Copyright Law: 12 Dos and Don’ts
As the blogging phenomenon expands, copyright concerns become quite important. Technology makes it really easy to copy, modify and share information, whether we talk about text, images, audio or video. The problem is that the vast majority of people do not have a clear understanding of the Copyright Law, which might result in illegal and costly mistakes. Below you will find 12 Do’s and Dont’s that will clarify what you can and what you can not do as an online publisher:
1. Do use material under public domain: you are free to use any work that is in public domain. This includes federal government documents, materials produced before 1923 and materials produced before 1977 without a copyright notice.
2. Do quote something you find interesting: the Copyright Act defines that short quotations for the purpose of criticism, commentary or news reporting are considered “fair use”. Notice that the quote should involve only a small portion of the work, and it should not replicate the “heart” of the material.
3. Do use facts and ideas: Copyright Law protects the expression of facts and ideas. That is the form, combination and structure of documents and not the facts themselves. You are free to use facts and ideas reported on articles or websites.
4. Do use other materials that are not subject to copyright: apart from facts and ideas there are many other classes of materials that can not be protected under the Copyright Law. Those materials include names, familiar symbols, listings of ingredients or contents, short phrases, titles, slogans and procedures (notice that some of those materials might be protected by trademark, though).
5. Do use a company name or logo if you are talking about it: trademarks should protect a company from people trying to use its name or logo to deceive customers. If you are criticizing or analyzing a company, however, you can use its name or logo under a “nominative fair use”.
6. Do use a company name on your domain: as mentioned on the previous item you can use a company’s name as long as you are not trying to deceive people that you speak on behalf of this company or that you are related to it in any way. This right applies to domain names. Someone could create a website to complain about a company, say Microsoft, and use a domain name that contains the name of this company, say microsoftsucks.com.
7. Don’t assume that if you credit the author there is no copyright infringement: a lot of people wrongly think that if they credit the author of an article or image they are not violating the copyright law. You can only use copyrighted material if you have explicit permission from the author to do so (or if you make fair use of it, as explained before).
8. Don’t copy material just because it does not show a copyright message: the Copyright Law required a copyright notice to protect works until 1977. In 1978, however, the law changed and abolished the requirement for copyright notice. This means that every published work (be it on paper or digital media) automatically gets copyright protection, whether expressed with a notice or not.
9. Don’t equate Creative Commons with “free for grab”: while Creative Commons licenses are less restrictive then standard copyright they should not be interpreted a “free for grab”. In order to understand what you can or can not do with Creative Commons material you should check what kind of license it is using. Certain licenses will require you to credit the original author, while others will require that you release any modifications of the document under the same license.
10. Don’t copy material just because you are not making a commercial use: while making commercial use of copyrighted material might make it easier for the author to claim damages against you the commercial use per se is not a requirement for copyright infringement. Even if you are not making a commercial use of the material you are still infringing the law if you do not have a permission from the author.
11. Don’t assume that if you remove the copyrighted material you will be out of trouble: a lot of people copy images and text around the Internet thinking that in the worst of the cases they will receive a take down notice from the author and remove the material from the website. The removal of the copyrighted material will not remove the copyright infringement at all. Should the author decide to go after you in count you will be in trouble all the same.
12. Don’t copy material just because you can’t find a copyright holder: the fact that a copyright holder can not be identified does not imply that the material can be freely copied. Similarly if you locate the copyright holder, email him asking permission and receive no answer back you would still be infringing the law if you use the material.
This article was not written by a lawyer and it does not intend to constitute legal advice.
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183 Responses to “Copyright Law: 12 Dos and Don’ts”
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Daniel M. Clark
Copyright and trademark laws regarding online situations are a very gray area right now because it’s been so few years since the explosion of the internet and especially the explosion of blogs (which many would like to see fall under the same regulations as the Press). The Do’s and Don’t’s are a good guideline, but there is very, very little black and white.
@Marc, yes, thumbnails for the purpose of commentary are generally under nominative fair use. Full size images generally do not – again, a very gray area.
@Badguy, the only people that think that copyright and trademark laws should be abolished are those that don’t try to make a living and pay the bills with their creativity and hard work. The laws may not be perfect, but they are necessary to ensure that artists and creators get the recognition and compensation they deserve. Anyone that doesn’t want those protections are free to release into the Public Domain. Win-win for everyone.
@Daniel, thanks for the list.
This is a good post. I have seen blatant copyright violations in the blog world that just make me shudder. People seem to think that if it’s on the internet, it’s automatically public domain and that’s just totally false. I had a woman take a photo from my blog and post it on hers. When I requested that she take it down, she complained that if she had to ask permission every time she used an image, she’d never get anything done. Well — get a camera and make your own images! That’s how I get mine! Aaaack! I’m starting to rant! Anyway, thanks for your post that will help to educate at least a few.
