Intellectual Property Law

Guide to Fair Use for Websites

In addition to fair use, there are some common do’s and don'ts once you become a webmaster.

So you have a website and you want to make it grow. Half the battle is making sure that you are putting out the right type of content and are marketing it appropriately. The other half of the battle is ensuring that you are not using someone else’s work in a way that violates their copyright. Whether your website reviews different works of art like songs, books, or even current events or you just need photos to supplement your work, understanding how fair use for websites works will keep you in the clear as far as keeping from infringing on someone’s copyrights. In addition to fair use, there are some common do’s and don’ts once you become a webmaster. Let’s take a look at a couple of tips you should keep in mind. 

What is Fair Use? 

In a general sense, fair use is the legal term used to describe what happens when someone copies part of a copyrighted work. Fair use can only come into play when the work that is used is done so in a limited capacity meaning that only a small bit of the work is used and that it is done for a “transformative” purpose. The “transformative” purpose can be several things including purposes of commentary, criticism, or parody. When you use a piece of work in a limited and transformative manner, you generally do not need to seek permission from the person who owns the copyrights. 

Because judges and lawmakers want to respect the creative process that comes from the inspiration of another’s work, fair use is not specifically dictated through cut and dry rules and regulations. Rather, there are general guidelines that should be followed. Some of the main guidelines include: 

  • Using a small portion like a sentence or two of a written work including a news article or a novel for educational purposes.
  • Summarizing information when putting together a news report. 
  • Quoting lyrics when crafting a song review. 
  • The general consensus is that if you are reaping more personal gain from your use of the copyright than the public is, then you are likely in violation of fair use and copyright law. 

While these guidelines can seem like they are as clear as mud at times, how do you know as a website owner whether or not you are violating copyright and if you are using fair use correctly? While it’s helpful to know the nitty-gritty of fair use and copyright law, we’re going to take a look at some of the basic do’s and don’t that you should keep in mind. Let’s take a look at the main rules every website owner should know. 

Read Click Wrap Agreements  

There is a variety of shareware programs, clip art indexes, and images labeled as “copyright free” or “royalty free” online. Even if the company or program you are sourcing images from is advertising that the content is copyright free, you must always do your due diligence as you could find yourself in legal trouble if the work is actually protected. 

The way to protect yourself is by reading the Click Wrap Agreements of databases you work with. When you read the terms and agreements of common “Click to Accept” agreements, you can verify if the images you are using are actually protected and whether or not you could be held liable. Doing so is a prime example of how an ounce of prevention is worth a pound of cure. You can find yourself in a world of heartache and wallet ache if you accidentally use copyrighted work. 

Respond Accordingly To a Complaint

If you do find yourself in a situation where you have copyrighted work, then you need to remedy this immediately. Start by taking down the work from all platforms that have displayed it. If you found out the violation on your own, taking down the work should be enough to remedy the situation. 

If an entity or individual contacts you because you have copyrighted their work, then you may need to take additional action, whether it is simply offering an apology or paying the original licensing fee. Most times, after the copyrighted work is taken down, the situation is remedied. 

If your site has made money off of that copyrighted work, then the author may seek additional compensation through legal action.

Removing the copyrighted material is in accordance with the Digital Millennium Copyright Act (DMCA). This 1998 law establishes that you can avoid liability if you swiftly remove material that infringes on someone’s copyrights. 

Investigate Property Right Claims

If someone sends you a cease and desist letter regarding a copyright infringement, it’s important that you do your research as well. Start by looking at what the copyright infringement is and look up whether or not the individual claiming the infringement is the actual owner of the copyright. You can do this through the copyright office if the author has registered their copyright. 

You must also do research on your end to see who has downloaded copies of the copyrighted work (if is at all a possibility) on your website. Knowing as much as you can about who owns the copyright the claim is based on and the extent of the downloads on that copyright will allow you to move forward in the best possible manner. 

Create Your Own Material

One of the best ways to avoid infringing on someone else’s copyrights is by creating the material on your own instead. It may seem cumbersome and time consuming, but a little bit of effort in creating your own images can help you have peace of mind knowing that you are not unlawfully using someone else’s work. 

Seek Permission

Along with creating your own images to put you on your website, it’s important to always seek permission when you are in doubt. If there is an image you like, want to use, and are not sure whether it’s in the public domain, seeking permission to use it will give you coverage regardless. When you are seeking permission, make sure to get the granted permission in writing and store the letter in a safe place if the copyrights are ever called into question. 

Final Thoughts

As the digital age continues to grow, so does the chance of getting caught using someone else’s copyright, regardless of whether or not you knowingly infringed on someone’s copyrights. In addition to taking these proactive steps, it’s helpful to review the details of fair use and the Copyright Act so that you know what is expected of you under the law. 

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