Have you ever worried that you might be at risk because you are using someone else’s words or artwork to promote your business? In this month’s blog, I help you to understand more about copyright so that you can deal respectfully with other people’s creations, knowing what is allowed and what is likely to get you into trouble. I also explore some common misunderstandings about copyright and explain what kinds of consequence can arise when copyright is infringed.
What is copyright?
At its simplest, copyright is the right of a creator to decide how their creations are used and made public, and the right to be acknowledged as the creator of their work.
These rights come into existence when a work is made physical in some way – whether it is scribbled on the back of a napkin, saved to a computer, recorded on a camera, or any other form of giving the work physical form. This distinction is important as there is no copyright in ideas – only the expression of those ideas in a particular form.
In the context of a small business, your copyright works might include text (your blog posts, website & marketing copy, e-books, course material), artistic works (branded graphics, photographs, memes, logos, infographics), sound recordings (podcasts, interviews), and videos (webinars, FB lives, online presentations).
In creating these works, there are many situations where you will want or need to use other people’s copyrighted works. It is important to know how to do so without infringing their copyright.
Copyright infringement means using other people’s creative works without their permission. It is disrespectful and can result in legal action being brought against you. In this blog, I explore some of the most common ways in which copyright can be inadvertently infringed, and suggest some simple ways to avoid this.
Where does copyright come from?
In Australia, copyright laws are contained in the Copyright Act 1968 (Cth). This act makes it an offence to reproduce or communicate a copyright work to someone else, use a copyright work commercially or offer it for sale, without the copyright holder’s explicit permission. Each country has their own copyright protection laws, and they are generally very similar. Most countries are also signatories of the Berne Convention for the Protection of Literary and Artistic Works, which extends a country’s copyright protection internationally among signatory countries.
In Australia, copyright protection is automatic and there is no need to register it or even to display a copyright notice. The © copyright notice has a deterrent effect and makes it easier to prove that someone should have known a work was copyright, but copyright exists even if it is not declared. In the USA, copyright also exists automatically, but if you register your copyright you are better able to enforce it in the courts.
In most cases, the person who created the work is its owner, unless they have sold or licensed their rights to someone else. This can happen, for example, when an author enters into a publishing agreement, or a graphic designer assigns all rights in an image to their client. If someone created a work as part of their employment (not as a freelancer) their employer will generally be the copyright owner. If a work was created through a collaboration, the copyright may be owned jointly. Copyright can also be split so different people own different rights – for example, an author may give someone the right to print their work, and someone else the right to make it into an audiobook or film. Transfers and assignments of copyright happen through contracts. Since copyright lasts for many decades after the creator’s death, people can also inherit copyright.
In addition to the right to control how a work is used, copyright also includes moral rights, which mean that anyone using the work (even with permission) needs to acknowledge the creator. It is also a breach of copyright if you falsely claim to be the creator of someone else’s work, or if you change the work in any way which could harm the creator’s reputation. A creator retains these rights even if they have sold or licenced their work, but they may choose to give their consent for these rights to be waived.
A copyright breach or infringement occurs when a substantial part of a work is used without permission. To determine whether a use is substantial, the courts look at whether the breach involves an important, distinctive or essential part of the original work.
Common misunderstandings
There are a number of misunderstandings that often crop up in discussions about breach of copyright.
It is safe to use if there is no copyright notice.
Not true – copyright comes into existence automatically when the content is created. A copyright notice is useful for alerting people to your rights or establishing priority, but it is not necessary. You should always assume that content is copyright until you have clearly established that it is safe to use.
It’s ok if I am only copying a small percentage of the work.
While it is correct that a breach requires a substantial use of a work, this does not translate to a page number or wordcount. What matters is whether the part that was copied was a significant or important element of the work.
I am safe if I change the work.