Thanks for this, it’s a nice, succinct look at this issue and like all bloggers I’m concerned and certainly try to respect people’s copyrights and do the right thing.
Something I don’t see specifically covered, but I’d be interested in another opinion on:
I read that if you use an image in direct relation to something you’re writing (for example you are writing about a Nokia phone and you find an image of the phone on the Nokia site to illustrate your post) that this would be considered nominative fair use.
Does anyone know if this is correct?
It’s something that pretty much every blogger does at some stage.
I think Daniel and the other people, including myself, were trying to talk about the law itself. Since people get into trouble because of the law, we were not talking about the ethics of using or not using copyright material, even though you bring up an excellent point with an interesting example that we all need to consider. The law itself needs to be kept in mind in some countries, specially the US, to make sure one does not get into trouble even if their intentions were innocent/honest.
Does that make sense? Also, could you please explain a little bit more about using the “orphaned works” please? It sounds very interesting. 🙂
Do attempt to explore the moral issues at hand rather than blindly assuming the law is correct â€” which only applies in one country.
There are good arguments for the unauthorized use of orphaned works, for example
Perhaps a 13th?
DON’T: Assume your copywrite laws apply in other countries.
Jennifer, when you copy an image from another site and post it on your website you are violating copyright unless you have permission from the author. Product sites usually do not care if people take their images as long as they are for commenting purpose and there is a reference link. That said if you do not have permission you are still making a copyright infringement.
Regarding the second question, I also think this would be copyright infringement, because the magazine has the right to exclude the republication of its material even in order media, including on the Internet.
I agree that the Copyright Law is too strict sometimes, and it somewhat old to apply to new media like blogs, wikis and the Internet in general. As mentioned the law will probably need to get revised to that it does not become a hinder for creativity and innovation.
I’m from China,thanks for your great tips 🙂
Thank you for posting this. Maybe someone out there can help – I’ve been trying to find an answer to this questions. Many bloggers “borrow” images from product sites in order to talk about the product. For example, craft bloggers post images of new knitting or sewing patterns from the craft company web sites in order to comment on them. This is not legal, is it? I review patterns and want to show readers a photo of the finished example item that usually accompanies most knitting and sewing patterns. Some of these patterns are in books or magazines, so I can’t link to web pages that might show the finished item. Is it legal for me to whip out my camera, lay the magazine open on the floor, take a picture of the page with the finished item on it, then post that photo to my web site?
In the end it all comes down to common sense
Since no copyright notice must accompany copyrighted material, and no physical proof of ownership is required, what are consumers to use to prove the legality of copyrighted material in their posession?
The advice that I’ve seen states that you must have paid for the material for it to be legal – or at least recorded a transaction in which it was transferred to you by someone else, who can then be checked for legal ownership. However, that advice assumes that the copyright holder never, ever gave the work away without a record of the gift and that a consumer with legal right never, ever sold the (digital) media without keeping a transaction.
If either of the two assumptions is false, which it surely must be, than there would seem to be plenty of opportunity for consumers to have a legal right to any given copyrighted material without any way of proving it.
Now, this does not cover the duplication of copyrighted material, since unless you can prove you are the copyright holder, it is assumed that you do not have the right (except as fair use provides). But merely posessing copyrighted material doesn’t seem to ever be able to be considered a crime.
One issue I’ve always had with this whole thing: Copyright is inherently about the right to profit from a given work, by restricting duplication rights. Copyright holders speak frequently about ‘lost sales’ to consumers who found the material for free instead. Yet, there exists no proof that those consumers would have paid for the material if they had not found it for free. However, there is another type of transaction that *does* establish proof that the consumer would have paid for the material, but equally translates to ‘lost sales’ for the copyright holder: Used copyrighted material. Books, music, games, artwork, many kinds of copyrighted works are often sold for only slightly below the new cost by retailers, with none of that money going to the copyright holder. Yet, had that used item not been available, there is a very good chance that the consumer would have paid full price for a new copy, as they clearly were willing to buy it in the first place!
So, how can copyright holders possibly claim that they are losing sales when they continue to disregard *other businesses* profiting from their works? The current copyright climate in the United States is appalling!
Good advice, I didn’t know about Rule #2 you listed. Good information to have, thanks.
