1. My business hired and paid a freelancer/small company to record a video/take a photo/create an image/create a logo/create content for the business’ website. Does my business own the copyright to this content?
A: A freelancer/small company engaged by a business to create original content is the owner of the copyright to that content, regardless of whether they were paid. For the business to own all or some of the ‘copyright rights’ to the content requires that the author of the content sign an assignment, assigning the copyright to the business. An assignment is a document transferring rights from the copyright holder to whoever wishes to own the copyright.
2. My business hired a web designer to create an original website. I, the business owner, wrote the content and articles. Do I own the entire website?
A: The author of the text (such as articles and general information) owns the copyright strictly for the text portion of the website.
This question is more complicated with respect to the elements of a website such as the layout, graphics, and any functionality. As mentioned above, absent an assignment, the business does not own the copyright to the website. Even so, the web designer may not have any rights to assign. Website designers commonly use and customize third-party templates, existing code, and software functions to make websites for their clients. This is the industry standard and makes the website creation process quick, easy, and affordable. Websites are rarely created ‘from scratch.’ However, the website designer cannot assign rights to content that they do not own and have not created.
In this scenario, the business owner’s primary concern should be on having an agreement (contract) in place with the website designer. Among other important provisions, the agreement should ensure that the website designer secures all relevant permissions and licenses to use third-party templates, graphics, photographs, and code. There should also be an indemnification provision to protect the business owner from claims of intellectual property infringement due to the website designer’s failure to secure the required permission. The business owner should engage an attorney to review any pre-existing agreement.
3. Does fair use protect my business if I use a small amount of copyrighted content created by a third party?
A: Fair use is merely an affirmative defense to copyright infringement and not a ‘right’ under copyright law. In response to a claim of copyright infringement, the alleged infringer may assert that the use was “fair” under the fair use analysis, and was not infringing. Attempting to pre-emptively determine if a use is ‘fair use’ is a fact-specific analysis. Commercial and business use (as opposed to not for profit, personal, or educational use) is typically not a favorable factor in a fair use analysis. Therefore, it is better to secure permission or a valid license from the content owner, rather than to assert a defense of fair use in response to a copyright infringement lawsuit.
4. Is it copyright infringement if I use an image from Pinterest/Facebook/Instagram on my business’ website?
A: Just because an image has been widely shared on Pinterest/Facebook/Instagram, does not mean that it is freely available to repost on a business’ website. While many businesses repost other’s work on their website or their social media feeds, this does not make it legal. For one, there is always the possibility that the content is licensed and there is no way to outwardly determine if this is the case. It is also important to note that citing the source of the image (attribution) will not prevent a claim of copyright infringement. This means that all businesses that take random online content and repost it on their website or their social media feeds are vulnerable to lawsuits for copyright infringement. Unlike individuals, businesses make good targets for these types of lawsuits, which are sometimes filed by serial litigants. It is usually a question of when and not if a business receives a cease and desist letter or is served with a complaint. As a rule, business owners should always secure written permission or a valid license prior to posting third-party content on their business website. If the source of the image cannot be determined to secure a license, then it’s safer not to use the image.
The business may also opt to hire a company to create original content and then secure rights by assignment.
5. I Don’t Need to Register My Copyright for Copyright Protection
A: It is unnecessary to register a work with the Copyright Office to have copyright protection under U.S. Copyright Law.
However, in most circumstances, it is necessary to have a certificate of copyright registration in order to file suit for copyright infringement. A pending copyright application is not enough and sometimes it takes 6 months to a year to secure the registration.
Ideally, a copyright application should be filed within 3 months of the first publication of the work or before infringement occurred. This ensures the right to claim additional desirable remedies such as statutory damages (up to $150,000 per work infringed) and attorney fees.
While copyright registration is generally straightforward, there are enough potential pitfalls to merit assistance from a knowledgeable attorney. When faced with a large volume of original content, a business may have trouble deciding which copyrights to register. Considerations for prioritizing works for copyright registration may include the value to the business, the cost to secure, and the time required to create.
Takeaways:
1. Secure a copyright registration for valuable, highly original, and labor-intensive copyright created by the business.
2. Secure a copyright assignment for original works created by a third party, agency or contractor for the business.
3. Have an agreement in place when hiring content creators (web designers, software developers) that are creating products for your business.
4. Ask for permission from copyright holders and not for forgiveness. Alternately, secure a license.
5. It is less expensive to commission and assign original content than to pay an attorney to defend in a copyright infringement action.