Imitation is the sincerest form of flattery.
Everything that needs to be said has already been said.
I'm sure you've heard these quotes before, and it's true that it's difficult to create something entirely fresh and new (especially when you are pushing out content on a regular basis). We are continually inspired by and build upon what we've already encountered.
There is a line, however, between taking inspiration from another's work and taking another's work. Simply put, you don't want others taking your intellectual property, AND you need to be sure that you're not crossing from “building upon” to “borrowing without permission.
Sometimes knowing where that line is drawn can be confusing, and that can be an expensive mistake. On the flip side, you may not be certain about what to do if someone is using your work without permission.
As a result, some of the most important legal topics for influencers to understand involve intellectual property, especially copyright. In this post, we'll tackle copyrights, what they protect, and what to do if someone infringes on your copyright.
Here’s a brief overview of the areas that are most important for bloggers when it comes to copyright.
What is intellectual property?
Intellectual property means the work or content that is a result of an act of creativity. The three main intellectual property areas are patent, copyright, and trademarks.
Patent law covers inventions and is a very specialized area of law. Because this is not as common for bloggers, we will not be covering patent law. If you need assistance with this area, we strongly recommend you seek out a patent attorney. (And, sneak peek, we'll cover trademarks in our next post.)
What is a copyright?
A copyright gives exclusive rights (which we’ll refer to as copyright rights) to the creator of an original creative work.
Once upon a time, in the early days of blogging, people thought it was okay to do a Google image search, copy the photos and use them in posts. (This is not okay. Please don’t do this.) As influencer marketing has matured, people have grown to have a better understanding of copyright law, but we still see some questions that frequently resurface.
Let's go over your rights and the rights of third parties.
What can be copyrighted? What can't be copyrighted?
Before we talk about the copyright rights, it’s important to understand what can and can’t be copyrighted.
You can receive a copyright on original works such as photos, copy (including blog posts), songs, videos, and manuscripts. You cannot copyright works without “originality” such as titles, slogans, and recipes (listings of ingredients and steps). Most importantly, remember that a copyright is only applicable to the expression of the original work; it does not cover ideas.
As the owner of a copyright, you have the following copyright rights:
- The right to reproduce the work;
- The right to create derivative works (new works based on the original);
- The right to distribute copies of the work;
- The right to publicly display the work; and,
- The right to perform the work.
As a copyright owner, you can grant others these rights. We’ll describe the most typical methods, licensing and assignments, below.
Transferring copyright rights
What is an assignment?
An assignment transfers all of your copyright rights to a third-party. For example, if you are working with a brand and they want to retain all of the rights to the content that you create, you will grant them an assignment to the copyright. You are assigning all rights to that copyright to the third party. This should be included in your contract with the brand.
What is a license?
A license conveys permission to certain copyright rights to a third party. For example, if you are working with a brand, and they want the right to display the content that you create on their social media channels, they may request a license to the right to display the content. In this case, you still own the content, but the brand has the right to exercise certain rights that you license to them.
Do I need to file for a copyright?
Through the act of publishing the original work, you automatically have the copyright to that content. If you file with the copyright office, you receive additional legal rights, including the right to bring an infringement lawsuit.
What if someone is infringing on my copyright?
If someone is infringing on your copyright, the first step is to reach out through a cease and desist letter. A cease and desist letter asserts your rights to the copyright and advises the other party to cease infringing.
If you are unable to send a cease and desist letter directly to the infringing party and the infringement is happening online, you can send a DMCA takedown request to the website’s host. (DMCA is Digital Millennium Copyright Act.)
Can I use someone else’s copyrighted works?
To use someone else’s copyrighted work, you must either have permission or it must be considered fair use. Fair use means that you have a limited right to use someone else’s copyrighted work without having to first get permission. Common examples are parody or news reporting. Unless you are well-versed on the fair use doctrine, we do not recommend using another person’s copyright and claiming fair use.
We’ve seen a lot of people state that if something is published on the internet, it is in the public domain and is, therefore, available for anyone’s use. This is an incorrect interpretation of what the public domain exception means.
Typically, if you want to use a third-party’s copyrighted work, you need permission. Attribution alone is not sufficient— the key here is permission. The copyright owner can grant you a license to display the work.
If you are obtaining stock photos online, it is extremely important to review the license on these images prior to your use. No one wants to be on the receiving end of a cease and desist requesting thousands of dollars for content!