Technically, this is true. There is no copyright in ideas so if you express the ideas in your own way and put your unique spin on it, that is likely to be acceptable. However, it needs to be a really extensive reworking of the material. Copying a photo in a drawing can be a breach of copyright if it is recognisable as the original. The same can be said for a piece of writing. An online plagiarism checker can be a useful tool if you are rewriting something to confirm that you have made it sufficiently your own.
I don’t need permission if I am not using it commercially.
It is particularly important to avoid copyright infringement in relation to content that you are using in your business, but copyright covers personal use of material as well. The important thing to remember is that copyright gives that creator the exclusive right to control how a work is made available to the public. This includes a work being performed or shared in any way, even if you are not making any money from that use.
If I paid for the work to be created, I own it.
There are many situations where this is not true. If you paid for a graphic designer to produce a logo or an infographic for you, if you paid a copywriter, commissioned a photograph, engaged a website designer or asked your VA to create templates for you, in most cases they will retain copyright of their creation. What you have is a licence to use that work in a particular way or for a particular purpose. The limitations around that use should be spelled out in your contract with the creator. If you don’t have a written contract, you may want to ask them in an email to specify whether they retain ownership of the copyright and what that means for your use of the work.
Copyright has to be registered before it can be relied on.
Australia has no system for registration of copyright, so even if you wanted to register it, you couldn’t! America does have a copyright registration system, but copyright still exists automatically, even in unregistered works. In America, registering your copyright in a particular piece of content gives you additional rights to access the courts and claim damages if your rights are breached.
What is safe to share?
Your own original creations are always going to be the safest content to publish and are also best suited to attracting your ideal clients. Work on developing a visual identity and voice for your business that is as unique and individual as you are. This not only makes your marketing more recognisable and effective, it removes any temptation to use other people’s content because it is so obviously not a good fit with your brand’s integrity.
If you are going to use quotes, do your research and make sure that (a) you are only using a snippet and not a substantial piece of a work, and (b) correctly attribute them by identifying the author.
If you are using other people’s images, make sure you have permission. Direct permission by the artist or creator can be obtained directly, or it may be contained in a licence, such as where you purchase images from a stock photo company. If you are relying on a licence for images you are using in your business, read that licence carefully to ensure it allows the images to be used commercially and without attribution.
What are the penalties for infringement?
Action for a breach of copyright in Australia must be commenced within 6 years of the infringement. The main remedies for copyright infringement are an injunction, damages and an account of profits.
Injunction
An injunction is a court order to stop certain behaviour or make someone do something. Injunctions are interlocutory orders. This means they may be made after litigation has started, but before the final judgment. Injunctions are often made as ex parte orders, which means one of the parties can apply for the order without the other party being present – or even knowing that the order is being made! These kinds of orders can include cease and desist orders, an order to stop displaying or selling articles to which the claim of copyright relates, delivery of infringing articles, a right to have the infringer’s premises searched and an order preventing evidence being destroyed.
Damages
An award of damages may be made if a breach of copyright is proved –on the balance of probabilities – in court. Damages are intended as compensation, to put the copyright owner back, so far as money can do so, in the position they would have enjoyed if the infringement had not occurred. That means that the court may order that any loss or expenditure that the copyright owner may have suffered as a result of the breach be repaid or made good. Damages in a copyright claim often extend to the amount the copyright owner could have made from selling the material themselves. The court also has a discretion to award exemplary damages if the infringement has been done with flagrant lack of respect for the creator’s rights.
Account of Profits
Even if the copyright owner has not suffered any loss or damage, they may be entitled to claim an account of profits if the infringer has unfairly benefited from their use of the copyright material. So for example, if the person breaching the copyright has sold the material, they may have to pay back any money they made on the sale. The copyright owner has to choose whether to request damages or an account of profits – you can’t argue for both.
How I can help
I hope this has helped to expand your understanding of copyright and how it could potentially affect the creation of content in your business. If you have a particular issue that is worrying you, or if you would like to explore this issue in more depth, you might like to book in for an Intellectual Property Strategy Session.
