A bit of code. A few paragraphs of copy. A song or a couple of photos. They may be easy to cut and paste for use on your website, e-mail marketing campaign or other business collateral, but helping yourself can be a big mistake.
"Nearly everything you may find is protected in some manner by copyright law," says Jerrold Neeff, intellectual property attorney at The Bostonian Law Group in Boston and an adjunct professor of intellectual property law at Boston University.
The most common type of business copyright violations occur in the construction and publication of websites, he says. Knowingly or not, business owners frequently use code, characters, photographs, music and other IP-protected works illegally.
Copyright law affords two types of protections: common law and statutory. Common law applies to ideas or concepts that have been translated to a medium such as text or illustration. When a creator applies for and receives statutory copyright protection through the U.S. Copyright Office and is issued a copyright registration, more stringent protections apply.
Protect YourselfUse these tools to ensure that copy on your site isn't someone else's--and to guard your intellectual property:
Copyscape: It lets you enter a line or two from your copy and find out whether that copy appears on other websites. It can help you avoid inadvertent plagiarism and also find out whether others are swiping your content.
Friendly Music: You pay a small fee to license songs for use in videos, on websites and in other multimedia platforms so that you don't risk infringing on a recording artist's copyright.
SwitchBlade: It makes unauthorized downloading of images from your site more difficult. Images cannot be saved to hard drives or other devices. --G.M.
"There are tremendous risks a small business can face by failing to abide by copyright law," Neeff says. Creators who have registered their works and who have had their copyright violated may be entitled to as much as $150,000 in damages per infringement of the work, plus attorney's fees.
In some cases, the fair use doctrine applies--typically in usages such as criticism, comment, news reporting, teaching or research, Neeff says. Courts consider each fair use instance by applying a four-factor test that explores:
- The purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes. If it's commercial, it's probably not fair use.
- The nature of the copyrighted work. What was used, and how?
- The amount used in relation to the copyrighted work as a whole. The more that is used, the less likely it is to fall under fair use guidelines.
- The effect of the use on the potential market for or value of the work. If the use negatively affected the creator of the work, it probably isn't fair use.
Do not attempt to determine fair use on your own, Neeff warns. "The test itself, in application, is one that should properly be referred to your legal counsel," he says.
Or you may be able to license the work for a fee and use it on your site for a particular period of time. Always get the licensing agreement in writing, Neeff says, and abide by the time limits imposed.