Johnny, yeah on point 8 and most of the other points apply to the US Copyright Law, although most western countries follow very similar standards since there are international conventions like the Berne one. But there is still a big need for international harmonization, I agree 100%.
cadmiun, regarding discussion boards it depends on the terms of membership that you must agree prior to posting articles. Blogs can adopt the same method as Andy outlined, but I also think that we need some new laws to cover all that innovative media and platforms that are emerging lately!
I have a comments policy on my blog
You retail rights to your comments
I retain rights to publish your comments on that blog or any other
I do not claim rights to use any comment for marketing purposes without express permission (such as testimonials)
I retain the right to modify/moderate comments as I see fit
Plus a hole load of other things – it is very site specific
When you make a post or an essay on a blog/discussion board who owns the copy. To sign up to Huffington Post I think you agree that your writings become the property of the Huffingtonpost. Is that usually the case — in general who has ownership of the words posted on discussion boards?
One of the major complications of copyright law is that there is no single international law, and much of what you can and can’t do depends on where you live (for the digital world, it also matters where your ISP is based, or where whomever hosts your web site is).
But, with reference to number 8 ( … This means that every published work (be it on paper or digital media) automatically gets copyright protection, whether expressed with a notice or not. …) you most definitely are referring to US residents (or web hosts, etc) only.
For the most part, elsewhere in the world, copyright has always been automatic and did not require registration as it did in the US, which is I think the changes in US law you mention actually refers to [IANAL, yadda yadda yadda].
Having said that the copyright symbol or the full word “copyright” has always been required on protected work. Although failing to properly mark a protected work does not negate copyright protection, it does mitigate damages for infringement.
Mark: Your wife could listen to the CD if you let her borrow it. You have full possession of the single copy you purchased and can transfer that possession to anyone you choose (through sale or bailment – borrowing) as long as you don’t make more copies.
If you ripped the CD to mp3s, you couldn’t have the CD in your car while the mp3s were on your wife’s computer. That’s illegal copying which is what COPYright is all about – exclusive rights to copy.
Bes Z: On your point 12, your big disclaimer has no legal effect except to make it apparent to your site’s visitors you’re likely violating the law. You can’t use copyrighted work without permission, so you’re taking a gamble when you copy something not knowing if it’s protected or not. Assume it is.
Number 6 is not as clear cut. In an ideal world, Trademark law would exist because we recognise that it is useful for Consumers to be able to identify a company and know it is the same one they/others have had good experience with. So the test for trademark infringement is whether consumers are misled.
However, trademarks are also the subject of considerable investment by companies. And in the US that means trademark law has expanded to cover Dilution of trademarks through tarnishment, blurring or alteration. Though this area of trademark law is not without controversery – a look at the decision in Deere & Co. v. MTD Prods will show you that abusing a trademark is not always permissable.
Jason, the wording should be materials “published” prior to 1923, that is correct.
Points 5 and 6 do refer to trademark law, but because sometimes copyright and trademark get mixed together. For instance, a name or a slogan can not be protects under copyright law. If I just mentioned that part people would think that in all the cases it would OK to reproduce names or slogans, but that is not true due to trademark, that is why I mentioned it.
Thanks for commenting though, the objetive of the article was simply to share the research that I did to myself regarding copyright, as long as it helps people I think its valid.
Thanks for this, with all the barrage of what “not” to do, it seems that there is precious little out there helping people understand what they are allowed “to” do.
I would love to see additional information about what happens when there are conflicts, such as when a site says “all rights restricted” but posts a list of ingredients, or you want to quote from it.
I would also love to see a set of “do’s” for simple users. What am I allowed to do when I buy something like a CD. I was told by a lawyer that my wife was not legally allowed to listen to a cd that I purchased
Thanks for this article Daniel. It really helps when dealing with information that is so easily available all over the web.
If you do not mind I am going to comment on each point please:
1 : This is where most of the people get confused, I think. People think that books are copyrighted, but blogs and online diaries are not. Public Domain for anything since 1977, as you mentioned, is something that specifically says that the content falls under public domain.
2 : Good point. News reporters quote things all the time, and people can too. Online, unless a site specifically says not to quote anything, you can. Thus, it is usually a good habit to read disclosures on sites to find out more.
3 : Hmmm, interesting point. What if it was a research I did? For example, if I did a survey like the Vizu survey you talked about recently and did not want people to quote the facts in any manner [the numbers and stuff], am I allowed to do that?
4 : Good point too. An interesting point to this exception, like how you mentioned trademark, could be “Apple.”
5 : That is good to know. Mentioning straight facts or things you think are facts helps others understand what you are talking about, instead of people assuming “Wow, he/she is again talking about stuff without giving examples.”
