Stay on
the right side
of
Copyright
and
Trademark Law
Ashley Packard, Ph.D.
Professionals’ questions
§
What are the issues related to
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clipping services and routing clips to
people?
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§
use of commercial music with videos?
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§
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protection of my content on social media?
use of others’ content posted in social
media?
embedding others’ content in my site?
using another company’s brand name?
protecting my brand from criticism
protecting my brand from impersonation on
a social media site?
Copyright law
§
Applies to all of the work you are producing,
although work produced in the scope of your
employment (if you are working for a
company or agency) likely belongs to the
company as a work for hire.
What are the copy rights?
§ To reproduce
§ To make derivatives of something
(careful of this one!)
§ To distribute
§ To publicly display
§ To publicly perform
§ Includes public performance of a
sound recording by digital audio
transmission
What’s copyrightable?
§
literary works (releases, bios, blog posts,
reports)
§
musical works;
§
dramatic works;
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pantomimes and choreographic works;
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pictorial, graphic, and sculptural works;
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motion pictures and other audiovisual
works;
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sound recordings; and
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architectural works
§
not tweets, but maybe compilations
What’s not copyrightable?
§
Facts and ideas
§ (but using without credit is plagiarism)
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Procedures and processes
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Titles and names
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Typefaces (but programs are protected)
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U.S. documents
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Scenes à faire
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Works in the public domain
What issues are related to
clipping services?
§
Clipping services used to operate under
the first sale doctrine.
What issues are related to
clipping services?
§
Now they scan articles. That means they
are retaining their copy while reproducing
and distributing another you.
Using clipping services?
§
If you reproduce and
distribute copies of news
stories to your clients without
a license that is a violation of
copyright law.
§
So is your clients’ circulation
of those articles on their
websites.
Using clipping services?
§
The new norm will be
clipping services that help
you license content.
Can you use a song with a
promotional video?
§
You should license songs
because there is very little
leeway to incorporate music
into commercial product.
Can you use a song with a
promotional video?
§
You should license songs
because there is very little
leeway to incorporate music
into commercial product.
§
E.g. Joe Simon, sued for
incorporating Coldplay song
into wedding video that went
viral.
What if I bought the song?
§
Owning a copy of a song and owning the
rights to it are two different things.
What if I bought the song?
§
Owning a copy of a song and owning the
rights to it are two different things.
§
Buying a song on iTunes means you have
the right to play it for personal use, not to
broadcast it on the Web.
What kind of license do I
need?
§
You need to synchronization license
to combine music with videos.
What kind of license do I
need?
§
You need to synchronization license
to combine music with videos.
§
If you want to combine a particular
version of the song (by a favorite
artist), you also need a master sound
recording license.
How do I get a license?
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Established music clearance and
licensing companies can help with
this.
§
For synch license for musical
work: BMG, Warner, EMI,
ASCAP, SESAC
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For master recording license:
Sound Exchange or the record
company
What about fair use?
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Fair use allows you to use a small portion of
a work for criticism, comment, news
reporting, teaching, scholarship and
research.
Consider Creative Commons
§
Creative Commons
licenses provide a
standard way for
content creators to
license someone else to
use their work. Including
music.
Sites offering cc-licensed music
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ccMixter
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Free Music Archive
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Jamendo
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Magnatune
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BeatPick
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CashMusic
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Opsound
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AudioFarm
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Internet Archive’s Netlabels Collection
Consider Creative Commons
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You can find cc-licensed images there as
well.
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But be careful about using images of
people for commercial purposes.
Consider Creative Commons
§
You can find cc-licensed images there as
well.
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But be careful about using images of
people for commercial purposes.
§
Alison Chang
Can I reuse photos posted
on our social media site?
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Not without asking for permission.
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People retain the rights to the
copyrighted works they share for
viewing on their sites and others’
sites. The copyright to a work can
only be signed over in writing.
Can social media sites claim
rights to my content?
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When you sign up for a social media site,
you license the use of your content to
that site.
Can social media sites claim
rights to my content?
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When you sign up for a social media site,
you license the use of your content to
that site.
§
You maintain ownership of your content,
but give them the right to use it.
