Addressing the Common Legal Issues of Podcasting

Addressing the Common Legal Issues of Podcasting

As of April 2018, there are 525,000 active podcast shows that have produced more than 18.5 million episodes. Approximately 44 percent of people in the US have listened to a podcast and the loyalty rate is high. These features turn podcasting into a lucrative business activity that can be monetized in a number of ways.

If you’re looking forward to launching a podcast business, however, you may be concerned about the legal issues. There are several legal specifics you’ll need to take care of in the beginning. Let’s get started with the most important ones.

Podcast Copyright

The aim of the copyright is to protect original work from being replicated, utilized and monetized by someone else. Creating a podcast that is original and engaging is a very tough process. This is why you’ll definitely want to make sure your work is protected.

A copyright notice included on all of your work is one of the simplest ways to protect your intellectual property. A written licensing agreement is an even better idea.

On the other hand, you have to make sure that you’re not committing a violation through podcast creation. Can you, for example, use somebody else’s music as a background, an intro or an outro? If you use music and sounds that are non-royalty free, you will be committing copyright infringement. The only exception is fair use and it isn’t going to apply to all musical pieces.

If you plan to start a podcast business, talk to an experienced copyright attorney. This way, you can protect your intellectual property and you can also make sure that you’re not committing a serious violation when putting your podcasts together.

Legal Issues to Address before You Start Monetizing

Even if you’re podcasting as a hobby, you will still need to address a number of legal issues.

Mentioning a sponsor or having affiliate links means that you’re monetizing the podcast, which takes it out of the hobby realm. You will be subjected to taxation and business licensing requirements. Address these before you begin making podcasts, especially if you intend to grow the scope of such activities in the future.

Forming a corporation or a limited liability company (LLC) is a good idea because you’ll get various types of protections this way. This is especially true for individuals who own assets and are worried about liability.

Through the formation of a separate entity, your personal assets will be considered a separate entity. These personal assets will not be exposed to liability in the event of issues arising from your podcasting activities.

Avoiding Publicity Rights Infringement

The final issue we’re going to discuss is publicity rights infringement. Such a violation can occur whenever you have a guest on the podcast.

The right of publicity varies from state to state and it allows individuals to control the commercial use of their name, image or persona. This means that whenever a guest appears on your podcast, you will need to get their permission to broadcast the finalized audio.

Getting potential guests to sign a written release in advance is going to be of paramount importance. Such a document shouldn’t just be downloaded from a random website. Rather, talk to an experienced legal professional and get a document that’s tailored for your needs. This way, the release will contain all of the essential information you need to be legally protected when interacting with and featuring third parties on your podcast.

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Four Steps for Copyrighting Your Blog or Website Content

Copyright infringement is common in the online realm. Just like a patent, a website or a blog is a part of your intellectual property. Thus, you should undertake the necessary steps to protect all of your content.

You may be wondering how to copyright a blog and what blog copyright laws will apply. The following guide will give you a step by step explanation of everything you will have to go through in order to prevent intellectual property theft.

Understanding Digital Copyright

Copyright is a term that describes the legal rights of intellectual property owners. In essence, these regulations state that the person holding the intellectual property rights is the only one allowed to copy or reproduce the respective work.

Copyright is defined clearly by US law and it applies to digital products like websites and blogs. Based on the US Copyright Act, the owner of the intellectual property is the sole entity given the right to:

Reproduce content
Create derivative works from the original content
Distribute copies of the work
Display the work publicly

If other entities are interested in such rights, they are obliged to contact the intellectual property owner who may grant or refuse the permission. The exclusive copyright acts can be transferred to others, and the procedure itself will typically be described in the Copyright section of a website or a blog.

Always Have a Copyright Notice

When wondering how to copyright blog content, you should always start with a clear and customized copyright notice. The aim of the copyright notice is to explain what kinds of content use are allowed and which ones are prohibited.

Just like other legal sections of the website, the copyright notice cannot be copy-pasted from another source or based on a generic template. Your provisions should focus on the types of content available on the specific website and the uses stemming from the respective format.

Move on to the Creative Commons License

The next concept you will need to acquaint yourself with is the creative commons license.

