Reusing Others Content Legally | Fair Use and Permission

Hi, I'm Brittany Ratelle, attorney for online business owners, and I'm here to help you get legally legit. I'm here to be your guide to make sure that we can own our business in every sense of the word, including doing the not so sexy parts like legal. And today we're going to be talking about how we can make sure we are using and reusing others' content in a legal way and make sure that we are qualifying for fair use or that we're getting the right permission so that we can move around as a creator, as a creative. And a modern citizen of the digital economy in a way that is not going to get us in trouble with anyone, including platforms, other actors, other creators, and most of all, that we can feel good about ourselves and the integrity and value we're bringing to our own content creation and brand. So let's get into it. As with all of my content online, while I am an attorney, I'm not your attorney. And what kind of attorney would I be without a little disclaimer? Remember that all the information that I share here on all my channels is for information purposes only. It's not official legal advice because I don't know your specific fact scenario about your business. If you have any questions about today or any of my other resources, make sure you reach out to a competent attorney in your jurisdiction. Okay. Now that we're through with that, let's dig into it. So today we're going to be talking about getting brand legit. And this is part of my foundational series that I have on here about how to get yourself legally legit and protected as a modern online business owner. We've talked about contracts and LLCs and S-corps and alphabet soup and about intellectual property in general. So make sure if you haven't watched my previous video, make sure you tune into that where I talk and break down what are the types of intellectual property tools and how should you be using and leveraging those to make sure that you are capturing and protecting all the value in your business. We're gonna be building on that today by talking about copyright specifically, and in the realm of what is exactly fair use and what am I allowed to repost and do I have to get permission and How do I navigate all of these issues? Because on one hand, some people say everything's a remix. The copyright is dead. We live in a digital world. Everything's up for grabs. And that's not exactly true. And on the other hand, we have people who say you can't use anything without permission, that by posting something on Instagram or on TikTok, you're giving up all your rights to it. And that's not exactly true either. So let's cut both of these myths and find that nice middle ground, that safe ground. Of managing our risk of having information so that we can make empowered and informed decisions about how we want to build out our content and our brand to serve people. First question that I get: what is the public domain? And this is a great question, and I can understand why there's a lot of confusion about this. So let's start with the basics. The public domain is really defined by copyright act, and there was a copyright act that came out in the 1970s. And needless to say, there's a bunch of qualifications on whether something is in the public domain, meaning it no longer has any copyright protection and it's free to use. But the quick answer is that anything that's published before 1928 is in the public domain. Okay. And that's the year of recording. I'm recording this in February of 2023. So next year we can bump that up and it'll be anything published before 1929. So every year this will keep moving. And there's actually a really handy-dandy chart that's put out the Logic Tree. By Cornell University, and we're going to link to it in the show notes. But if you're ever confused of, wait, is this work that I'm interested in using in the public domain? I want you to look at that chart and that will be able to answer, especially once you go after 1928, because there are some specific rules that jump around based on when it was published, because the Copyright Act has changed over time, especially because it's had lobbying by different players on terms of how long you get to own the copyright on your work. So you want to make sure. That you're getting that and that you are not relying on the public domain exception when you don't actually have it. The next thing I want to clarify is a lot of people think that anything that's on Google image search or is Creative Commons or anything just literally found on the internet is part of the public domain. And that is not right. We want to bust that myth right here. The public domain is a very specific doctrine in copyright law that says these are works that were created so long ago that their author or the person who created it doesn't get to control it anymore and means it's up for anyone's use. And that's great. You can use it and so can other people. Okay. It definitely means that you can't lock down or copyright itself, but you can use these works. And a lot of this we find are great works of literature and art and music that were produced so long ago that now they're available for anyone to use them. Okay. And again, we're talking about the original works. A recording of that work could still be owned. And have some rights in the copyright holder to whoever made the recording of that work. So don't think that just because if you find a classical music recording, you could do anything you want with it. Again, we're talking about the actual work, not a recording or performance or another version that someone memorialized of that actual work. So make sure that if you are looking for things to be using, don't be duped that anything you find on a Google image search is available. Make sure you're going to reputable sources. If you're looking for other works, if you didn't create it, then you need to make sure you have the permission to use it or that something is truly royalty-free. And this from, again, a sort of reputable source. I've seen clients of mine get burned before because they thought they were using a stock image or something that was royalty-free and it maybe fell off the truck off an internet somewhere and they got burned by it because the original copyright holder, who's usually the photographer, uploaded as part of the database. And AI is getting better and better at combing the internet and these bots are looking for uses of this image. And if they find