How to Avoid Allegations of Copyright Infringement

Using or borrowing another creator's work runs the risk that you will be sued, per U.S. copyright law.

Whether you're an artist, writer, or website builder, you might wish to use creative content that you yourself did not create. Perhaps, for example, you want to use a song lyric or well-known cartoon character in a book you're writing, post someone's drawing online, or incorporate a photo into a collage.

All such activities run the risk that the works you seek to use or borrow is "owned" by someone else, per U.S. copyright law. This legal structure allows creators of original works to maintain exclusive control over their creations.

The worst of it is that such a person could sue you for copyright infringement if you use his or her work. What steps might you take to avoid allegations of infringement?

Asking for Permission

Perhaps you've heard the saying, "It's better to ask forgiveness than permission." Such an approach might sometimes work for people in everyday life, but it can be disastrous (and expensive) when it comes to copyright matters.

When content creators see their work being used without their knowledge, the sting of the theft often adds a layer of anger to their reaction. This anger might well lead to a lawsuit. Seeking permission from the copyright holder ahead of time can avert such a hostile reaction.

How does one gain this permission? If the copyright creator is an established artist or content producer (imagine Taylor Swift or NBC Universal), the process can require somewhat formal interactions with lawyers or representatives. The purpose is to negotiate the scope of your usage and any associated royalties that you might need to pay.

If, however, the content creator is somewhat less established—say, an up-and-coming songwriter or an amateur videographer—a simple email exchange could be enough to set the terms of the permission.

Depending on the scope of your intended use, and the sophistication and size of the copyright holder, you might wish to speak with an experienced copyright lawyer.

Citing Your Source

If you choose not to ask for permission ahead of time, one strategy to militate the copyright holder's anger is to cite your source; though it's not without legal risk.

Acknowledging the content creator's name (and business, if applicable) has a couple of potential benefits. First, it eliminates any suggestion that you are trying to "pass off" the work as your own. Second, it can create publicity for the content creator, a form of free marketing.

Consider this example. You own a store, and wish to use a landscape photograph by amateur photographer Alan Simpson. Simpson does not appear to have a photography business, but just a blog with photos taken in his spare time. If you use his photo without gaining explicit permission, you are surely violating his copyright. But by crediting the photo—perhaps with a caption, "Photograph by Alan Simpson," and a link to his blog—you might earn some good will.

Or not. This strategy is far from perfect. You would still be violating Simpson's copyright and subjecting yourself to liability. At the very least, however, you are showing some good faith through your citation. This can make it less likely that you will receive an angry call from Simpson's lawyer.

The Defense of Fair Use

Not all instances of infringement will subject you to liability. In some situations, your use of an otherwise copyright-controlled creative work is protected under the defense of "fair use." Fair use, described in 17 U.S.C. § 107 of the Copyright Act, permits you to use creative works without attribution to the content creator or explicit permission.

Under fair use rules, an infringer can argue that the usage is permissible depending on the nature of the usage. A court will normally consider four factors when evaluating whether a particular usage is fair: (1) the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

As you can probably gather, a court is more likely to find fair use where you use only a small portion of the copyrighted work (such as a portion of a photo rather than the whole photo), when your use is not-for-profit (for example, used on an informational blog rather than to sell to consumers), and when your use of the work is unlikely to affect the market for it (as with quoting a song lyric).

Fair use is most commonly invoked by journalists, writers, academics, artists, and critics who will sometimes use a portion of a copyrighted work as part of their own work—that is, to comment upon the initial work in some way.

In an ideal world, however, you would obtain written permission from the copyright holder so as to avoid even the allegation of infringement. By doing this, you won't need to worry about making a case for the fair use defense under the Copyright Act.

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