Despite many digital marketers believing that law bears little relevance to the world of Digital PR and content, there are numerous ways in which a digital PR campaign could land you in legal trouble without the right precautions - and ignoring copyright rules is one of them.
In fact, since data from different sources and existing content is often utilised to inspire and craft digital PR campaigns and various other content, there are plenty of opportunities for copyright law to trip us up. However, it’s important to save both your agency and client from the embarrassment of breaching copyright, since it can be an awkward and expensive ordeal at times.
Fortunately, we’re on hand to help by sharing our legal insight into copyright rules and some handy resources to help you discover what, when and how you can use someone else’s content within your own.
Copyright is an Intellectual Property right that gives an individual automatic ownership over their creations, similar to how we own tangible things, except these rights extend to virtual content too. Essentially copyright is automatically given to an individual when a qualifying piece of work or ‘content’ has been created, so long as it is original. Once it has been created, the author or creator reserves the right to own it and issue licenses or permissions over its use, meaning that they are in control of how it is used and by whom, as well as for what price.
The first owner of the copyright over a piece of content will typically be the individual who created it. However, there are a few scenarios where this may not be the case. For example:
◼ Where an individual has passed the copyright on to someone else, or
◼ Where an image was created by an employee for work purposes so the employer owes the copyright instead.
You may be able to use copyright-covered content if you have gained explicit permission from the copyright owner to use the content in a certain way and under a specific set of conditions. However, it is important to remember that sometimes copyright is owned by numerous people and, in this case, permission may need to be granted by all copyright owners if a single entity cannot provide blanket permission.
Why should we care? Well, if you ignore or breach copyright, you may be guilty of ‘copyright infringement’.
Definition of copyright infringement: Where someone copies, distributes, rents, lends, performs, communicates, or repurposes a substantial part of work protected by copyright without the owner's explicit permission or consent.
As it is illegal to infringe on copyright, it is possible for individuals and companies to sue as a result, either seeking an injunction to:
◼ Prevent further infringement,
◼ Damages for any loss caused,
◼ An account of the profit made by the infringer, or
◼ Various other remedies.
Essentially, you don’t want to be caught breaching copyright. Not least because it can prove awkward having to explain why you have used someone else’s work without their permission, but also because the legal hassle involved can be time-consuming and often costly.
A popular misconception among marketers is that, if there isn’t a © icon or symbol displayed, there is no copyright over the content. However, this is not true, and you should always assume that unless it explicitly states otherwise, that creative work is copyrighted.
In fact, copyright applies to all kinds of work, including but not limited to literary, dramatic, musical and artistic work and other forms of media. This means it is especially likely to apply to certain content used within digital PR campaigns, such as data sources.
So there are a lot of restrictions, but what content can you use?
Fortunately, all hope is certainly not lost for digital PR teams looking to find, repurpose, and incorporate existing images or data in their campaigns, since there are numerous circumstances where existing content can still be used.
1. The most obvious instance is where you have taken or designed an image yourself, creating an entirely original concept.
2. You may also be able to use existing content if the way you are using it is deemed to be ‘fair dealing’, or ‘fair use’.
3. You will also be able to use existing content if the content is in the public domain, or marked with a public domain icon (pictured in the section below).
4. You may be granted some specific permissions to use copyrighted content if there is a license over it permitting you to do so. To find out more about these particular licenses, what they mean and what they permit you to do, download our PDF guide.
5. If you have bought the permission or license to use the content in a certain way. Shutterstock subscriptions are a common example of this.
6. If you have gained permission from the original creator/copyright owner to use the content in a certain way, then you will be able to do so, but that way only.
Content that is within the public domain is available for anyone to use in any way they choose as it is work owned by the public rather than an individual author or artist. Certain institutions’ images are copyright-free, for example, and within the public domain. Likewise, work might fall into the public domain if the copyright has expired or where it was published before a certain time.
It is important to note that whilst things may be within the public domain in one jurisdiction, they may not be within another. As a result, it is important to check with your country’s copyright laws.
Creative Commons licenses are another popular form of permissions and they will typically be identified by their CC mark. There are numerous different Creative Commons licenses, each permitting a different level of use, so familiarising yourself with these is a sure-fire way to ensure you’re complying quickly and easily when choosing data and media to use.
For example, some licenses have conditions that require credit to be given, some licenses only permit non-commercial use, and some restrict editing for example.
For more information about the different license types and what they entitle you to do with existing data and media, download our PDF guide.
Fair Use is an implied term, or exception to British copyright law, that may allow certain uses of creative content to be permitted, insofar as certain conditions are met.
Unfortunately, unlike some more concrete laws, there is no legislative definition of fair use. It is often decided on a case-by-case basis, based on the facts, degree of use, and interpretation. Therefore, it is somewhat risky for marketers to rely on fair use rules to permit their use of copyright content, and it is always a good idea to seek permission instead.
However, for those that are interested, the Intellectual Property Office has outlined some key matters that may arise when considering whether use has been ‘fair’. These include:
1. The nature of the use. For example, you may be considered to be using work fairly if it is for private study or exploration, for an examination or instruction or in various other circumstances, subject to conditions.
2. How much work has been taken from the original work, and whether that amount was proportionate or not.
3. Whether the secondhand use of the work negatively impacts the market for the original work. For example, has the original copyright owner lost potential revenue as a result of the re-use?
You can find more information about fair dealing and fair use exemptions in the Copyright, Designs and Patents Act 1988 (Section 29 & 30).
With the option to set your social media profile as either private or public, many of us may assume that media from public social media profiles is welcome to be used and shared if it is credited or links back to the original creator’s content. However, this is not necessarily true.
In fact, Instagram’s terms and conditions actually state that the user owns their own images and therefore has copyright over them (alongside Instagram). This means that, as soon as you share these outside of the platform or as your own, you may be infringing on copyright, even if you are embedding the content with a direct link back to the original content.
Therefore, as a general rule, it is good practice to consult with the terms and conditions of each particular social media platform to find out about what you can and cannot do with the content shared.
Whether you are creating graphics or using existing photos for your digital PR campaign, you should consider what content you can use and to what extent.
If you are using images you have found online to supplement your campaign, you should find out what use is permitted over these, or use photos that are either in the public domain or where the copyright has been given up. For example, if you have a Shutterstock subscription, you will have access to a whole host of images that you are entitled to use, as long as you give credit.
Even when creating your own graphics there are a few things you should be wary of, such as:
Whether your graphic is too similar or substantially the same design as one that has been created by someone else. Essentially, you need to ensure that your graphic is original enough. If it is inspired by existing or similar work, you need to ensure that it is transformative enough to not matter.
What images and logos you are allowed to incorporate into your design. For example, most companies and brands use trademarks to protect their slogans and branding materials so you may need to get creative and represent the brands in a different way.
The most common way to find out what you can and can’t do with certain datasets or images is to go through the terms and conditions. The Ts and Cs usually mention a certain license or explain any restrictions on use.
If you are still unsure after doing this, but feel that the content would prove really valuable for your campaign, it may be worth reaching out to the owner and asking for permission to use it for your campaign.
Reading the terms and conditions is often an arduous task, so to make it a bit easier to understand the legal language commonly used in terms and conditions, we have created a free to download our glossary of legal terms and their explanations.