Editor’s Note: This piece does not constitute legal advice. Always seek the help of a legal professional.
When it comes to copyright law, you don’t know what you think you know.
I wanted to get an expert’s insights on the pitfalls that can trip up PR pros and their clients, so I spoke with Ashima Dayal, a partner with Davis & Gilbert in New York City. In a free-ranging conversation, we spoke about the mistakes that organizations can make when creating content and messages for an increasingly digital world.
Whether you are a PR veteran or client looking to develop a new content strategy, false ideas online can steer you amiss even as you try to stay on right side of copyright law.
Dayal’s big warning is for people who know they have to be careful to avoid using content without a creator’s permission—but who haven’t fully appreciated the nuances.
Dayal says those who usually get in trouble are “people who are sophisticated enough to go out and try to make sure that what they are doing is not infringing, but unfortunately they are relying on outdated—or just flat-out false—legal information that they have found online.”
What copyright law is and does
Copyright is a part of the U.S. Law code (Title 17) that defines ownership rights for original creative works set out in a tangible medium.
One of the bigger misconceptions: A work doesn’t have to be published to be off-limits. It only has to be set down in a fixed medium—saved to the author’s laptop hard drive, for example.
However, many things are not able to be copyrighted, including facts, works that consist of entirely common knowledge, methods and systems, and names or slogans. (A name and a slogan can be trademarked, but that falls under a different law.)
Can you begin to appreciate why you should consult a lawyer about these issues?
Every case is different
Dayal says no two copyright cases are alike—even when dealing with works you believe to be in the public domain (currently, items published before 1923 and works created by U.S. government employees).
“Copyright law is fun, because it is case by case; it’s not cookie-cutter,” she says. “There are certain bright lines that you can follow. Something that was published before 1923, from a copyright standpoint, is public domain.”
However, she questions how useful those properties are for modern communicators.
“That rules out a whole lot of music,” she says. “There’s not a lot of recorded music from before 1923 besides wax cylinders. It rules out most photography. It leaves you a whole lot of old masters’ paintings, but I don’t know if those are of interest to people.
“If something is the work of a U.S. federal government employee, that is also public domain,” she adds; however, she cautions against acting on generalizations.
“It has to be federal government,” she says. “State and local government employee material is not public domain.”
She explains that even if something is on a government website, that doesn’t mean you should consider it safe to use. “Sometimes people just assume it was created by the government, but you don’t know if it was created by a government employee or by a contractor,” she says.
She gives an example of the photos from Apollo 11—a hot commodity as many brand managers have scurried to mark the 50th anniversary of the moon landing.
“Most of the imagery was, in fact, shot by NASA,” she says, “but not all of it. Some of it might have been shot by IBM.”
She also warns against looking only at the date of creation to know whether something is in the public domain. According to the law, a piece must have been published before 1923 to enter public domain.
“Publication has a very, very specific definition,” she explains. “Something that was publicly performed might never have been published. Public performance doesn’t equal publication.”
The problem with ‘fair use’
However, many organizations aren’t creating content based on old masters’ paintings and the written works of 19th-century authors. So, how are today’s corporations and PR firms most likely to get in trouble?
Dayal points to people’s misunderstanding and oversimplification of “fair use” doctrine and “de minimis” doctrine.
Fair use is a defense against copyright infringement. It’s an argument that an entity can employ to say it did not violate an author’s rights. “De minimis” refers to an instance when someone argues they didn’t violate copyright because of how small a piece of the original they borrowed.
Dayal hypothesizes that a communicator is thinking about online content: “’Yeah, I right-clicked it, but I then criticized it or commented on it or used it as some kind of illustration or I made a parody of it’—parody seems to be something that people want to do more and more, create more entertaining, sticky content—and they feel that that’s a fair use.”
“Fair use is a complicated legal doctrine,” says Dayal, “and just because you take someone’s content and make it funny does not necessarily mean that you are within the scope of parody or fair use.”
One example of a common “fair use” mistake is for companies that are trying to publish news-style content.
“Let’s say you are a big telecom company’s P.R. department and you want to create editorial content about something that the president is doing, or Congress is doing, and you take content from The Wall Street Journal or some trade magazine,” says Dayal. “And you just take an excerpt of it and you talk about the story … [you] think that’s … a fair use, that that’s some kind of news reporting.
“In fact, it very often is not the case. It’s hard for nontraditional news organizations to get away with calling something news reporting.”
Dayal says the safer route is to purchase a license for reprinting or posting content, she says.
“You know if you’re a telecom company, you’re not really a media organization, and even if you are spreading information … that doesn’t mean you suddenly have a press pass, a free license to use that content.”
Much of the problem comes from where people get their ideas about copyright law. Dayal compares it to going to WebMD to diagnose your latest symptoms.
“The metrics that people use—I don’t know where they got these numbers,” she says with a laugh. “‘I only took five seconds, and five seconds is within the de minimis rule, or I only took 100 words.’ But there’s no bright-line test for that.
“There’s no test that says if you only take two paragraphs then you are clear. Sometimes the original story is only two paragraphs long. If you take two paragraphs of a two-paragraph story, you’ve taken 100% of it. That’s definitely not de minimis.”
How to know if you’re breaking the rules
Dayal acknowledges that enforcement of copyright law is a little haphazard. “There’s so much content,” she says, “but there’s only so many claims.”
That means that, practically, copyright abusers are taking a roll of the dice.
However, she warns against the thinking that if all your peers are doing something, that means it is safe for you to follow suit.
“You don’t know if they got a license,” she says. “You don’t know if they got sued. … You don’t have to get sued; you just have to get a claim. There are a lot of stops between making use of something, getting a claim, and getting sued. A lot of things have to go wrong before you get sued.
