Gallet Dreyer & Berkey, LLP | Common Copyright Issues Facing New Businesses
This links to the home page

Common Copyright Issues Facing New Businesses

10/23/2017 |  By: David T. Azrin, Esq. | GDB 2017 Fall Newsletter
How do I stop a competitor from copying my website or other materials?

You obtain copyright protection the moment that you create the work (whether it is a written work, or a photograph, picture, artwork, design, or other visual work), assuming that it is original and that the creation involved some creative effort. 

But this is not enough to actually stop someone from copying your work.  While you are not required to register a work with the U.S. Copyright Office to obtain copyright protection, you are required to register the work before you can sue anybody for violating your copyright.  You are allowed to register a work “after the fact,” even years after you created it, if you need to sue somebody.  

Registering the work right away with the copyright office removes much of the uncertainty about when you created it.  But if you like, you can wait to register the work until you need to sue somebody.  The normal filing fee for registering a work is only $35 and the process takes many months, but if you need to register it right away in order to sue somebody, you can request expedited service for an additional filing fee of $750. 

Bear in mind that you cannot copyright a name, title, slogan, or short phrase.  These can only be protected by trademark law.

Am I allowed to use any photos or written materials that I find on the internet for free for my own website or marketing materials?

The answer is that it depends. 

Just because something has been posted on the internet does not mean that you have the right to copy it and use it on your website or marketing materials.  Your right to use the photos and written materials is still limited by the rights of the author who created the work and who may still have the exclusive right to sell, distribute, display, perform, or make copies of the work.  Photographs are considered protectable works, and the copyright is owned by the person who took the photo.  Simply acknowledging the source of the photo or material is not sufficient. 

If you use a photo or written materials that you obtained from the internet, and if the copyright is still owned by the copyright holder, the copyright holder can sue you, and can seek and possibly obtain an award against you for an injunction, statutory damages, and attorney’s fees.  

What if you purchased a copy of the photo or the written materials?  Can you then post a copy on your website?  The answer is no.  Under the “first sale” doctrine, if somebody purchases a work or a copy of the work from the author, the purchaser gets the right to sell, rent, or throw away that particular copy, but the purchaser does NOT get the right to make copies.  This is the doctrine that gives video rental stores and Netflix the right to rent physical videos or DVDs they purchased, bookstores the right to sell used books, and book owners the right to re-sell their books on eBay.  But the purchaser cannot turn around and sell, rent, or make available digital copies on its website, because any digital transmission or display involves copying.  The right to make copies still belongs to the original author.

But there are exceptions.  Generally speaking, you can only copy or use a digital copy of anything that you find on the internet, if it falls under one of the following general exceptions:

Older works.  Copyright rights do not last forever.  All works go into the “public domain” after a certain amount of time.  Works published before 1923 are considered in the public domain.  Works published after 1922 but before 1978 are protected for 95 years from the date of publication, or if it was not published before 1978, the life of the author plus 70 years.  For works published after 1977, the copyright lasts for the life of the author plus 70 years, except that if the work was done for hire or is published anonymously or under a pseudonym, the copyright will last between 95 and 120 years, depending on when it was published.

Works owned by an organization that offers copies for free.  Certain organizations, such as Getty Images, Unsplash, or Shutterstock, collect and make available images which are either in the public domain or for which the author has granted all copyright to the organization.    

Fair use.  Copyright law creates an exception for “fair use.”  However, the determination whether your use qualifies as “fair use” depends on a number of factors, and the dividing line for “fair use” is not always clearly drawn.  The courts will weigh the following factors:  1) whether you are using it to make money?  (If you are using it only for educational or non-profit purposes, a court is more likely to consider it “fair use”); 2) whether you are using the entire work?  (If you are only using a small part, a court is more likely to consider it “fair use”); 3) whether you are making any changes to it?  (If you are making your own original “transformative” changes to the work, a court is more likely to consider it “fair use”); and 4) whether you are using it for public benefit?  (Criticism, commentary, news reporting, and research are more likely to be considered “fair use”).  Most importantly, each situation is examined on a case by case basis. 

If the work does not fall under one of these general exceptions above, then you must get written consent from the copyright owner, before using a copy of the work on your website or marketing materials.