6 : Excellent tip I would say. As long as people are shown clearly that a domain name is not associated with a certain company, they can use it. Of course using domain names negatively to criticize are only usually setup to defame a certain company, but if one wants to criticize, I wonder if having a domain name that goes along with the message helps too.
7 : Heh, I love this point. This is what the Bitacle and other leechers did recently, using RSS feeds completely, showing ads on their own pages and then saying they credit the authors. Their reasoning? RSS feeds are up for grabs, so they can do whatever they want with it.
8 : Good point. Every published work is automatically copyrighted. A work is not copyrighted when it explicitly says so, or when it falls under public domain as mentioned in the first point in this list.
9 : Good point. We need to understand what different licenses mean in detail before using content with such licenses.
10 : This is one of the biggest misconceptions I see regularly. I have noticed this a lot from people on MySpace who link to many of the pictures on my site. They sometimes refuse to stop hotlinking to my site images saying they are not making any money, and thus they can link to anything they wish “legally.”
11 : Good point. Once someone considers a damage done, court may not accept “Ok ok, I am sorry I am taking it down” reason. Usually, a warning is give to take down copyrighted material within a certain number of days. After that, someone starts full legal action.
12 : Good point. Maybe one can include a message somewhere, when using material if they cannot find the copyright holder, that says the following or something similar:
“This material was used as the original copyright holder could not be contacted and I/We assume this content to be available for public use under public domain. If you are the party who owns the copyright to this material, please let us know and we will gladly comply right away and remove any copyrighted material you may object to.”
Thanks again Daniel. This also goes into the cheatsheet printout. 🙂
This list isn’t useful, because it isn’t very accurate (or as you put it “straight forward”).
For example, your first point is plain wrong. Material produced before 1923 could still be protected by copyright today. If I create a work in 1922 and don’t publish it until 1967, copyright on that work would not expire until 2014. If I publish it in 1978, the copyright would not expire until at least 2048.
You have also titled this “Copyright Law: Do’s and Don’ts”, but then your point 5 and 6 deal with trademark law. Trademark is quite different from copyright.
As a lawyer, I would also disagree with the the previous poster’s comments about always seeking legal advice before re-using material. We don’t want to live in a world in which everything requires legal vetting and approval. Having said that, I would recommend that if you are going to be re-using material, assume that it is copyright protected (unless you know it’s not) and inform yourself from a reputable source as to what your rights and obligations are. A list of do’s and don’ts written by someone who doesn’t really know what he is talking about doesn’t qualify. Harsh perhaps, but true.
I would definitely add one more point – even if you do not write the blog in English, follow these rules, too. There are so many bloggers in Slovakia (where I am from) who translate the article from english blog, change 3 or 4 sentences and pretend to be blogging kings of the country. This is very common in here – and I was doing the same thing a long time ago as well…
Roberto Alamos Moreno
It’s interesting the point that says:
“Do use a company name on your domain”
because some years ago everybody knew about mikerowsoft.com, and how the owner (a teen named Mike Row) was attacked by microsoft until he had to reach a deal with them in order to never use his domain name again because it was just too similar to ‘microsoft’.
Beyound that point, I think the ‘fair use’ figure is a relly good. It allows english wikipedia to be what it is now: an enormous compendium of text and graphical material.
Unfortunately, other wikipedias (like the spanish one) don’t enjoy the privilege of ‘fair use’ and therefore they can’t put a lot of images on their articles, like the english wikipedia can. They said it’s because spanish speaking countries don’t recognize the figure of ‘fair use’, so they are only able to use pics that are effectively property of the person that upload them, or pics where the owner gave permissions to upload to wikipedia. I understand this but I have a doubt regarding this issue: since wikipedia servers are mainly located in the USA (I know some of them are located in Europe and Japan too), who cares about the lack of the ‘fair use’ figure in spanish speaking countries? Keep those files on the servers located in the US and that’s all.
the logic behind this madness is permeated with greed.
what needs to be in place, is forward thinking people
with the right stuff to make the proper changes.
so that instead of perpetually driving humans down towards poverty, we can strive for a unity, where greed has no place.
Then we can colonize space.
untill then it will continue to fester and swell.
copyright laws suck as badly as do patent laws.
everyone diss’s amway, and the pyramid scheme
calling it a rip off and a scam, well wake up good citizen, you are near the bottom of the pyramid.
Andy, you are completely right about the 2 points! I am not a lawyer, but most of those points are pretty straight forward and should help the average blogger.
Thanks for commenting!
Do seek professional legal advice
Do state you are not a lawyer if you write anything to do with the law if you are not a lawyer.
Even people who I regard as public domain experts making 7 figures consult lawyers every step of the way.
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