“There could be tons of stuff going on in the background that you just don’t know about. They could all have Getty licenses, and all that photo material came from Getty. You just don’t know.”
Dayal is adamant: “So the fact that one of your peers is doing it, seemingly without any license or without any claim” won’t protect you. “They may not be low-hanging fruit on the day that content ran, and you will be.”
How to avoid trouble
Dayal’s best advice for staying out of legal peril, whether you are a client looking to hire an agency or part of an internal team getting ready to launch a project: Make sure your contracts and guidelines have you covered.
“If you’re the client and you’re using an outside PR team, the first place I’d start (beyond obviously sussing out the PR team and making sure they are experienced in this space) is making sure that you are going to be protected from the actions of the PR team through inclusion of all of the necessary language in the contract with your PR team,” Dayal says.
If the work is going to be completed by internal teams, Dayal says, you want to make sure that someone has created guidelines and that the team members fully understand what they have to do.
“Sometimes you need someone who is a lawyer to review that stuff, and sometimes you … just need a team that is particularly attuned to those things.”
What to do when you’ve made a mistake
What should your organization do if you’ve shared something online that you shouldn’t have?
Dayal says a good lawyer should provide both legal and practical advice for a client seeking help when it has violated copyright laws.
Assuming you don’t have a defense, Dayal asserts that a cautious company should go ahead and take the offending material down from a website. “You should get permission to use it, or you should take it down, because you are exposing yourself to damages,” she says.
If you decide to procure a license for the material you’ve used instead of taking it down, expect to pay a higher rate.
“You’ll expect to pay more [for your license] because you don’t get to use material (and get caught) without paying more,” she says. “If everyone expected to pay the same amount for a license after a claim as they would pay if they licensed the work at the outset of their use, no one would ever bother to secure a license.”
However, those are the legal considerations. Practically, Dayal has another argument to make. She asks:
How old is the webpage where you’re posting unlicensed content? How many hits is it getting? How buried deep in the page is it? If no one has visited that page in the last eight years, you know, it may be the case that it is a really low risk of detection or it may be that having that page up is of so little utility to you, you might as well take it down.
What’s the risk of detection? What’s the potential liability? What’s the likelihood that all the copyright owner is going to want me to do is to take it down?
How difficult is it to take down? Is it something that I really wanted to be up for a long time or is it something that is tied in to Mother’s Day and, after May, I don’t need it anymore. Who’s going to object over something that I just used for two days?
However, the only truly safe option is to follow the letter of the law.
“Some clients don’t want to take any risk,” she says, “and rightly so.”
The role of the internet
Public understanding of copyright has been eroded by the internet, and although newer laws like the Digital Millennium Copyright Act have tried to address the unique issues created by infringing use of online content, there are still plenty of traps for digital content creators to fall into.
For Dayal, memes are a perfect example.
“Everyone understands that you can’t just right-click and use someone’s photograph,” she says. “I think people get that, but they think: ‘Oh, well, I’ve transformed this photo because I made a meme out of it. … I used it just the way memes look, with some text above and some text below, and I’ve taken the photo and I’ve made a funny story out of that.’”
Does that meme fall under “fair use”?
“It depends,” says Dayal. “Just because you’ve made the photo funny doesn’t always mean that you’ve engaged in some kind of fair use of that material. You can’t just take a single frame of the ‘Avengers’ and stick it on a T-shirt and say it isn’t copyright infringement because the movie is three hours and 10 minutes long. OK, yeah it’s just one frame, but that can easily be an infringement. Same when you take a photo from Avengers and make a meme out of it. That also easily can be an infringement.”
What about GIFs and iFraming? Dayal’s answer is predictably nuanced.
“Same as everything, it’s just case by case,” she says.
For GIFs, she takes the example of an image from the popular TV show “Parks and Recreation” that was shared on Twitter by Senate Majority Leader Mitch McConnell’s office.
Dear Mitch McConnell & all those representing him,
Please refrain from using my image in support of anything but your own stunning & humiliating defeat.
— Adam Scott (@mradamscott) June 26, 2019
“I would argue that that GIF is infringing,” she says. “It takes not a huge part of the TV show, but it’s something that was fairly significant in the show. So even though it is a small fraction, there is an argument to be made that it is an infringement.
“If the production company wanted to send Twitter a takedown note it could,” she says. “McConnell’s office could make an argument that the piece is used under fair use. It’s going to depend on the analysis you perform with of that use in context.”
The fair use question could in end up in front of a judge, who could award damages or not. As with everything in this area of the law, the choices you make depend on your risk tolerance.
Many companies have skirted the issue of hosting images on their sites by embedding, or “iframing” content from another host site. However, Dayal warns that this isn’t necessarily a rock-solid defense.
“In February of 2018 there was a case out of the [2nd U.S. Circuit Court of Appeals] which up-ended the rule that copyright practitioners had been relying on, which was that iframing, because it is a mere display of third-party content and not a reproduction (you are just providing a link to a page on YouTube or something), you haven’t copied the content to your own server, it’s not that different from just providing a link.”
However, the court found that iframing could be considered infringing.
Dayal says that ruling so far applies only to the states represented by the 2nd U.S. Circuit Court, including New York, Vermont and Connecticut. Additionally, the case was settled out of court, so a full ruling has yet to be made on the issue.
So, is embedding a tweet on your website OK? Dayal says that outside of New York, Vermont and Connecticut it still is, and even in New York, Vermont and Connecticut you could make the argument if you had other defenses (like fair use), but the other side will have an argument, too.