The basic concept of copyright ownership is pretty simple: the creator of an original work is the owner of the copyright as soon as the work is created. However, the rise in the popularity of blogs and other social media that require the constant generation of content has led to more lax practices and confusion about proper usage of works created by others. In the realm of the internet and social media, we’re generally dealing with written text, photographs and art/graphic design. I won’t profess to understand exactly what is going on in people’s minds when they make the decision to use works created by others for their own purposes, but I believe that a large part of the issue is due to an “everybody else is doing it” mentality. In the wedding and event industry, we see tons of blog posts featuring photos from events produced by others and inspiration boards made from collages of photos. It is also common for written text from articles and blog posts to be used in part or in whole on other blogs, or in electronic newsletters and magazines. While many of these uses may have occurred after obtaining permission from the original creator, I would guess that a large percentage of these uses occurred without permission. While the general requirement is that you must obtain permission from the creator of the copyright-protected works before you use them, there are certain uses that fall under what is called the “fair use” exception to copyright infringement. While the fair use exception is frequently cited as justification for using the copyright-protected works of others, the exception is actually quite narrow. The basic gist is that copying a particular work may potentially be considered fair use when you copy it for criticism, comment, news reporting, teaching, scholarship, and research. However, just because your blog includes commentary on the wedding industry and specific events, or involves research, reporting or criticism, does not mean that you’re automatically scot-free. There are no absolute rules as far as what uses fall under the fair use exception, and instead each usage is analyzed on a case-by-case basis using four factors:
1. The purpose and character of the use, including whether such use is primarily commercial in nature.
Under the first factor, a commercial use, as opposed to a non-profit or educational use, is a factor that tends to weigh against a finding of fair use. If the copyrighted work is used on your blog that is affiliated with your for-profit company, or a blog featuring paid advertisements and/or paid vendor memberships, the use would be considered commercial even if you’re not actively trying to market your services or goods on the blog.
2. The nature of the copyrighted work being borrowed from.
The second factor in the fair use analysis examines what kind of work is copied. Is it very creative, like a song, photo, or video? More fanciful, creative works receive greater protection than fact-based works, which can only be expressed in a limited number of ways. Has the work already been published or is it unpublished? If the work has not yet been published there is little chance of using fair use as a defense because the original author is entitled to first-publishing rights.
3. The amount and importance of the portion used in relation to the copyrighted work as a whole.
This factor assesses the quantity of the original work you reproduced and included in your own work. The more copyrighted material you use, the less likely that you can assert a successful fair use defense.
4. The effect the use has upon the potential market for, or value of, the copyrighted work.
The fourth factor examines whether the infringing use has, or could have, a negative impact on the market and value of the original work. Two kinds of harm to the potential marketability and valuation of the original work are considered: First, we look to see if the copy acts as a direct substitute for the original work. This means that if the copied work can completely replace the original in the marketplace (usually because it is an exact reproduction), this factor will weigh against fair use. Second, we examine whether the copy could potentially harm the ability of the copyright holder to exploit and grant licenses for secondary use of the work.
A balancing test of the four factors is used to assess whether a use is a fair use. When in doubt, the best policy will still always be to ask the copyright owner for permission to use their work, whether you want to use just a small portion, or the work in its entirety. While most of the time you will probably get the green light to use the work, there are always going to be those people who prefer to limit and control the use of their works, and it’s much better to get a simple “no” from them in an email than to proceed without permission and get served a cease and desist letter or a lawsuit.