Q:
I'm creating content for a members-only site accessible to
people whose employers have purchased access. I'd like to know
if I can create some "best of" lists (golf courses, spas,
restaurants) and add information to some of the listings, such as
"Best Golf Course in the State, 1998, per Golf
Digest" or "XX Magazine's Top 50
Wines." These lists are either created via my own research
(the golf list) or taken from a publication (the wine list). Must I
obtain permissions from every quoted "expert"?
A:
Whenever you "borrow" content from someone else
(including a list), you can assume it's protected by copyright
law, which protects unique expression in print, sound, graphics,
etc. Some things you can borrow; others you can't. Two elements
are key: how much you borrow and how you use it.
There's a concept in copyright law called "fair
use," by which you can use a small portion of a work without
seeking the creator's permission. But beware if you copy
something for commercial use—it's less likely to be
"fair." Generally, if you copy a crucial portion of text,
you'll get to copy less of it.
Content Continues Below
Your content will be lists of "best picks" in several
categories. Obviously, lists are composed of data. No one can
copyright raw data or basic facts. What makes something
copyrightable is the arrangement of that data—a use that
makes the naked facts unique. A "best of" list could be
such a personalization.
For example: Aimee is a hairstylist with 20 years'
experience and lots of famous clients. Aimee decides she's
tired of highlighting and serving as an informal divorce court and
becomes a consultant. Her Web site contains "Aimee's Top
10 Hair Sites," for which she had to sift through and evaluate
95 hair sites. Aimee's judgment (based on her experience) and
opinions are what her Top 10 list is built on, so it's unique
and copyrightable. It started out as raw data and ended up as a
personal guide.
What does this mean to you? If you quote directly and credit the
source, you're probably OK. If you don't want to attribute
your picks to someone else, you'll have to re-format the raw
data gleaned from other sources so it's your own product, not a
version of someone else's.
Sometimes getting permission isn't as tough as you think.
The originator may want the exposure of wider publication, properly
credited. But knowing who holds the copyright and respecting their
rights is important. It's spawned an entire group of people who
arrange content licensing or copyright assignments to prevent
infringement disputes. If you decide you need a substantial portion
of someone's copyrighted text, you can license it for a
fee.
So some lists can be yours, but avoid wholesale
"borrowing" of copyrighted material. Data is everywhere;
mold it into your own special product.
For more on copyrighting, visit the U.S. Copyright Office's
Web site at www.loc.gov/copyright or the Copyright Clearance
Center's site at www.copyright.com.
Joan E. Lisante is an attorney and freelance writer who lives
in the Washington, DC, area. She writes consumer-related legal
features for The Washington Post, the Plain Dealer,
the Spokane Spokesman-Review and the Toledo Blade
(Ohio). She is also a contributing editor to LawStreet.com and
ConsumerAffairs.com.
In her practice, Lisante is counsel to ConsumerAffairs.com and
was counsel for Zapnews, a fax-based customized news service for
radio stations. Previously, she served as Assistant District
Attorney in Queens County, New York, and Deputy District Attorney
in Nassau County, New York.
The opinions expressed in this column are those
of the author, not of Entrepreneur.com. All answers are intended to
be general in nature, without regard to specific geographical areas
or circumstances, and should only be relied upon after consulting
an appropriate expert, such as an attorney or
accountant.