The creative commons license aims at listing the specific uses permissible and the procedure that should be utilized for the transfer of the exclusive copyright to occur. Creative Commons provides free licenses that have pretty much become the standard in the field of blog and website copyright protection.

Apply for Copyright with the US Copyright Office

You can apply with the US Copyright Office in order to benefit from additional protections.

For this purpose, go to the website of the US Copyright Office and find the copyright registration form. There’s also an online filing process that may be simpler to go through. The filing fee will also be reduced when you go the web-based route.

You will have to provide information about yourself, the title of the website or blog, the date of publication, and the pages you wish to copyright. Blogs and websites are typically copyrighted as literary works, unless they’re more visual.

Upon the completion of the process, you will be asked to pay the registration fee. Next, you’ll have to wait. Depending on the specifics of the copyright application, you may be contacted by an official representative for additional clarification.

These are some of the things you can do to legally protect your online intellectual property. A couple of additional steps can also be beneficial. Some of the things to do include watermarking your images, setting Google alerts for content similar to yours (in order to check for plagiarism) and using CopyScape to check whether some of your most prominent content has been copied without your permission.

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GDPR: 10 Steps That Will Help Guide You Through The New E.U. Data Protection Framework

The new European data protection law, the General Data Protection Regulation ( GDPR ) comes into force on the 25th of May, 2018. The new framework poses considerable pressure on online and offline businesses of all sizes because it will strengthen the rules under which the personal data of European residents can be collected, stored, and disclosed. Despite its territorial scope, the GDPR will apply to organizations that do not have a physical presence in the European Union.

To guide you through the new E.U. data protection framework, we’ve provided you with a 10-step guideline that will allow you to better understand the formal requirements of the GDPR and the new personal data security standards.

1. Scope of the GDPR

Although the GDPR is a European legislation, it may apply to businesses located in other jurisdictions as well. More specifically, the GDPR applies to natural and legal persons that collect personal data and:

Are established in the E.U.;
Are not established in the E.U. but cooperate with data processors that are established in the E.U.; or
Are not established in the E.U. but collect personal data of E.U. residents or target them (e.g., offer them goods and services or monitor their behavior).
The GDPR will not be applicable if you are a natural person who accesses personal data in the course of a purely personal or household activity (e.g., browsing social media websites).

2. Tracking personal data

The GDPR defines personal data as any information that allows you to identify a natural person. For instance, personal data may include personal names, physical addresses, email addresses, social security numbers, location data, genetic information, biometric data, health care data, and IP addresses.

The GDPR requires applying the principle of data minimization, meaning that you can collect and process only the amount of personal data that is required to provide the requested service.

In order to keep track of all of the personal data that you collect, store, access, share, and process online and offline, it is important to document such transactions for your own records. Also, in certain cases (e.g., if you employ more than 250 persons, collect personal data regularly, or target special categories of personal data) you may be obliged to maintain data processing records.

It is important to note that the GDPR imposes stricter requirements (e.g., obtaining explicit consent) for special categories of personal data, such as a person’s racial or ethnic origin, political, religious, and philosophical opinions, trade union membership, genetic data, biometric data, healthcare data, and data concerning a natural person’s sex life or sexual orientation.

3. Collaboration with third parties

Under the GDPR, all third parties that have access to personal data collected by you, such as cloud storage providers, hosting providers, and newsletter providers, are considered to be data processors. The law stipulates that the relationship between you and data processors should be governed by data processing agreements, which should reflect (1) the types of personal data you provide access to, (2) the purposes of processing, (3) the duration of processing, (4) the applicable security measures, and (5) the mutual assistance in fulfilling your obligations under the GDPR.

If the third parties are located outside the EEA, you can disclose or transfer personal data only if certain conditions are met, including, but not limited to:

If the third party is established in the country that is “white-listed” by the E.U.;
If you conclude a contract with the third party on the basis of pre-approved contractual clauses or binding corporate rules;
If the data subject provides you with explicit consent to the disclosure or transfer of personal data; or
If the transfer is explicitly necessary for conclusion or performance of a contract.

4. Consent

Consent for the collection and processing of personal data is one of the legal grounds for lawful data processing under the GDPR. To be valid, the consent should be prior, explicit, informed, and freely given (pre-ticked boxes are not allowed). The deviation from obtaining consent is permitted if the personal data is necessary for performing a contract with the data subject (e.g., booking an appointment, providing the requested service, or delivering a product), pursuing legitimate business interests, and in some other exceptional circumstances.

