with permission: From
the Nolo.com Self-Help Law Center
Think you can use someone else's work on your website without
a licensing agreement? Think again. The Internet has made it
possible for anyone with a computer and modem to become a Web publisher.
But even though technology has made information more accessible to
everyone, copyright and trademark laws still apply to Web publishing
and websites are common targets for infringement lawsuits. Here are
some tips that can help you avoid legal trouble when you want to use
someone else's work on your website.
Assume It's Protected
It is wise to operate under the assumption all material is protected
by either copyright
law unless you have good reason to know that it is not. Reproducing
someone's copyrighted work or trademark without their permission is
known as infringement, and it leaves you vulnerable to lawsuits from
the copyright or trademark owner. Lawsuits are even more likely if
you stand to make any money off the use, such as unauthorized posting
of copyrighted song lyrics on your site to increase traffic and attract
advertisers. Uses like this are likely to bring record companies knocking.
As a general rule, any original work--whether text, visual art, photos
or music--is protected by copyright law, which means that you may
not reproduce it without permission from the copyright owner. It doesn't
matter if you indicate who the copyright owner is; you're not allowed
to reprint (or distribute, adapt, perform or sell) the work without
the owner's authorization.
permission is often needed to reproduce a trademark, including any
word, symbol or device that identifies and distinguishes a product
or service--such as the word "McDonald's," the distinctive
yellow arches, or the Ronald McDonald character. If your use of a
trademark is likely to confuse customers, then chances are it would
be an infringement. But even if customers aren't likely to be confused--such
as using the name McDonald's for your tax preparation service--owners
of famous trademarks often guard their trademarks aggressively, so
it's best to play it safe and pick a different name.
may not freely use someone else's work simply because it has been
posted on the Internet (a popular fallacy) or because it lacks a copyright
or trademark notice (another fallacy). Whether you find the material
online or off, permission is generally needed to reproduce text, artwork,
photos and music.
Read Click-Wrap Agreements
Many companies offer artwork, photos and other materials for re-use,
alternately called clip art, royalty-free work, copyright-free work,
shareware or freeware. Do not assume that these materials can be distributed
or copied without limitation. Read the terms and conditions in the
"click to accept" agreement or "read.me" files
that usually accompany such materials to be certain that your intended
use is permitted. One company failed to honor the terms of a click-wrap
agreement and was found liable for illegally distributing three volumes
of software clip art.
3. When In Doubt, Seek Permission
Many webmasters manage personal websites or small organization sites--for
example, a site for a school tennis team. Do copyright laws apply
to these small or personal uses? For example, is permission needed
to reproduce a photo taken by a club member, a friend or a relative?
The short answer is: "Legally, yes, practically, maybe."
Copyright protection extends to any original work regardless of who
created it, and permission is required for reproduction, display or
distribution of the work. Getting explicit permission from the copyright
owner is the best way to avoid a lawsuit. If the webmaster is confident
that the copyright owner has consented to the use, particularly if
the copyright owner is a friend or relative, the concern over a lawsuit
diminishes, as does the need for a formal written permission agreement.
An oral consent is valid, although some sort of written consent (even
an email) is preferable because it will be easier to prove if a dispute
4. Know Your Site Statistics
Copyright issues on the Web are constantly evolving and the fees for
permissions are often arbitrary. Fees can range from $50 to several
thousand dollars depending on the use and the site. A licensing fee
may be based on the number of hits per page, number of visits, or
the location of the page within the website--for example, the homepage
versus an archived page. Sometimes the fee depends on whether the
site is informational (for example, a medical site sponsored by a
nonprofit university) or commercial (say, a medical site sponsored
by a pharmaceutical company). Know your website facts before seeking
5. Pay Less
You can save money on fees by keeping your requests as narrow as possible.
For example, don't ask for "worldwide rights, all languages"
if you only need English. And you can sometimes save money by acquiring
multiple items from one source. In some cases, you may also be able
to lower your fees by offering to pay up front instead of waiting
30 or 60 days.
6. Watch Your Links, Frames and Inlining
Web technology has created a number of novel ways to present information.
Linking, framing and inlining are common methods of connecting to
the information at other websites, and all carry the potential for
getting into permissions trouble. Here's a brief description of each
of these methods and what to watch out for.
Most of us are familiar with clicking on a link to go to another website.
Common as links are, including them at your site isn't 100% risk-free.
