyone can use clip art!

There are free clip art websites, but even if there is no fee, don’t assume that you can use it without any restrictions.  For instance, personal use, such as scrapbooking, may be allowed, but commercial use may not be.  Search the clip art website for terms of use.  If the terms aren’t right for you, or if the site seems questionable, look for other sources.

I own the copyright because I paid someone to make it for me.

Without a proper written agreement with the creator (or author) of the work, the creator will generally own the copyright to the work.  You may have an “implied” license to use the work as contemplated when the work was created, but you may not have the right to modify it or use it in ways you never discussed with the creator.  To avoid these unpleasant surprises, you should have a written agreement in place before the work begins which indicates that you – not the creator – are the author and owner (or assignee) of the copyright.

As tempting as it is, the consequences of freely “borrowing” from the internet can be severe, with statutory damages for copyright infringement of up to $150,000 per work in some instances.  Do your research and, if you have any questions, talk to an attorney or experienced advisor who can help you evaluate or reduce the risk.

Carla W. Sledge is a partner in the Boulder-based law firm, Hutchinson Black and Cook, LLC.  She practices in business, corporate and transactional law, trademarks and copyrights. Carla is a past co-chair of the Business Law Section and Intellectual Property Section of the Boulder County Bar Association.  Carla Sledge can be reached at 303-442-6514 or sledge@hbcboulder.com. For more information about Carla or HBC, visit www.hbcboulder.com .This article is not intended as legal advice; please consult with a qualified attorney for legal advice on your specific issue.

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