Social media and other digital platforms are playing a more and more important part of the business of traditional media companies. In the last few weeks, I’ve participated in two seminars, looking at the legal issues that arise in these areas. At the Winter Convention of the Wisconsin Broadcasters Association, I conducted a seminar outlining the legal issues that broadcasters need to consider in their digital media endeavors. The slides from that presentation are available here. We talked about many issues, some of which I write about regularly (e.g. music rights), and others that I will write about more in coming weeks, including privacy, online sponsorship attribution, user-generated content, and other issues that arise in the online world. One issue that we spent a significant amount of time discussing was copyright – including specifically concerns that can arise when stations take content found on the Internet – pictures, videos, music or other creative works – and appropriate it for their websites or other digital properties, without bothering to get permission.
Many broadcast employees, as well as many others throughout society, think that if something is on the Internet, it is there to be used by others, and no rights need to be obtained to use that material. That is incorrect, and can get users into trouble. In recent months, we have seen many lawsuits filed against broadcasters, including against some of the biggest broadcasters in the country, over improper use of photographs found on the Internet. What often happens is that someone at a station is putting together some content for a station website – say the arrival in town of some band whose music the station plays. Rather than calling the band’s management company or the concert promoter to get pictures to use in the article about the artist or the upcoming show, the station employee finds some picture on the Internet, copies it through a simple mouse click or two, and pastes it onto the station’s website. A few months later, a cease and desist letter arrives, or worse, an immediate demand is made for a significant sum of money, claiming that the use of the photo infringed on the copyright of the photographer who took the pictures. How can this be, asks the station employee? When someone posts something in the Internet, isn’t it free for anyone to use?
When I make a statement like this in any seminar, people are always quick to jump up and say – “but isn’t the Internet all about sharing?” While in some ways it is, it really is more a medium for the dissemination of content in one way or another. And just because a creator of content wants to share that content in one fashion does not mean that the content can be reused by others in a wholly different context.
And just providing attribution to the creator of the content that you want to use is not enough – nor is sharing a link to the site from which the content came. Creators put up their content in places where they can exploit it – whether it is through banner ads, video pre-rolls or other methods of monetization. If you take that content and put it on your site, without first securing permission, then you deprive the creator of the traffic that they might otherwise get to their own site.
While linking to the content is in most cases permissible, even that needs to be done carefully. If too much of the material is put on your site around the link, that may lessen the need for the viewers of your site to go to the site to which you are linking, again depriving that site of the ability to exploit their content. That is why you see many news aggregation sites, which a few years ago posted several paragraphs of material from other sites, now very often post nothing more than a headline or one sentence description of the content and a link. If you remove the need to go to the site to which you are linking, you are asking for trouble. The less of the material from the other site that you can use to explain the link, the less likely you are to have issues.
Many look at these comments and say “but what about fair use?” We recently wrote about fair use and how it arises in specific contexts, here and here. Fair use is not a cut and dried concept. Many people seem to think that there is fair use exception that allows you to use a few seconds of video or audio content (some think 5 seconds, others 10, and some up to 30) without any concerns. Or that you can use a picture, as long as it is not bigger than a particular size or resolution. These beliefs are wrong. Fair use is instead judged by a number of factors – and you only have a definite determination of whether a use is fair or not if you are sued, ask a judge to decide if the use was fair, and have the judge rule in your favor. You can make educated guesses up front as to what is a fair use and what is not, but in many cases there can be a debate.
Fair use is set out in Section 107 of the US Copyright Act (and is a concept that has not universally been adopted in other parts of the world). The Act says that you look at four factors:
- The nature of the use – including whether the use is commercial or for non-profit or educational purposes
- The nature of the copyrighted work
- The amount or substantiality of the work that is used
- The effect of the use on the potential market value of the work itself
None of these factors is alone determinative, and any can be decisive in a particular case. But, it is clear that using a work in a commercial context is more likely to get you into trouble – and using it in a commercial advertisement is really asking for trouble. By contrast, if you use a short snippet of a work in the context of commentary or criticism, you are more likely to have your use declared “fair” (e.g. you use a few seconds of a song in a review of the band’s concert in your town the night before, especially if you are talking about the way that they played the song). If you use the work for something that the creator is typically paid for (e.g. you use music for the background of a mobile app, or you use it as an recorded intro to a radio or TV program – where people are usually paid to create such works), you are more likely to have problems – even if you are an educational institution that makes that use. The factors are weighed in each instance.
So, as with so many other legal issues, nothing is easy. Be careful when you are putting content on your digital properties, as the uses may end up causing you problems if you don’t get the right permissions.