it on your website, even in like a blog roll, and a lot of this has happened from clients from years ago, anyway, they can shake you down for a lot of money because it is, it's copyright infringement. You were using that image and you didn't have a license. You didn't have permission to use it. Make sure those things don't rise up and hit you in the bud. Be careful about your royalty-free or any licenses. If you're using Creative Commons, which I think it's great that we have the Creative Commons system, but make sure you understand what license that you're using. And that you're following the rules, meaning if you need to give credit, you need to give attribution, you're following those rules, and whether you can use it for commercial use or not. Because like it or not, if you're watching this, you're probably a business. And whether you're a baby business or a big business, the law doesn't care. You are a business. That means you're using something for commercial use, and it means you have to put your business owner CEO hat on so that you can own your business, including knowing the legal consequences of your actions. All right. The buck stops with you for good and bad. So let that be empowering to you and not scary for you. And that's why you're here consuming this content and putting some of this stuff in action so that we can be ready to make good choices in our business. So remember that the public domain means creative works that were created before 1928. It does not mean anything that you find on Google, on social media, or on any other sources that are part of the digital economy. So make sure we're being good stewards and being creators. And busting any myths that you hear to the contrary that you can use anything online. The second that we're going to talk about is what is copyright infringement? And if I give credit to somebody, is that copyright infringement? Great question. And the answer to this is giving credit does not cancel copyright infringement. Okay. Let me say that again, because it's really clear. Giving credit does not cancel copyright infringement. That means even if you link somebody, Even if you tag them, okay, in the platform, you give them the symbol and give them attribution. Even if you cite somebody, it does not negate copyright infringement. Okay? When someone creates a work under US law, it is their work. Okay? They are the creator. They are the baker of the copyright cake. And you get to decide how you want to parcel out all those slices of cake. And in the beginning, you hold all those slices and people don't get to have those slices. Unless they have something in writing otherwise. Okay. And for photography, the person who snaps the picture, okay, or pushes the button because we're using our phones, okay, the person who does that owns the rights to those images unless you have something in writing otherwise. So just think of that in your mind. That's the default. Person who took the pictures owns the images. So in your mind, if you want to use those images in your business, we need to be thinking about where do those rights go next? Did they go from the photographer to the influencer? To the brand owner, okay? Or did they go from the photographer to the small business owner to the creative agency to the big brand that wanted to use them and then go on social media? And then we give a license to Instagram or TikTok or Pinterest or LinkedIn or whatever. I want to specify here that there is a difference between using in-app features versus doing all this other stuff that's copyright infringement. So if you dig into the terms of Instagram and TikTok and Pinterest, which I have, because this is part of my job, right? Like it's the stuff that literally no one does. I know all of us have agreed to that at 3:00 AM when updating our iOS, but most people don't read these terms. But what these platforms get by us using it and submitting content is they get a license to do certain things with the content that we create and we upload to the platforms. We don't give away all of our rights. Again, let's go back to our copyright cake analogy. Okay. We're still the creators of our cake and we still own a lot of the slices. But one of the slices that we are letting Instagram have is the license to share and for things to be recycled specifically in features like stories, which are short-lived and which people can using like the little paper airplane icon. They can share things to their Instagram stories for a limited amount of time. Obviously all these features change over time. And so the features and the icons may change, but you get what I'm saying is that there's a difference between sharing something. And it's linked, it's still linked, and there's a physical internet digital connection to the original creator and their license that they're getting. That's different than using a reposting app tool. That's different than taking a screenshot and putting it on your Instagram profile or a screenshot and putting it on your website or putting it out and putting it on Times Square or the side of a bus. All of those things that I listed that are not sharing inside the app You are not allowed to do unless you have written permission from the copyright owner. Okay. And who's the copyright owner? The person who took the picture. As you're being a content creator and likely a content curator and a content recycler, and you are helping to create community and make connections between content and get content assembled for your business and your marketing purposes and selling your products and goods and services and offers, we want to make sure that we're being very careful that there's a distinction that if there's something that we want to be using in our business, for commercial use that we have permission to do it. How do we do this? By asking. People ask me all the time, are DMs and emails okay? Sure. If that's all you've got, they're better than nothing. Make sure you're saving those. So I like to have a folder on my phone or on my computer called permissions. And if you are getting permission for someone to share their user-generated content, just take a quick screenshot of it and save it. And that way, if you ever had to document it and show proof of your honor, judge or jury, I had permission. They gave me permission to share it. Ideally, we like to have a, a more formal written contract that talks about what is the content that they can share for how long and for what purposes. And if we're getting to more