If you want to use someone else's work on your website, you need to get permission from the author or creator of the work. Even though technology has made information more accessible to everyone, copyright and trademark laws still apply to Web publishing, and websites are common targets for infringement lawsuits. Here are some tips that can help you avoid legal trouble when using other's work on your site.
1. Assume Others' Work Is Protected
You may not freely use someone else's work simply because it has been posted on the Internet (a popular fallacy). Whether you find the material online or off, permission is generally needed to reproduce text, artwork, photos, and music. It is wise to operate under the assumption that all material is protected by either copyright or trademark law unless you have good reason to know that it is not.
Using copyrighted work. As a general rule, any original work -- whether text, visual art, photos, or music -- is protected by copyright law, which means that you may not reproduce it without permission from the copyright owner. Giving credit or thanks to the copyright owner does not change that; you are not allowed to reprint (or distribute, adapt, perform, or sell) the work without the owner's authorization.
Using trademarks. Similarly, if your site sells products or services, permission is often needed to reproduce a trademark, including any word or symbol that identifies and distinguishes a product or service from others -- such as the word "McDonald's," the distinctive yellow arches, or the Ronald McDonald character.
Copyright or trademark infringement. Reproducing someone's copyrighted work or trademark without their permission is known as infringement, and it leaves you vulnerable to lawsuits from the copyright or trademark owner. Lawsuits are even more likely if you stand to make any money off the use, such as posting copyrighted song lyrics on your site to increase traffic and attract advertisers.
2. Read Click-Wrap Agreements
Many companies offer artwork, photos, and other materials for reuse -- alternately called clip art, royalty-free work, copyright-free work, shareware, or freeware. Do not assume that these materials can be distributed or copied without limitation. To be certain that your intended use is permitted, read the terms and conditions in the "click to accept" agreement or "read me" files that usually accompany such materials.
Example: One company failed to honor the terms of a click-wrap agreement and was found liable for illegally distributing three volumes of software clip art.
3. When In Doubt, Seek Permission
Many webmasters manage personal websites or small organization sites -- for example, a site for a school tennis team. Copyright laws do apply to material used on these small or personal uses -- even if it's just the reproduction of a photo taken by a club member, a friend, or a relative.
Getting explicit permission from the copyright owner is the best way to avoid a lawsuit. However, if you are confident that the copyright owner has consented to the use, particularly if the copyright owner is a friend or relative, oral permission may be fine. Although some sort of written consent (even an email) is preferable because it will be easier to prove if a dispute arises.
4. Know Your Site Statistics
Fees for permissions (often called "licensing fees") are often arbitrary and can range from $50 to several thousand dollars. A licensing fee may be based on:
- the number of hits per page
- the number of visits to the page
- the location of the page within the website -- for example, the home page versus an archived page, or
- whether the site is informational (for example, a medical site sponsored by a nonprofit university) or commercial (say, a medical site sponsored by a pharmaceutical company).
Before you seek permission to use material on your website, have ready your website statistics that will most likely affect the fee.
5. Pay Less by Limiting Your Rights
You can save money on fees by keeping your requests as narrow as possible. For example, don't ask for "worldwide rights, all languages" if you need rights only to the English version of a song. And you can sometimes save money by acquiring multiple items from one source. In some cases, you may also be able to lower your fees by offering to pay up front instead of waiting 30 or 60 days.
6. Watch Your Links, Frames, and Inlining
Linking, framing, and inlining are common methods of connecting to information at other websites, and all carry the potential for getting into permissions trouble. Here's a brief description of each of these methods and what to watch out for.
Linking. Including links to another website on your website is not risk-free. Deep links (that bypass a home page and take the user directly to an internal page) in particular can cause disputes. Although not yet ruled to be illegal, deep linking angers some website owners who do not want visitors to bypass information and advertisements on the home page.
Framing. Framing is the process of dividing a Web page into separate framed regions and displaying the contents of someone else's site within a frame at your site. Generally speaking, site owners don't like having their content framed at another site, particularly without permission. At least one court has considered framing to be copyright infringement.
Inlining. Inlining (sometimes referred to as "mirroring") involves incorporating a graphic file from one website onto another website. In 2003, a federal court of appeals ruled that inlined links to thumbnail images was permissible as a fair use. However, the law is not clear as to whether inlined links to full sized images is permissible.
For more information, see Nolo's article Linking, Framing, and Inlining.
7. Don't Count on Fair Use
"Fair use" is a copyright doctrine which, in its most general sense, allows copying of copyrighted material done for a limited and "transformative" purpose -- for example, to review a text, make fun of a pop song, or quote a portion of a novelist's work.
The difficulty in claiming fair use is that there are no "definites," only general rules and varying court decisions. If you believe that your use qualifies but the copyright owner disagrees, you may have to resolve the dispute in a courtroom.
To learn more about when a use is likely to be considered a fair use, see Nolo's article The 'Fair Use' Law: When Use of Copywrited Material is Acceptable.
8. Remove Unauthorized Material
If someone complains that you are using material on your website without proper authorization, you should immediately remove that material. Even if you believe the use is legal, remove the material while you investigate the claim and, if necessary, talk to a lawyer.
Courts often respond favorably to attempts to "contain" the damage. In fact, a 1998 law states that an Internet Service Provider (ISP, the company that hosts the website on its computer server) can avoid liability by following certain rules, including speedy removal of the offending material.
On the other hand, continuing to use material after being notified that you are violating someone else's rights may aggravate the claim and increase your chances of having to pay money to the owner of the work.
9. Use Disclaimers
A disclaimer is a statement denying an endorsement of or affiliation with another site or company. For instance, if your website posts reviews of software and offers links to resellers, you might post a disclaimer in to the effect that your site does not endorse and is not affiliated with any of the software manufacturers or resellers listed at your site.
A disclaimer is not a cure-all for infringement, but, if a disclaimer is prominently displayed and clearly written, a court may take it into consideration as a factor that limits damages in the event of a lawsuit.
10. Visit Collectives or Clearinghouses
The most useful sources for licensable works and for permission information are copyright collectives or clearinghouses. These are organizations that organize and license works by their members. Here are a few examples of sites that license or provide permissions for various types of works:
- Written materials:
- Musical performances:
- Song reproductions:
- National Music Publishers' Association (www.nmpa.org)
- Famous artwork:
- Art Resource (www.artres.com)
- The Cartoonbank (www.cartoonbank.com).
Even if you don't license from these sources, you can often find valuable research information in the event you need to speak with a songwriter, artist, or photographer.
To learn more about getting permission to use materials online, see Getting Permission: How to License & Clear Copyrighted Materials Online & Off, by Richard Stim (Nolo).