I’ve seen lots of questions lately about when it’s okay to use someone else’s content, is linking to the original enough, can you copy a post as long as you say who wrote it and give a link to the original? Here are my thoughts on Pinterest. (Spoiler: I have artistic and legal differences with it.)
The first thing to understand is the law is way behind reality. Almost all intellectual property law is based on the idea that there is something tangible that you can own and attach ownership rights to—like a book, or a poem, or a painting.
Most information on the internet is organic: it changes quickly in both form and content, and is distributed infinitely within minutes. It can be edited over time—sometimes by the author—or with a wiki or a social network site–by the entire community.
This is not something you can cart into a courtroom as Exhibit A. Internet content changes every time someone joins a community, posts a new article, comments, makes a friend, or adds a photo or video. There is no HR Examiner or Facebook page or Twitter, especially Twitter, that you can print out or point to as being one specific thing over time.. The law can’t begin to handle that. The law is like the nuns in the Sound of Music: “How do you catch a wave and hold it down?”
Ideas Are Free, But Content Isn’t.
Next, the basic principle of intellectual property law is that you can NOT own an idea. Ideas are free. It’s only when an idea takes form through publishing or creation of a thing, like a photograph or a play, that ownership rights attach.
Those ownership rights– intellectual property, are either industrial or copyright. For a great discussion of intellectual property law, see the Manual by the World Intellectual Property Organization here. Industrial rights are generally patents and trademarks that apply to inventions, scientific discoveries and commercial use of trade names and logos. The big issue for bloggers and use on the internet is copyright.
Copyright covers every other pin-downable expression of ideas– including print, music, plays, artwork, film and recordings, and digital works such as computer programs or databases. Copyright does not cover the ideas themselves.
So I could wonder aloud: Hmmm. Wouldn’t it be a great idea for lawyers to hire sourcers to find witnesses and get background information on the people, judges and attorneys involved in a lawsuit? My wondering aloud is just an idea that I’m playing with. But now that I have written it down in this blog post, I think that I should get an equity share in your sourcing business for lawyers because the idea was mine.
Except that intellectual property does not protect the idea. All a copyright protects is the unauthorized use of your work in the form that you create it. So I don’t get an equity share in your sourcing business after all. It was an idea that you can use. It’s just that you can’t copy my blog post without my permission because I have a copyright to these words, in this particular order. (It’s a great idea though and I still want an equity share.)
You don’t need to do anything to copyright the things you write. It happens automatically by creating it and putting it out in the world. You can register your work and get additional protections. But you have the copyright just by creating the work.
Gift or License
When you give permission for someone to use or copy your work, it can either be a gift or an exchange for value.
A gift is just that—you let someone have it and use it. If you give it as a gift, you can’t take back permission. Gifts are irrevocable.
An exchange for value is usually a license. A license is when you give someone permission to use your stuff. Licenses are revocable by the person who gives it.
So if I grant an online community like Facebook or Google+ a license to use and publish my posts, I can change my mind and take it back—delete my post and member page and quit.
You can also sell different kinds of rights to your written work. So a book contract usually grants the publisher very broad rights to use and sell the story for a certain amount of time in exchange for a percentage of sales. It’s often called selling the book, but it’s really a license to sell the published versions. The author still owns those words in that order.
Or you can sell the whole thing.
Plagiarism is an idea related to copying. But plagiarism is taking someone’s words and saying they are your own. Plagiarism always involves a copyright violation—but the idea is that you stole the credit, as well as reproduced it without permission of the real author.
Fair Use Doctrine
The place that internet users and the courts are struggling with is what constitutes reproduction. Generally free use includes quoting from a work, provided the author is mentioned and the quote is not extensive (fair use doctrine). Other free use includes using a portion for news reporting, or use of the work for illustration in teaching or for educational purposes.
How much of an excerpt is fair use? No one knows.
The Fair Use Doctrine is part of the Copyright Act that sets out the factors to determine whether a use should be free, or whether the author should be compensated for the use. There are four factors that are nonexclusive guidelines to figure out if a use is Fair Use:
1. Whether the use is for commercial purpose or for educational or non-profit purposes;
2. The nature of the copyrighted work;
3. The amount and percentage of the copyrighted work that was used; and
4. The effect of the use on the potential market for or value of the copyrighted work.
For example, the courts have decided that the thumbnail photos you pull up in an image search is fair use, because it’s a smaller version and links back to the original.The courts have not really dealt with blog excerpts yet. This is sort of a weird result in dealing with print because the truth is, a thumbnail still shows the full picture. But it would be impossible to do image searches if all of the thumbnails were copyrighted. So there is another factor that gets considered which is: does it basically have to be that way to work? The case is Google v. Perfect 10.
How to Use Other People’s Work on the Internet
So where does that leave bloggers who want to talk about other posts or companies who want to publish a digital newsletter with excerpts of interesting articles. Here are my suggestions on how to properly use other people’s online content.
- Excerpting a short quote with a mention of the author and a link to her or her original post is the proper way to use another blogger’s material. If you have copied more than about 15%, you’re pushing it. Copying the whole thing is illegal and a clear copyright violation.
- Always link back to the original post. It is the proper way to give attribution of the author, and is important for blog traffic, which is what sponsors and advertisers look at in deciding whether to advertise. So if you don’t link back, you are also stealing traffic and advertising dollars.
- If you want to use the whole thing, you need to get permission. It never hurts to ask, especially if you can bring an author a new audience or wamt to say really great things about him.
- If you are using someone else’s photograph or image, it’s really hard to excerpt. So you should get permission if it is copyrighted or some copyrights are reserved. This includes Pinterest. The exception is images from catalogs or advertisements where you are essentially offering more exposure and advertisement for a company selling something. It’s still a copyright violation, but you’re actually doing them a favor, so no one is going to complain.
So when you use someone’s work on the internet, always give credit, don’t copy the whole thing, and always link to the original post. If you’re not sure, ask for permission.