How To Avoid Breaking Copyright Laws While Marketing

The challenge of any business is how to stay out of trouble while curating content. Content here would be classified as any digital asset such as images, social media posts, blog articles, youtube videos, tweets and background music in Livestream. Content defines your existence on the internet space. If curated improperly, you can infringe on copyright provisions and expose yourself to lawsuits. Not only that, but you can also expose your employers and clients to financial and reputational damages.

Do you remember that famous street artist, Shephard Fairey who designed the Hope poster while former President Obama was running for the presidential election far back in 2008? That design eventually became the epitome of Barack Obama's campaign.

Photograph: Mannie Garcia (2006) via (The New York Times); Poster: Shephard Fairey (2008) via (Wikipedia)

Guess what happened? The Associated Press revealed that the actual image which Fairey based his design on was a one-shot of Mannie Garcia, an AP freelancer. Consequent to that, AP demanded compensation for that use in Fairey's design. Fairey replied by sighting the instance of fair use. He claimed his design did not reduce the originality of the actual design.

Both parties eventually settled the case privately in January 2011 by splitting the profits that accrued from the work.

What is Fair Use?

According to Stanford University:

The purpose will include commenting, cruising, or parodying a copyrighted work. The content can be used in this instance without taking permission from the legitimate owner. In a nutshell, fair use is a justification against a claim of infringement. As long as the use meets up with the principle of fair use, it is exempted from being termed a violation.

The doctrine of fair use provides leverage for content curators in creating new works while drawing from existing content. It is how our culture evolves from the existing ones. However, while fair use is immensely significant for the copyright framework, it is difficult to determine what counts as 'a fair use'.

Meanwhile, the United States court adopted a four-factor test under the Copyright Act

The four-factor test to determine fair use. 

For instance, you can screenshot a portion of a picture you like on the internet and reference the work. Nevertheless, you must familiarize yourself with measuring fair use by using the four-factor test above.

Youtube's Copyright Policy

The platform has instituted several opportunities to create awareness on the basics of copyright and how you can stay out of trouble. An example of such a video is Youtube Copyright basics. It's an exciting and educative video that provides you with some sets of fair use guidelines. Not only that, but Youtube also put in place a system known as the Content ID that enables content creators to identify and oversee their content on the platform. If you submit a new video that matches any footage in the database of previously submitted video, the copyright owner can:

  • Mute the audio that matches their musical content.
  • Block that video from being viewed.
  • Monetise the video content by placing ads on it.
  • Track the statistics on viewership.

With these provisions, copyright owners can be aware of possible infringements and take possible actions such as indirectly granting the uploading user a go-ahead to use the work.
It does not matter whether you are a legitimate owner or someone uploading copyrighted content; you must put into consideration the principle of fair use.

Commercial use Vs. Non-Commercial use

Non-commercial use incorporates a wide spectrum of exciting possibilities. These include educational, artistic, scholarly, as well as personal projects that will not be promoted, advertised or put up for sales. Some examples include but not restricted to tattoos, presentations, research, tablets background, GIFs, Halloween costumes, inspiration boards, decoupage, free as well as ad-free apps, and holiday centrepieces.

Commercial use, on the other hand, includes any form of reproduction or intent that is advertised, sold and consists of a financial transaction. Some examples are, but not limited to books put up for sales, textbooks, merchandise, journals and periodical with paid subscriptions, TV programs, Livestream or commercial films, websites that sell stock photos, advertisements, and caused-related promotion.

Using Images and Videos on Facebook

With the growing popularity of Facebook, many YouTubers are turning to Facebook, especially for streaming. Facebook's high quality, coupled with professional content, has necessitated the need for the platform to incorporate a copyright-scanning algorithm. Presently, every video you post on Facebook will be pre-scanned to verify for any infringement before it shows up on your timeline. Peradventure that video contains any infringing content, Facebook will desist from publishing it and you will be sent a warning.

The pre-scanning focuses majorly on the audio component of the video. It means if that video includes a song that is owned by someone you did not secure permission from, the video will not be published. Therefore, if your video has a song that is not owned by you, stay out of trouble by not posting it.

In the case of a live streaming or TV broadcast, you can receive a warning after the live streaming has been completed. Here's an example of the warning:

This message means the live-streamed video will be suspended from your page for review. After the video has been reviewed or you have submitted a dispute within seven days, the claim will be released by the copyright owner if you have not infringed on their copyright.

Several content creators do not depend on Facebook's copyright scanner. They sometimes watermark their content, which indicates they don't want you to use their video without permission. It is ideal to comply with GDPR and other Copyright regulations in order to stay out of trouble.

How does GDPR affect Australian marketers?