complex or capital-based licensing where we're putting a lot of money and effort and capital and energy into projects, then we want a more fleshed out agreement that's gonna have and talk about all those things to make it really clear what are we paying for and what can we use for. Okay. So let's remember, credit does not equal cancel infringement. If you take away nothing else from this talk today, I want to make sure it's crystal clear in your head so that the next time International Women's Day comes around and you're like, oh, I just found this amazing picture, this cool artwork online that someone shared about a woman boosting up another woman, and it's in my great brand colors, and I am going to just screenshot it and I'm going to post it to my Instagram profile for International Women's Day. Yay! I want there to be a little Jiminy Cricket voice, maybe with pink lipstick, that comes on your corner that says credit does not cancel copyright infringement. Okay? Just because you give credit, you're not in school anymore. You're running a business. Okay? And in running a business, you don't get to use other people's stuff without permission. You just don't. Okay? Crème brûlée can never be Jell-O. All right? Any Best Friend's Wedding fans in the house? So it's just something we need to accept and move on and make it so that we are having clean, processes as we're creating content and using permission. So let's get permission when you need to. And most people, honestly, other creators are happy to give it, especially if they want stuff to be shared, especially if you're going to give credit and tag them or whatnot, but you need to ask first. So when in doubt, please ask. And then the last juicy piece about this is let's talk about fair use. Fair use is a little bit like Inigo Montoya from The Princess Bride, where he says, inconceivable. And you keep on saying that word. I do not think it means what you think it means. This is fair use, especially on the internet, especially if you are a creator or a created and you are making a lot of cool content and you're remixing from content if you're doing reaction videos and commentary and criticism. But let's clarify here and now what exactly is fair use. And it is something that you have and that you should rely on when you are creating and selling your content. So fair use is a part of copyright law. It's a part of doctrine. But what's a really important thing to understand is that it is a defense to copyright infringement. That means even if you have fair use, it may still mean that if you get sued for copyright infringement, meaning you use someone else's work, they got mad, they sent you a cease and desist, it escalated. Now they launched a lawsuit. You're likely still going to have to hire an attorney and it's going to cost you thousands and thousands of dollars to defend yourself and your business in that lawsuit. Even if you're right, I just want people to understand that fair use is not something that is a get out of jail free card. It is only a defense that you may or may not have, especially since fair use can be a really tricky case-by-case analysis, meaning that even as I talk about these things today, please don't consider this and be like, oh, I know automatically it's fair use and I should be able to do this from now on and never check in. It's probably still a gray area. And so good copyright attorneys who practice in the space, intellectual property attorneys like myself and other colleagues. Know that we don't give a fair use analysis unless we have a lot of digging and context about the relationship. And even then, there's usually a caveat of these are likely what the court may look at or what a judge or jury may look at. But most of the time we cannot give you a black and white, yep, you're good, or no, you'll never get in trouble. That kind of like concrete thinking would be really great. It's not what most attorneys have to wade through. And that's why fair use can be really tricky. So again, it's the defense. So a fair use analysis has 4 factors. Okay. And they're based on a sliding scale again, and it's more of like guidelines than actual rules. Okay. Pirates of the Caribbean. So what are the factors and are they working in your favor? Let's look at them. Okay. So if you are asking yourself, is this fair use? Factor number 1, is the use that I'm using of this property for profit? Is it for commercial use? So say I'm going to create a YouTube video. And I want to use content of someone else's. That's the first question I need to be asking is, am I making money off of this for profit? Here's the thing, guys, even if you're like, this isn't an ad, so it's not commercial. No, because guess what? You are monetized on your YouTube channel. Even if someone's like, I don't monetize through my channel, or I'm not running ads, or I'm not making that much money, the law doesn't really care. Is it possible that you're growing an audience through using that? And that because of that, You're then on the backend going to be, it's like a lead magnet, right? For other offerings. That's basically, you're still using your content as a giant commercial. So it is still commercial use. Factor number 2 of the fair use analysis. How creative was the work you copied versus how factual? And this is a weighing test. Okay. So imagine we have our Lady of Justice here and she's trying to weigh out, meaning was the work more creative? Was it creative writing or creative music or creative video? Or was it more of a chart, a list of ingredients, a recipe, a graphic design layout, a template? Stuff that, while cool, is not the same as an original creative work that literally came out of the creative genius mind. Think of the light bulb coming off and then it went and we wrote it down into something or we recorded it or something. Okay. The more creative of use, the less likely that you have fair use to use it. Okay. If it's more factual, the court might be like, eh, I could see how you're talking about this and the original copyright owner maybe doesn't get as much protection. Okay. Factor number 3, how much did you copy? What was the proportionality of the work? And I wish I could give you a bright line number here. I know this gets thrown around, especially in graphic design and original art and illustration all the time. People say we have to change it 10%. It's just not true. So I'm sorry for whoever told you that. Whatever beef you have with your professor, you can go back to him and