Deep links in particular can be problematic. A deep link to another
site bypasses its homepage and takes the user directly to an internal
page. This practice angers some website owners who do not want visitors
to bypass information and advertisements at the home page. In 1997,
Ticketmaster sued Microsoft over deep links to Ticketmaster's ordering
forms. The case has not yet been resolved, but it points to the need
for care in this area.
is the process of dividing a Web page into separate framed regions
and displaying the contents of someone else's site within a frame
at your site. Generally speaking, site owners don't like having their
content framed at another site, particularly without permission. At
least one court has considered framing to be a copyright infringement,
and in another case, CNN sued a news website that framed CNN news
content. Under the terms of a settlement agreement, the news website
agreed to stop framing and instead use text-only links.
(sometimes referred to as "mirroring") is similar to framing,
and involves the process of incorporating a graphic file from one
website onto another website. United Media, the copyright owner of
the Dilbert comic strip, pressured a computer user into halting daily
inlining of daily comic strips taken from the United Media website.
all forms of linking, framing or inlining are illegal. As a general
rule, legal claims are most likely to arise if copyrighted material
is modified or if customers are confused about the association between
the two sites or the source of a product or service.
Don't Count on Fair Use: It's Not Always Fair
Fair use is a copyright doctrine based upon the principle that the
public should be entitled to freely use portions of copyrighted material
for purposes of commentary, criticism or parody. In its most general
sense, a fair use is any copying of copyrighted material done for
a limited and "transformative" purpose such as to review
a text or make fun of a pop song. For example, if you wish to write
a review of a novel, it would be considered fair use to quote a portion
of the novelist's work without asking permission.
The difficulty in claiming fair use is that there is no predictable
way to guarantee that your use will actually qualify as a fair use.
Millions of dollars in legal fees have been spent attempting to define
what qualifies as a fair use. There are no "definites,"
only general rules and varying court decisions. That's because the
judges and lawmakers who created the fair use exception did not want
to limit its definition too narrowly. They wanted it--like free speech--to
have an expansive meaning that could be open to interpretation. You
may believe that your use qualifies--but if the copyright owner disagrees,
you may have to resolve the dispute in a courtroom. Even if you ultimately
persuade the court that your use was fair, the expense and time involved
in litigation may well outweigh any benefit of using the material
in the first place.
learn more about when a use is likely to be considered a fair use,
Copying is OK--The Fair Use Rule.
Remove Unauthorized Material
If someone complains that you are using material on your website without
proper authorization, you should immediately remove that material.
In the case of unauthorized uploads, downloads or links, you should
disable access to the offending material or link. This is not to imply
that you should cave into every complaint, but you should remove the
material while you investigate the claim and, if necessary, talk to
a lawyer. Courts often respond favorably to attempts to "contain"
the damage. On the other hand, continuing to use material after being
notified that you are violating someone else's rights may aggravate
the claim and increase your chances of having to pay money to the
owner of the work.
Removing infringing material is an element of a 1998 law establishing
that an Internet Service Provider (ISP, the company that hosts the
website on its computer server) can avoid liability by following certain
rules including speedy removal of the offending material. You can
view or download the text of this law at the U.S. Copyright Office's
Click on "The Digital Millennium Copyright Act" and review
Disclaimers May Help
A disclaimer is a statement denying an endorsement of or affiliation
with another site or company. For instance, if your website posts
reviews of software and offers links to resellers, you might post
a disclaimer in a visible place on your site to the effect that your
site does not endorse and is not affiliated with any of the software
manufacturers or resellers listed at your site. A disclaimer is not
a cure-all for infringement but if a disclaimer is prominently displayed
and clearly written, a court may take it into consideration as a factor
that limits damages in the event of a lawsuit. For example, in a case
involving a dispute between two websites for restaurants named Blue
Note, one factor that helped the lesser-known restaurant avoid financial
liability was a prominently displayed disclaimer stating that it was
not affiliated with the more famous restaurant.
10. Bookmark Collectives
The most useful sources for permission information are copyright collectives
or clearinghouses. These are organizations that organize and license
works by their members. For example, the Copyright Clearinghouse and
icopyright provide permissions for written materials. BMI and ASCAP
provide permission for musical performances. National Music Publishers'
Association provides permission to reproduce songs. Corbis, Archive
Photos and Time, Inc. are among several collectives that grant permission
to use photographs. Art Resource and the Visual Artists and Galleries
Association (website under construction) grant permission for famous
artwork. The Cartoonbank is one of several collectives that licenses
cartoons. Even if you don't license from these sources, you can often
find valuable research information in the event you need to speak
with a songwriter, artist or photographer. ©
2000 Nolo.com, Inc.