§
James Ervin
The typical license says
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You give Facebook a “non-exclusive,
transferable, sub-licensable, royalty-free,
worldwide license to use to use any IP
content that you post on or in connection
with Facebook.”
The typical license says
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You give Twitter “a worldwide, nonexclusive, royalty-free license (with the right
to sublicense) to use, copy, reproduce,
process, adapt, modify, publish, transmit,
display and distribute such Content in any
and all media or distribution methods (now
known or later developed).”
Is it OK to embed material
from other sites into mine?
§
Embedding, otherwise known as
inline linking, allows content
from site A to appear in site B.
This is done by incorporating a
link to site A in site B’s code, not
by actually reproducing the
material.
Is it OK to embed material
from other sites into mine?
§
Embedding, otherwise known as
inline linking, allows content
from site A to appear in site B.
This is done by incorporating a
link to site A in site B’s code, not
by actually reproducing the
material.
§
It is considered bad form to do
that without asking, but it has not
been found to be illegal.
What about Pinterest?
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A pin is an inline link to another site –
probably legal.
What about Pinterest?
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A pin is an inline link to another site –
probably legal.
§
But Pinterest appears to also make a lowresolution copy of the image that it saves
and uses for repinning.
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That is questionable (Transformative? A
thumbnail?)
What about Pinterest?
§
A pin is an inline link to another site –
probably legal.
§
But Pinterest appears to also make a lowresolution copy of the image that it saves
and uses for repinning.
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That is questionable (Transformative? A
thumbnail?)
Uploading copies you don’t own would
violate copyright law.
Pinterest’s new policy
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Allows copyright holders to insert a “no pin”
code in the source code of their websites to
prevent inline links.
Pinterest’s new policy
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Allows copyright holders to insert a “no pin”
code in the source code of their websites to
prevent inline links.
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It also allows copyright holders to make
takedown requests.
Some sites allow embedding
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YouTube and Vimeo require posters to
allow others to embed their videos in its
license agreement.
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As long as the poster owned the
content posted, it is OK to embed it in
your site.
Let’s switch to trademark…
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Trademark law applies to registered
marks (words, symbols, phrases)
protected for commercial use.
What are the guidelines for
using brand names and logos
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The use of a trademark that creates a
likelihood that a consumer would be
confused about the source of a product
or communication about it is trademark
infringement.
What are the guidelines for
using brand names and logos
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The commercial use of a famous mark
that creates a likelihood that the
trademark will be diluted (by blurring or
tarnishing it) is trademark dilution
Can I use a trademark in advertising for
humor or to make a point?
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Yes, as long as the use is not likely to
confuse consumers.
Can I use a trademark in advertising for
humor or to make a point?
§
Yes, as long as the use is not likely to
confuse consumers.
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Parodies are protected
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Comparative advertising is protected
Can I use trademark to stop
criticism of my company?
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Not unless the site is
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Commercial and
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Tarnished by its association with an
inferior or disreputable product.
Blurred by its association with a
dissimilar product or
Can I use trademark to stop
criticism of my company?
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Congress precluded liability for fair uses of
trademarks in comparative advertising,
parodies, criticism, and commentary, along
with references to trademarks in news
reporting and commentary
What if someone uses my
trademark as a URL?
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Gripesites (e.g. YourCompanySucks.com)
are also protected as long as they are
noncommercial.
What if someone uses my
trademark as a URL?
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Gripesites (e.g. YourCompanySucks.com)
are also protected as long as they are
noncommercial.
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Sites that create the impression they are
from you, with the intent to profit on your
name, are not. That’s cybersquatting.
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Anti-Cybersquatting Consumer Protection Act
What if someone fakes our
social media account?
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The primary question is whether the site is
obviously fake.
What if someone fakes our
social media account?
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The primary question is whether the site is
obviously fake.
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Twitter allows users to create parody,
commentary or fan accounts, as long as
they make it clear that the sites is a fake or
homage.
What if someone fakes our
social media account?
§
The primary question is whether the site is
obviously fake.
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Twitter allows users to create parody,
commentary or fan accounts, as long as
they make it clear that the sites is a fake or
homage.
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Facebook has a policy against
impersonation and will take the site down at
your request.