tell him, I told you so, that's not true, but it's not true. Um, there's no number that you have to change and then you're okay. Because here's the thing, we have proportionality, but we also have the heart of the work. So I could look at a Harry Potter book and maybe I could change a lot of it, but if the main character is still called Harry Potter, or if they still go to a wizarding school, That's over 7 years and they play a flying broom sport called Quidditch. You know what I'm saying? If the things that you did copy are the heart of the work, which again, sounds like an expensive legal analysis. If it is, you could still get in trouble. Okay. And fair use is not going to be available to you. And factor number 4, the value of the original work and your commercial impact on it. What do we mean by this? By you saying, we're going back to our YouTube example, by me putting up this video, Is it likely that there's going to be a commercial impact on the original stuff? Is because I'm showing you this episode that people are not going to go pay to go to Hulu and watch the original episode? Probably not fair use. Can you see why? Because it's not fair. You're hurting the marketability. You're hurting the commercial capitalistic opportunities for that work. And that goes against the whole doctrine of copyright law, which says, hey, if you create it, you get to exploit it. You get to make money off it. Otherwise. The arts as we know it cease to exist. So it's a really important doctrine. And so all of those four factors would be weighed by a judge or a jury. And again, it's a defense. So it's not something I want you to bank on and be like, oh, I for sure have fair use so I can use this and take it to the bank. Even if other people are doing it, there's no guarantee that there can't be a sweep or that you could be the unlucky sucker that gets caught, right? Based on someone else. There is also part of this analysis can be parody and commentary. And those are things that are specifically spelled out as usually okay. And they get fair use. This means that if you're a book reviewer, guess what? You get to show the front of the book and you could talk about the book. And this makes sense, right? This is just common sense. The other part of this doctrine that's still changing a lot where the law is trying to catch up to the modern economy is transformative use. This is looking at whether did you take the work and mix it up enough and create enough new work to it that it's actually changing and transforming what the original work is. Copyright nerds like me are super excited for the Andy Warhol case, which is supposed to be out the Supreme Court opinion sometime this year, because that's hopefully going to give us a lot of information and some help because we have not had a Supreme Court case on copyright law for a very long time. And frankly, it's really hard to look at these things in the age of the internet and to try to give guidance to our clients of like, how much is too much and how much do you have to change something that you found online until it really is a new work? Okay. So stay tuned and make sure you're checking and following with me because I will for sure be giving a whole debriefing. Once that case comes out in the legal opinion. Another note here is about song lyrics and movie quotes, because I get this question a lot on my Instagram is, Brit, how can I use song lyrics or movie quotes from other things? Can I put them on a t-shirt or a mug? Can I sell prints in my Etsy shop? Great question. Because those are short words and phrases, traditionally they don't get copyright protection. So you might be okay. However, you also need to make sure you're checking trademark because for example, Taylor Swift, is really good at locking down and protecting her brand. And she has gone back and trademarked some of her famous song lyrics, probably so that she can sell merch and that people won't be scooping her out of her own merch market. Cause she's a really smart businesswoman. You need to be making sure and not only have your copyright hat on, but also your trademark hat on, which as you remember from my previous video, trademark protects brand assets. Okay. Branding and brand assets. So even if something can't be protected by copyright law, it's possible that it could be protected by trademark. For example, I had a client that was doing something related to The Office, right? The NBC Universal show. And for example, The Office, the name of it and the icon that goes in front of the TV show is trademarked. So is the name Dunder Mifflin, even though that's a fictional paper company. And the reason why is, is because NBC kind of bungled this actually. They didn't trademark it at first, and there was a merchandise company making a whole lot of money selling Dunder Mifflin stuff and they caught on. And anyway, sent them a cease and desist. They cleared them out. They're not squatting on their trademark rights anymore. But it's a good reminder that if you have a property like that's part of a bigger work, make sure you're consulting with an IP attorney and you're protecting it using trademark and copyright the best way you know how. Okay guys, I hope that was helpful. I know this is a lot of information about fair use and copyright, but these are questions that get brought up all the time. Remember to make sure you have your CEO and copyright hat on when you are creating a work or when you're borrowing or getting inspired by other work. The safest thing to do is to create the work yourself, do the work yourself, or if you have to use other work, including photos, video, music, artwork, surface pattern design, illustration charts, that you make sure it's either in the public domain, that you have a license or permission to use it. Don't assume that just because you give credit like you did on your high school English paper, that you're gonna be able to walk off scot-free because we're not in high school anymore. We're in the big leagues. We are business owners, and that means we need to be thinking and have our business owner hats on. Okay? Make sure that you keep on tuning back here. I'm Brittany Ratelle, attorney for online business owners, where you can find more information on how to get you and your modern online business legally legit. Make sure you like and subscribe this video and check out my foundational series so that you can make sure you're getting your foundation People, brand, and product legally legit and ready to scale.