In my article, Copyright Abuse Of Photography Is Serious Business, I discussed some of the pitfalls of placing text and, more commonly, photographs on the agency website. In this discussion, I will delve deeper into the issues raised by posting text, as well as photographs, on social media. Understanding the limits on this activity is very important in today’s digital marketplace.
The question that prompted revisiting these issues arose in TMR’s recent survey of reader interests: What can and can’t be posted on websites like Facebook? Is it safe to post photos I have taken myself? The issues are even bigger than that. Website designs and use of logos, for example, are additional sources of risk that need to be considered.
"If you don't own it, don't use it"
For text and photographs, the pretty simple and safe rule to follow is: if you don’t own it, don’t use it … unless you get permission in writing. For photos, if you or someone aligned with you, like a close family member, took the pictures, you may use them freely. However, one important caution is in order: you should always retain a copy of the photo in its initial form along with the metadata associated with it. Metadata is simply “data about data.” For our purposes, metadata is information about the photo that was created by the camera when the shot was taken. It may include information about how large the picture is, image resolution, when the image was created, shutter speed, f-stop and other similar data points, depending on the sophistication of the camera used.
The importance of metadata is that it helps establish when the particular photo was taken and how it was taken. This could be critical if a dispute arose because the reality is that many photographs of travel-related scenes are virtually indistinguishable upon general eyeball inspection from many other such shots. Moreover, it is possible that the rights to use a photo are available for purchase from more than one stock photo website. During my law practice, I encountered this situation. It required some strongly worded letters to resolve the claim for damages being asserted by one holder of the photo’s usage rights.
Retain the original photo and associated metadata in a secure, backed-up file so that it can be found if needed. This will not take much time and is good, cheap insurance. Large and sophisticated stock photo websites sometimes use algorithms to search the internet 24-hours a day looking for photos that match at least some of the characteristics of their huge inventories.
As indicated, the rule for text is the same as for photos. If you want to add text someone else wrote, the chances are high that the author will have some kind of copyright protection, even if only at common law. Therefore, the careful travel agency will not simply copy someone else’s work, no matter how brilliantly it describes the destination you are promoting. If you are using a meaningful amount of text (very difficult to say how much is a “meaningful amount), you should seek permission, especially where there is commercial gain to be enjoyed from the usage. Get the permission in writing and be precise about what text the consent refers to, so there is no risk of misunderstanding when the author sees his work displayed on your website or Facebook page.
Fair Use exceptions
You may have heard about the doctrine of “fair use” that permits, in some circumstances the unlicensed use of copyrighted material. The U.S. Copyright Office has an excellent summary of the doctrine at Index. Suffice to say, in most cases, commercial use of copyright-protected text or photos will defeat application of the “fair use” doctrine. There is much case law on the nuances of this concept; they are collected at the Copyright Office’s Fair Use Index for the self-education of those with interest and time.
The better approach is to write your own text. Using others’ creativity as your inspiration is fine as long as you don’t just copy their work for commercial gain. Here, again, keep copies of the drafts and final text you are going to place on your website or post in social media, in case you have to show that the words are your original product. There are sometimes only a few ways to express something that is to be wedged into the small space of, say, a Facebook post, so it is possible you will write something quite similar to what someone else published somewhere. If you keep good records to show what you’ve done, you should be able to resolve any disputes quickly.
Using text from press releases without rewriting is generally okay, but attribution is recommended so the reader understands the source of the material.
I mentioned above that website design and use of logos also requires attention to avoid unnecessary risks. The rules are essentially the same: if you see a design you like, don’t use recreate it for your website or use it in Facebook-type posts. While design protection is a less powerful weapon in the hands of the original creator, the gains from copying are simply not worth the risk. Either use a template from a recognized web developer/blog manager, like WordPress, or have your own developer create the design and certify that it is his original work and not copies from another site.
As for creating and using logos, the U.S. Patent & Trademark Office has online tools that enable you to search for trademarked logos that may be similar to one you are considering. Amazingly, I think, the USPTO has a Design Search Code Manual that you can search for design elements by category. There are 29 categories. Obviously, this is very complicated. I strongly recommend that any search of USPTO files be conducted with the help of an attorney versed in such matters.
One other word of caution. The trademark business has attracted a number of firms that pretend to be the USPTO and that aggressively promote themselves. The problem is so common that USPTO has published a warning about it. In any online or other activity related to the USPTO, be sure you are dealing with the real thing.