The General Data Protection Regulation or GDPR is a European Union Regulation that includes the requirements on new data protection which took effect from 25 May 2018. The GDPR harmonised data protection regulations across the EU and replaced the existing national data rules and regulations. The essence of the laws is to institutionalise a legal certainty for businesses while enhancing consumer trust in digital businesses. 

So how does it affect Australian businesses?

You will need to adhere to the GDPR provisions if you:

  • Are a resident in the EU.
  • Provide goods and services clients in the EU.
  • Track the behaviours of clients in the EU.

Here's what makes GDPR far-reaching!

Every EU citizen- including those living in Australia presently is protected by GDPR.

The rule also overlaps with the Notifiable Data Breaches regulation established by the Australian Government. We would recommend you comply with GDPR as this also guarantees compliance with the provisions of the NDB.

Proven Tips To Stay Out of Copyright Trouble

1. Familiarise Yourself With The Copyright Laws

As long your business depends on the internet, you are liable to risks relating to copyright infringement. Infringement is not only associated with intellectual property such as an artwork or a song by a renowned artist. However, it also applies to text, images and other contents employed to advertise your business or sensitise your customers.

Peradventure you intend utilising any content on your social media page, for instance, Facebook page. There's a need for you to:

  • Have owned the copyright to the content created by yourself
  • Possess the explicit license from the content creator to utilise it, especially when you outsource the content to a freelancer, or when you request from someone to share their pictures on your page.
  • Ensure the content is covered by the creative commons license or a royalty-free stock photos,  which you can source from websites such as Pixabay, Pexels, Canva and Envato element license.
  • Attribute the actual content creator.

Don't assume you are utilising a content based on fair use; ensure you understand the nitty-gritty of Copyright Law in 2020. 

2.  Read Copyright Policies

Every website and social media platform has copyright policies. Several users don't even bother to familiarise themselves with those policies. Most times, the terms of use for sites may look identical; ensure you read the copyright policies. Facebook, Instagram, Youtube, Amazon and other corporations would rather ban your page than risk lawsuits due to your negligence.

3. Check for plagiarism

This is the first rule of copyright. Ensure your content is free of plagiarism. What is plagiarism? It is the act of stealing another person's work and personalising it for commercial or non-commercial use. Plagiarism is a cankerworm of the internet and it can ruin the visibility of your website on Google Index. It can also de-rank your website on search engines. You can protect your website by installing Copyscape to get plagiarism alert.

4. Desist From Using Unlicensed Music

Let's say your content is to be used on social media, the chances that it is going to be removed or blocked while uploading is very high. Facebook, Youtube and other big platforms deployed Machine Learning and AI-powered algorithms to detect if you have used copyrighted music in your Livestream or video. Youtube also established the ID systems to match your content with the existing database of content.

It's so hard that even if you have the right to use Copyright tune, the systems will first block your video and leave you with the responsibility of proving your rights to the tune. This process can take you weeks, and even months to resolve.

In some cases where someone has managed to utilise copyrighted music in his or her video, that video will not just be removed, the entire Youtube channels can be deleted and the monetisation privileges can be suspended. Here's how you can secure permission before making use of any song.

5. Give Attribution

Attribution does not nullify violation. If the copyright proprietor does not want you to utilise the content, it does not matter if you link back to their site.

An attribution is only a form of goodwill. Several corporations, artists, content creators lack the luxury of time and money to pursue any legal action. But if you fail to attribute to them, they may be left with no other option than to claim copyright. Attributing to some artists can help them gain exposure. Thus, they can allow you to use the music. Nevertheless, don't count on it. Follow best practices while giving attributions.

6. Request for the permission and pay

If you have no other option but to utilise a copyrighted content, follow the right course. Collaborate with your lawyer to draft a contract which favours the artist and also include an offer to pay for the license.

You can offer a fair rate, and you will possibly get a good response. This will allow you to use the content in the future. You can also download a copyright license agreement template from sites such as Pandadoc.

7. Utilise Royalty-Free Images

You can download royalty-free images from sites such as pexels and pixabay. You can also customise images on Canva using the pre-designed templates. Regardless of which option you go for, ensure you check out for their creative commons licenses.

Peradventure you outsource the job to a freelancer, be ready to pay for commercial use license. For instance, Fiverr can upsell commercial use in two ways: the source file and the commercial use license which grants you(the buyer):

Bonus Tip: Learn how to appeal

If any of your posts have not been removed, it may- sooner or later. However, you will always receive a notice to appeal within a stipulated period. This is to ascertain if your content has been mistakenly removed or to prove that you own the copyright licence. In any case, learn how to file a dispute.

Final Thought

Here's the main point! 
As soon as you secure the permission to use copyrighted content, ensure you stay within the boundaries stated in the agreement. A deviation can trigger a claim on infringement which can damage your reputation, waste your productive time and money. Also, use content owned by you and be eager to ask for our help in order to stay out of trouble while marketing.

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