Picture Perfect: Using Non-Infringing Material for Your Website
by Samantha Peaslee
You have a wonderful website for your small business. You have regular posts, news, and points of sale. Your blog hosts creative and useful content every week. You just need that little something extra to make it pop visually. Many small businesses are tempted to reach out to your nearest search engine and search images for clever, funny, or cute enhancements to your blog.
If that small business is you, you have just stolen someone’s intellectual property.
While most businesses and individuals in the modern world have an idea of what intellectual property is, many misconceptions around the concept lead small businesses astray in their actual practices. Our goal is to help you avoid accidental thievery in this strict liability situation.
What is Intellectual Property?
Before you can know whether you are infringing intellectual property, it helps to know what intellectual property is.
The United States recognizes four different types of intellectual property: trade secrets, trade and service marks, copyrights, and patents. For the purposes of using material on your website, we focus on trademarks and copyrights.
Trademarks and service marks (collectively “trademarks”) are words, phrases, symbols, or designs that identify and distinguish the source of goods or services from one party to those of others. These commonly include company names, product names, logos, slogans, or images that identify a particular look and feel. They can be registered with a state office or with the United States Patent and Trademark Office or they can be unregistered.
Copyright is a form of protection for “original works of authorship”, such as literary works, musical works, pictorial works, and audiovisual creations. Most “creative works” fall under the umbrella of copyright. They can be registered with the United States Copyright Office or they can be unregistered.
Infringement of a trademark means the unauthorized use of a mark or confusingly similar mark in connection with goods or services that is likely to cause confusion, deception, or mistake about the source of goods or services. Infringement of a copyright is the exercising one of the exclusive rights of the copyright owner—reproduction (or copying), making derivative works, distribution the work, performing the work, or displaying the work publicly—without the permission of the copyright owner.
Most small businesses do not intentionally infringe on the trademarks or copyrights of others. Most of them understand that someone can own a copyright or trademark and understand generally what intellectual property contains. Most infringement occurs due to popular misconceptions regarding when it is or is not permitted to use someone’s intellectual property. Here are three of the most common that we have heard at Polaris:
(1) I don’t charge people to read my blog or look at my website, so it’s fair use.
This misconception is particularly dangerous because it is based on a kernel of truth. Fair use is a legal defense to infringement of copyrights (not trademarks). It allows certain type of activities to use copyrights without needing permission in advance. Courts will balance four factors in determining whether something is fair use: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in the copying work in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. With legal factors, meeting one is often not enough and meeting all is not necessary—it is a case-by-case evaluation.
The misconception regarding charging people comes from the first factor: the purpose and character of the use. If the new use is for commercial nature, it is less likely to be fair use. If it is for educational or non-profit uses, it is more likely to be fair use. However, this still has to be balanced against the other factors. For example, was the original work meant to be used for non-profit or educational purposes or was it meant to be sold or to entertain? Did you use the whole of a picture or a two-second video clip? Will your use demean the copyrighted work? Will it mean that people don’t need or want to purchase the original?
Additionally, your company’s blog is not going to be considered non-commercial. If you are writing it on behalf of your business, you are doing so to try and showcase your expertise or have people buy your products or services. This is different from a personal blog or a family chat. This must be weighed against the other factors as well.
All of this is to say that this misconception is unlikely to be an effective defense to infringement on your small business’ page.
(2) It was available online/I kept the watermark on it, so it is okay.
I am not sure how this misconception came about, but I find it particularly interesting because it is the opposite of what this means. Watermarks are on images in order to indicate their owner, not to indicate that they are free to use. Attribution is not sufficient to undo infringement.
If you would like to attribute a work, it is better to ask for permission. After all, you know where to go.
(3) I’m giving them free publicity. They should pay me.
I believe this misconception came about because you can purchase the rights to use a mark or an image on a page. However, that is not all infringement and protection is about.
For trademarks in particular, if you do not control how a mark is used and its source identification, the mark can be lost. Control over how a mark is used is often done through licensing agreements and can limit how and when a mark can be used. If an owner does not enforce its mark, it can show that it is not being used as a source identifier and the owner can lose the mark.
As a result of this, the “free publicity” aspect then becomes a liability, not a boon. So even if an owner were to not charge you to use the mark (or copyrighted item), they would still need a license agreement of some sort with you to control that use of their mark.
Safer Ways to Post Creatively
Does this mean you cannot use fun and dynamic images and names for your website and posts? No. It just means that more creative solutions are required.
(1) Stock Photo Subscription Sites
If you have to have those stock photos or are a regular content-creator, set aside part of your marketing budget for a stock photo subscription site. The subscription sites often have better rates than the “pay by photo” options and, these days, have so many options that any business should be able to find something for them.
(2) Reach out for Permission
Maybe you have this one video or image or comic that you must have. It just can’t be found on any other site. Reach out to the creator! They may just give you permission, so long as you give credit and indicate that it is used with permission. They may ask for a small fee. Either way, make sure you get permission in writing.
What if you reach out and reach out and they just never get back to you? Does this mean you tried, so you’re good? No. If you don’t get permission, look for an alternative.
(3) Make your Own!
The absolute safest way to put content online is to…wait for it…make your own! Take photos of your products (not someone else’s unless that is considered in your distributor agreement), videos, or write your own posts. You can watermark your content to make sure it doesn’t end up on someone else’s site or otherwise indicate this is your intellectual property.
If you are like yours truly and don’t have that artistic touch, consider engaging an independent contractor to create items for you. For a fee, you can hire a photographer, a videographer, a ghostwriter, or a logo artist. It is important to have an agreement with that individual, so that you are clear as to who owns the intellectual property and how you can use it if there are restrictions.
As always, if you are on the fence about your use of anything on your website or in your marketing materials, check with your attorney. If you are hesitant on how to reach out for permission or how to protect your own goods, also check with an attorney to receive individual advice.