5. Data protection and storage

Under the GDPR, personal data can be retained only as long as its storage is necessary for the purpose for which the personal data was collected. Afterwards, the personal data should be deleted. Only in certain cases, when the storage of personal data is required by the applicable law (e.g., for accountancy purposes), businesses are allowed to retain personal data in order to comply with their legal obligations.

To protect personal data, appropriate organizational and technical security measures have to be taken (e.g., limited access to personal data by employees, anonymization, secured networks, and encryption) and you have to ensure that the data processors with whom you cooperate have also put equivalent security measures in place.

6. Data subjects’ rights

The GDPR provides data subjects with a number of rights with regard to their personal data. Indicate in your privacy policy those rights, and give instructions on how data subjects can exercise them. Such rights include:

The right to access personal data (e.g., getting a list of personal data you store about the data subject);
The right to correct personal data (e.g., change of contact details);
The right to erase personal data and object to profiling (i.e., “right to be forgotten”);
The right to restrict the processing of personal data;
The right to ask a data controller to provide another data controller with a list of personal data related to the data subject; and]
The right to launch a complaint about the handling of personal data.

7. Identification and transparency

Give your privacy policy the highest level of transparency. List clearly the types of personal data you collect, the purposes of collection, the grounds for processing, third parties that have access to personal data, and all your policies and procedures governing collection, storage, and the processing of personal data.

Also, indicate your contact details clearly in your privacy policy, including the email and post addresses that can be used by data subjects to contact you with regard to personal data. Also, mention the timeframe in which you will respond to the data subject’s inquiries.

8. Children

The GDPR prohibits the collection and processing of children’s personal data without obtaining a parental or guardian consent in advance. In order to comply with this requirement, consider putting systems in place to verify individuals’ ages and to obtain the requested consent. Also, provide parents or guardians with the opportunity to request the erasure of children’s personal data that has been obtained without their consent.

9. Data breaches

The GDPR puts in place strict guidelines for reporting security breaches that affect personal data. In a nutshell, you have to inform the supervisory authority within 72 hours from the moment you become aware of a breach, and then provide details about the affected personal data. Should a data breach occur in data processors’ systems, the data processors have to immediately notify you. Make sure that you have the right procedures in place to detect, report, and investigate a data breach.

10. Data Protection Officer (DPO)

You can voluntarily appoint a DPO as a person who will assist you in complying with the GDPR, as well as tracking and documenting the transactions involving personal data within your organization. The GDPR explicitly requires appointing a DPO if:

Your business relies mainly on processing of personal data on a large scale;
You process special categories of personal data on a large scale.
The processing of personal data may cause a threat to rights and freedoms of data subjects; or
You are a public body or authority.

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All About Intellectual Property: The Differences Between Copyrights, Trademarks, Patents, and Trade Secrets

In the age of current technology, inventions, and ideas, protection for intellectual property has become quite common in our society. The four types of intellectual property- copyrights, trademarks, patents, and trade secrets– are often heard in everyday conversation. But how do we differentiate between these four protections? This blog is to act as a guide in explaining the basics of intellectual property.

Copyrights:

Copyright protection is available for original works of authorship that are fixed in a tangible form, whether published or unpublished. The categories of work that can be protected include paintings, literary works, live performances, photographs, movies, and software. It is important to understand that copyright law covers the “form of material expression,” and not the actual concepts, ideas, techniques, or facts in a particular work, hence why it must be in tangible form.

Trademarks:

Trademark protection is available for certain names, symbols, devices, or words that will be used in connection with a good or service. The purpose behind trademarks is to allow companies and individuals to indicate the source of their goods or services and to distinguish them from others in the industry. A trademark not only gives the owner the exclusive right to use the mark but also allows the owner to prevent others from using a similar mark that may be confusing to the general public. It does not, however, prevent others from making or selling the same good or service.

Patents:

A patent is a right granted to an inventor that permits that inventor to exclude others from making, selling, or using his or her invention for a period of time. For an invention to qualify for a patent, it must be both “novel” and “non-obvious.” An invention is novel if it is different from other similar inventions in one or more of its parts. It also must not have been publicly used, sold, or patented by another inventor within a year of the date that the patent application is filed. As for the second qualification, an invention is non-obvious if someone who is skilled in the relevant field of the invention would consider its development to be unexpected or surprising.

Trade Secrets:

Trade secrets consist of information, including formulas, patterns, compilations, programs, devices, methods, techniques, or processes. To meet the definition of a trade secret, the information must be used in business, and grant the user an opportunity to obtain an economic advantage over competitors who do not know of it or use it. This protection is fairly limited, as a trade secret holder is only protected from unauthorized disclosure and use. If a trade secret holder fails to maintain secrecy or if the information is independently discovered, becomes released, or otherwise becomes generally known, protection as a trade secret is lost. However, trade secrets do not expire, so protection continues until discovery or loss.

If you have additional questions, or if you are looking to protect your ideas, products, or business, you should contact an experienced intellectual property attorney.

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Legal Checklist For An Online Startup

Forming a new business is an exciting adventure. However, the dream of self-created success and wealth can sometimes cause new business owners to overlook the essentials of creating a new business. These overlooks can potentially cause serious harm down the road. This legal checklist, while not exhaustive, is meant to help new business owners ensure that they maintain compliance and protect themselves from any mishaps.

1. Find A Business Structure That Best Fits Your Needs:

Prior to forming your new business, you should first work with a legal professional to determine which business structure would work best to fit the needs of you and your company. Some of the more common structures include LLCs or C corporations.

2. Protect Yourself and Your Intellectual Property:

Work with a legal professional to determine if you should file for a copyright, trademark, patent, or any other form of intellectual property. Such protections will work to ensure that your idea cannot be stolen by another. This is of particular importance for online startup companies, as the business is exposed to innumerable others.

3. Money Management:

Once you have settled on a business structure, work with your professional to determine what your tax obligations are. It could be a bad start for your startup if the IRS begins to focus on you for improperly filing taxes.

You will also want to create a separate bank account for your company money. This should be kept completely separate from all personal accounts and funds. Co-mingling personal and business funds could cause serious issues down the road.

4. Take Care of the Technicalities:

Online startups have an additional responsibility to maintain compliance with internet standards, while protecting the company at the same time. This will require the new business owner to work with his or her legal professional to draft privacy policies, disclaimers, and terms of service. It is also very important that you adhere to those policies that are put into place.

New business owners will also need to work with their professional to incorporate all necessary licensures. Many jurisdictions impose severe fines if companies fail to maintain required licenses.

5. Create Strong Contracts:

There are three main types of contracts that new businesses should work with a professional to implement. The first of these contracts is a Non-Disclosure Agreement. These agreements work to protect confidential information from being released to the public. Not all businesses require non-disclosures, but they are highly important for those that do.

The second type of required contract is an employee contract (if you have anyone working for you). Employee contracts should outline the rights and responsibilities of those working, as well as the appropriate and expected conduct.

Finally, business owners should work with a professional to draft a Buy-Sell Agreement. Such agreements detail what would happen in the event of an owner or founder choosing to leave or dying. Specifically, these agreements details how much money should be paid out and what would happen to that person’s stake in the company.

While the above list is not exhaustive, it’s a good start for online startups to utilize in order to create a successful business. It should be noted that the critical point in all of the above-listed points is that startups should always work with a legal professional to ensure compliance.

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What Is DMCA And Does It Apply To My Business?

What Is DMCA And Does It Apply To My Business?

If you are more or less aware of digital trends and developments, you have probably heard about the war that Taylor Swift declared on YouTube. This is one of the most prominent examples of a DMCA claim and its consequences.

To get a better idea of how DMCA applies to your business, it’s important to take a look at the definition and the current DMCA laws.

What is the DMCA: A Quick Overview

DMCA stands for Digital Millennium Copyright Act. Enacted by Congress in 1998, the act was one of the biggest modifications to the US Copyright Act. Such changes were needed to protect intellectual property (copyright) in the face of new interactions stemming from the use of internet-based communication channels.

Having a DMCA policy on one’s website is a really good idea. Very often, it’s not featured individually but rather included in the website’s terms and conditions. (See here for questions about Website Terms and Conditions) The clause outlines how the company will respond to take-down notices for the removal of copyrighted material from the website.

Standard DMCA policies provide information about what a copyright infringement is, how a claim can be filed in the case of a DMCA violation, and what information a claim should include.

Protecting Your Own Copyrighted Work:

When looking at what a DMCA is, it’s also important to point out that it protects your intellectual property against copyright infringement. If you discover that somebody has been using your content without permission, you can file a DMCA claim. A DMCA notice needs to be filled out correctly in order to be valid. DMCA law suggests that the notice should feature the following elements:

The physical or electronic signature of the copyright holder
Identification of the copyrighted work and the infringement that has occurred, as well as the place where the copyrighted work has been published (a website, YouTube video, social media post, etc.)
The contact information of the copyright holder
A statement on behalf of the copyright holder that explains the respective use has not been authorized
A signed statement that the information included in the DMCA claim is accurate

The Importance of Ensuring DMCA Compliance:

Due to the fact that more and more online platforms allow for user-generated content to be uploaded, DMCA claims are proliferating. A part of the DMCA policy is to offer the platform protection against claims that result from content uploaded by a third party.

Take-down letters can still be sent to website owners for the purpose of removing the copyrighted material. The online platform, however, is exempted from liability whenever there’s no knowledge or intentional abuse that the material was copyrighted by someone else.

Both copyright owners and web service providers can find it difficult to navigate the DMCA clauses. In such instances, a consultation with an experienced legal professional will be of paramount importance. Through a legal consultation, both copyright protection and DMCA exemptions will be explained and understood much better.

If you don’t know how to address copyright issues or how to craft a DMCA clause for your website, get in touch with a lawyer that specializes in intellectual property. A single consultation will be sufficient to answer your most pressing questions.

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What Are Website Terms and How Do They Protect Your Business?

While most people will skim through terms and conditions (at best!), having such a page on your website is of utmost importance.

The specifics depend on the website niche, the types of information, and the functionalities that the website gives access to. Legally speaking, terms and conditions are rules by which website visitors have to abide in order to access the respective content or service.

Website Terms and Conditions: A Brief Overview:

So many website owners do not put a lot of thought into crafting the terms and conditions page. In fact, they opt for a generic template – a serious mistake. The respective page is important because it can limit your liability in case a visitor or a customer may be considering taking you to court. Its purpose is to also protect the content and suggest permissible uses. Whenever a legal issue occurs, a court will examine the content of the terms and conditions page to determine its comprehensiveness.

The content of the document will vary from one website to another. Some of the most common topics that website terms and conditions may cover include:

Content copyright information, a definition of misuse
A disclaimer of liability
A use clause
Privacy policy
Governing law under which the usage terms and conditions are crafted
A statement about accountability for online actions and behavior
Payment details (for memberships, services, in the case of an ecommerce website)
Opt-out policy

Reasons Why a Website Needs to Have a Terms and Conditions Page:

The biggest question here is whether website terms and conditions are enforceable. The answer is that it depends on the circumstances. A court will examine situations on an individual basis, which is why having detailed terms of service is always a smart thing.

The page is, in essence, an agreement. It establishes the rules that website visitors must follow when interacting with the respective online platform. When the rules are clearly outlined, abusive behavior can be sanctioned. Such abusive behavior could consist of spamming, posting racist content, copying content from the website, etc. On the basis of these rules, a website administrator can terminate accounts without prior notice. When a website visitor fails to follow the established protocol, the termination clause of the usage agreement can be invoked.

A Website Terms And Conditions Are Crucial For Limiting Liability:

A disclaimer typically states that the website owner cannot be held accountable for errors, outdated information, information published by website visitors, and readers taking information out of context to use it for a specific purpose.

To accomplish these goals, you cannot rely on generic terms and conditions, or on a text that is copied from another website (unfortunately, a common approach that many website owners adopt).

In order to experience the full range of protection, you need a page that is entirely crafted for the needs of your business and the purposes of your website. Working with a terms and conditions specialist attorney can give you peace of mind and the knowledge that all of the essentials have been covered.

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Best Practices For Your Company’s Social Media

Facebook, Twitter, Instagram, Snapchat, LinkedIn, Pinterest, the list goes on and on and on. The reality is that the vast majority of Americans spend a considerable amount of time online, so much so that the average consumer is constantly bombarded by information.

For a business, standing out in social media requires some skill, a little luck, and implementing the industry’s best practices. Below are some recommendations for optimizing your online presence, building trust with your audience, and ultimately converting clicks into profit.

Respond promptly:

Customers have expectations for quick responses, especially when it comes to complaints. Negative feedback must be addressed, especially in a public setting. Acknowledge the hurt feelings, tell the customer how much she is valued, and offer a solution. Then try to take it to a private message as quickly as possible and resolve it there. Be genuine and sincere. And whatever the feedback, always try to respond back to it, even if it is as simple as saying “thank you.”

Blessed are the brief:

The scarcest resource of our time is “time.” Twitter’s popularity lies in its brevity and 140-character limit. People no longer have the luxury (or the patience) of reading a long article. Consumers want brief, to-the-point, striking content. Pictures and engaging, snappy captions are best. Ideas for longer posts don’t belong in a Facebook status update. Keep them for a blog on the company’s website.

Maintain engagement:

When creating social media posts, give people something to talk about. Today’s social media user is looking to be a part of the conversation. We all want to feel included. Ask questions and post content consumers are interested in, related to the business. For example, a donut shop might post a poll asking customers about their favorite donut flavor. Or an accounting firm can upload a screenshot from a scary movie and write below, “Don’t be afraid this tax season. Come visit us at Acme CPA.” Engagement can be about news, the company’s industry, photos, info-graphics, promotions or questions. The options are endless.

Call-to-action:

Regularly posting on social media and engaging with customers on social media is a great place to start. But to really see success, companies should be providing users with information on the right action to take, based on your post. That could be as simple as asking them to share, retweet, or comment. Or maybe ask that they try a featured product, or directing them to the company website. Whatever it is, be sure include a call-to-action on social media posts. Let consumers use their network to expand the organic reach of social media. Give them a reason to mention the company brand and refer others to the business.

Respect intellectual property rights:

From a practical perspective, organizations should be mindful and vigilant that content being posted does not accidentally infringe on another person’s intellectual property rights. This could expose even the smallest mom-and-pop store to legal liability. Nevertheless, copyright laws allow for the “fair use” of copyrighted material without securing the owner’s permission. This type of exception allows anyone to use the copyrighted material of another for use such as criticism, comment, news reporting, teaching, scholarship, or research. However, the first factor used to determine whether the use of another’s copyright falls under this exception is whether the use is for commercial vs. non-profit educational purposes. Accordingly, businesses should be careful relying on the protection of fair use when using another’s copyright.

Automation:

Running a social media program can be incredibly time-consuming, but one way to save time is to automate parts of the process. Even small businesses and start-ups can pre-schedule social-media message and posts and re-share content at optimal times. There are several free and inexpensive programs available.

Behind-the-scenes insights build connection:

A great benefit of social media is that it allows the audience to get real-time access as to what it’s like to be a part of the company. This type of intimacy helps boost loyalty, which is turn, boosts sales. Consider posting about office dress up days, major milestones, job postings, events, and fun, goofy comments made around the water cooler.

Consistency is key:

Finally, social media is a social endeavor in and of itself. A company’s team should be involved in the conversations, but publicly it should speak with one voice. Limit the number of people with access to the social media platforms. And anytime someone with access leaves, immediately change the passwords. Because while it’s great to give life to a brand on social media, once something is posted, it can never be truly deleted.

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How to Protect Your Online Intellectual Property?

How to Protect Your Online Intellectual Property?

Does this scenario sound familiar – you’re browsing Facebook and you suddenly see a video that you made for your website, but it’s published by somebody else who claims that they created it? Copyright infringement in the digital realm is an incredibly common occurrence, and most content creators have had some experience with it.

There’s still a common belief that if something has been published online, it’s free to copy and use. This is not the case. If you’re wondering how to copyright website content, the following guide will acquaint you with the essentials.

Website Copyright and Intellectual Property Laws

To protect website content, you’ll first have to understand whether there are legal provisions for creators like you.

Copyright protection arises as soon as a creator finishes working on the respective work. There doesn’t have to be a copyright symbol for intellectual property laws to become enforceable. These laws also apply to all content types in the digital realm – from blog posts and complicated infographics, to interactive multimedia and pictures.

It’s illegal for somebody to just take your content and publish it on another website.

The same applies to non-digital content published online. If you write a book and decide to upload a PDF to your website, the book will be protected.

One of the most important laws offering protection to digital content is the Digital Millennium Copyright Act (DMCA). According to this law, all materials published online are protected by US copyright law.

How to Copyright Blog Content and Other Digital Materials

Whether you need to protect website content or copyright images online, the procedure to follow will be one and the same.

While content creators do benefit from automatic copyright protection, a copyright notice that also highlights fair use practices should be drafted. For best results, you may want to have a website footer appearing on every single page. The footer should state the year and the fact that all rights are reserved.

Pursuing Copyright Infringement

Knowing whether your content has been stolen is not an easy task. Often, infringement will be difficult to identify.

Using Google Analytics to determine what your most popular content is, you can perform occasional checks. Tools like Copyscape make it possible to paste the text and see whether it appears on websites other than yours.

In such instances, you will have to submit a DMCA takedown request. Such a notice will typically be made available via a hosting service provider. You can also submit a Google DMCA take down request.

While this is happening, take screenshots and collect evidence. On occasions, it may be impossible to get assistance from the hosting company, or it may be located in another country where other jurisdictions will apply.

In such instances, you may have to take legal action against the entity that has stolen your content.

Pursuing legal action should be a last-resort option because this process may be lengthy and cumbersome. Usually, copyright infringements will be resolved before it gets to that point. If you contact the respective website owner or manager, chances are that they’ll take down the stolen content sooner or later.

If you want to start a lawsuit, make sure that the damages will outweigh the cost of the legal proceedings. Consulting with an experienced attorney may shed more light on the specifics, and help you decide which path to choose.

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What Is Copyright Fair Use?

Copyright laws protect individuals from having their work replicated and further distributed without their consent. In the U.S., a copyright is a legal entitlement that grants exclusive rights to the maker of an original work—such as a literary work or a piece of computer software.

When an individual decides to replicate or distribute a work despite its copyright, it is called copyright infringement. Copyright infringement is undoubtedly against the law. However, there are some instances where a portion of an original work can legally be utilized without the permission of the owner. This is called fair use.

Why doesn’t fair use violate copyright mandates? For a use to be considered “fair”, the original work must be transformed into something novel. This idea is called a transformative purpose.

The Four Factors that Determine Fair Use:

There is not a mechanical definition that renders a use “fair” or “unfair”. However, Section 107 of the Copyright Act proposes four factors that should be considered when evaluating a question of fair use:

Purpose and Character: Is the work being used for commercial or for-profit means? Or is it being used for non-commercial or educational purposes? The latter variety is more likely to be considered fair.
Nature of the Original Work: Was the work being used as a piece of creative expression, or more so technical-factual? A more creative work (like a song or short story) is less likely to support a claim of a fair use.
Amount: How much of the original work is being used? If the use includes a large portion of the copyrighted work, fair use is less likely to be found (although there are exceptions, such as parody, where large pieces of the original are used with no repercussions).
Effect On Market: What were the consequences (for the original) of the supposedly fair use? To what extent, if any, did the unlicensed use affect the existing or future market for the owner’s original work?

This is the framework invoked when deciding the fairness of a use. You’ll notice that these four factors are rather ambiguous. This was likely done intentionally so that instances of fair use could be determined on a case-to-case basis.

Here are a few common examples of original material that is legally reused via the principles of fair use:

News Reporting
Research
Parody
Criticism
Commentary
Scholarship

Be advised, however, that it’s nearly impossible to determine when a use is actually fair use, and it’s best to not skirt on that side of the law.

The Bottom Line:

Copyright laws protect the owners of original material. However, there are ways to utilize copyrighted works legally without permission. This is referred to as fair use, and usually involves the transformation of the original into something new and different. When courts review the fairness of a use, they consider the purpose of the use, the nature of the work being used, the amount of material used, and the effect of the use. When in doubt, contacting the owner of the original is always the best way to go. If the owner is unavailable, consult a legal professional with experience in intellectual property or internet law.

It’s wise to discuss the legality of your planned use before using an original work. Consulting an experienced attorney may save you legal trouble and statutory infringement penalties in the long-run.