By: Tamara Rice
While most amateur bloggers make their fair share of internet and blogosphere faux pas before they learn the ropes, professionals can’t really afford to make too many mistakes — especially when it comes to copyright infringement and libel.
When I was a newbie blogger, I naively thought any photo on the internet that did not state its copyright status was fair game. I quickly learned the copyright ropes (and the importance of embedding photos rather than linking to them) when a “borrowed” photo on my personal blog was replaced with the words: “This photo was shamelessly stolen and used without permission.” I was mortified, but — fortunately — not sued.
If copyright infringement or libel occurs, a blogger might not always be lucky enough to get off with a warning. In addition to legal complications, copyright infringment has the potential to kill your Google AdSense account. What’s more, while being sued for libel might get you a lot of attention, it might also destroy your bank account.
So, to keep you informed, we offer up a handy guide to the libel and copyright standards of the internet in the US. These statements are based on commonly upheld interpretations of the law here in the United States, but should not be confused with the laws themselves, which you can read here.
POSTING PHOTOS, IMAGES and WORKS of ART
Images, photos, etc., not expressly declared as “creative commons” should never be used without permission of the owner. Once upon a time something had to contain a copyright notice to be considered personal property, but not anymore. Private ownership is now to be assumed unless otherwise stated. No, simply linking to the original or crediting the owner is not enough and may not save you in a court of law if the owner decides to go after you. Regardless of the purposes of your use, you need permission from the owner, unless their permission is already stated or the item is identified as creative commons. If you are altering a copyright protected image without permission, see our notes about derivative works of art.
Exception: Posting a book cover image, DVD cover image, software cover image, etc., in connection with a review of the product itself is an accepted practice and considered fair use if the image is already in circulation on the net. (Translation: Don’t post a leaked cover from a still-unreleased product. To be safe, get permission for anything that is not yet released.) If you link the photo to a site where the item can be bought, rest assured, no one is likely to bother you about their rights–even if your review was negative–because free advertising is the name of the game in this particular arena. (This does not always apply to using quotes or clips from movies, books, etc., so keep reading.)
EMBEDDING or LINKING to VIDEOS
Embedding a YouTube video (or any other video clip) could get you into trouble if you do not have permission from the owner of the rights — i.e., the distributor or the person who uploaded the video. Just as you would with an image, if you are embedding a video, you need permission. In addition, as anyone who frequents YouTube knows, sometimes videos on that site are here today, gone tomorrow — or gone the moment someone brings it to YouTube’s attention that a user has illegally posted copyrighted footage. If you have embedded a video into your blog that was illegally put on YouTube, it could be argued that you took part in the copyright infringement, even if you didn’t realize it at the time and even if the person who uploaded it gave you permission. Embedding isn’t a bad idea, just get permission and be confident that what you are embedding is not going to be later identified as copyrighted material. Use your head. When in doubt, just link and don’t embed.
Merely linking to a YouTube video — or a video on another site — is highly unlikely to cause a legal issue. You do not need permission to simply link to something, and even if you link to something that is later declared copyright infringement and pulled, simply linking (and not embedding) isn’t going to cause problems for you. This is the perfect alternative to embedding, if you have any doubts about your right (or YouTube’s right) to host the footage in question.
PUBLISHING DERIVATIVE WORKS of ART on the INTERNET
Utilizing someone else’s creative property without permission is only considered fair use in clear cases of parody. That’s right, any creative use that is not mockery or parody is, technically, copyright infringement, and — even in cases of parody — it would not be advisable to earn money off of such works without a lawyer in tow. Many in Hollywood consider derivative works such as fan fiction to be beneficial to the popularity of the original, but not everyone agrees. Book publishers, for example, are much less inclined to see derivative works as flattery and free advertising and may be just a tad more likely to sue. Consider this discussion of the legalities of Lord of the Rings fan fiction, for example. Also, altering any trademark, photo or work of art is also considered infringement if the intent for parody is not abundantly clear.
REVIEWS and PERSONAL CRITICISM on the INTERNET
Reviewing and critiquing someone else’s actions or works of art is protected by laws of free speech and freedom of expression, except when defamation is involved. In other words, you can talk about how much you don’t like Bill Gates and Apple on your tech blog all you want, as long as what you say is factual, clearly your opinion, or clearly an attempt at humor that no one would take as fact. (Also, don’t publish anything that could get you accused of inciting violence.) If you make statements about someone else (or their products) that aren’t true, you might end up in court.
QUOTING SOMEONE ELSE’S WORK on the INTERNET
You can quote ALMOST anyone and anything for any purpose as long as you give proper attribution and your use of the quote does not damage the work’s commercial value. The key to this area of copyright infringement is not word counts, but the concept of damaging commercial value. Even if I quote an entire page from the book Twilight on my blog, Stephenie Meyer and her publisher are unlikely to care. However, if I quote a page that gives away a the climax of the book, making someone who sees the quote unlikely to buy the book — since I’ve given away the ending — I have potentially damaged the commercial value of the work.
POSTING SCREENSHOTS on the INTERNET
Posting unaltered screenshots of software, websites, computer/video games, etc., is generally considered fair use (with proper attribution), as long as it does not damage the commercial value of the product. The use of screenshots for purposes of review, instruction, training, etc., with no financial gain on your part, is generally acceptable if you are not damaging the commercial value of the product. It may be wise to seek permission, but not necessary. Screenshots for such purposes are widely regarded as fair use.
Posting altered screenshots of software, websites, computer/video games, etc., falls under the category of derivative works. Making changes to a screenshot before you post it can put you into the gray area of derivative works. Merely pointing to areas of the screenshot with arrows isn’t going to amount to much, but any radical changes to the screenshot that could misrepresent the actual content of the game, software, etc., aren’t advisable unless an intent for humor/parody is clear.
If your freelance writing career involves publishing on the internet, protect yourself and know the laws. I’m not a lawyer, but my unofficial recommendation is a careful look at the Digital Millenium Copyright Act (DMCA). When in doubt, don’t take my word for it – be safe! Seek the advice of a copyright lawyer directly.
I’d also recommend studying the legal ramifications of the following important phrases: