Panelists at yesterday’s session titled "What
Do You Do When a Copyright Issue Lands On Your Desk?" warned
registrants about the risks of using freely available content
on the Internet, how to minimize the chance of getting into a
copyright infringement situation and what to do if it comes
your way. The session was moderated by Christopher Kenneally of
the Copyright Clearance Center.
Maury Tepper of Tepper & Eyster provided an overview of
copyright law, noting that there are several works and rights,
such as the distribution right, which are protected under the
law. "You need permission to use each," he said. He also said
copyright is territorial in nature, so the rules vary by
jurisdiction. Failure to obtain permission exposes you to an
infringement claim but there are defenses available. The
defense often cited is fair use, applicable in the U.S., or
fair dealing in common law jurisdictions where certain actions,
such as referencing the work, are expected to be able to rely
on it. Ultimately, only a court can decide if you qualify for
any of the defenses or infringe.
In-house counsel should take care regarding what is included
in the company’s marketing documents as it could
be infringing, and it is difficult to claim fair use if the use
is in commerce. "It is a subjective examination and some
factors may be considered more important than others," Tepper
said. "That it is freely available online doesn’t
mean it’s free to use," warned Gretchen Klebasko
of Legg Mason. This was in reference to legitimate sites which
may display infringing content.
Public perception can also influence the outcome of a case,
according to Tepper. Make sure you can genuinely argue fair use
if you are going for it. "It’s best to get
permission. That is the easy way to avoid problems," he said.
Panelists agreed that in-house counsel should educate employees
to respect copyright in whatever they do. "Make it part of your
corporate culture, include it in your policies," Klebasko
If you are the copyright owner, you can take a soft or hard
approach, depending on who is on the other side. Cease and
desist letters should be drafted wisely as they could end up
online and cause reputational damage. "You don’t
want to be seen as a copyright bully. Word it in a way that you
can defend it, and spell the names correctly," Klebasko said.
"Also make sure you don’t have a business
relationship with the company you’re sending the
letter to," she added.
Randi Singer of Weil, Gotshal & Manges explained that
copyright and brand owners can use the Digital Millennium
Copyright Act (DMCA) to take down infringing material online.
Singer said there are steps involved, including a deadline for
responding to the alleged infringer, so you should be careful
when submitting a notice. "You have to consider fair use before
you send a DMCA notice," Singer said. Copyright enforcement
rules and processes are different in the EU, she added.
With the proliferation of both legitimate and
infringing content online it can be difficult to trace the
owner. Use common sense, said Singer. For example, a link to an
image may lead you to a professional
photographer’s website—which should get
you thinking that you need permission from him or her. Creative
Commons is a source for images, but there are terms and
conditions depending on how you want to use them. There are
different industry licensing bodies, such as the Motion
Picture Licensing Corporation, to approach for licenses. Using
GIFs on social media could land you in trouble too. "You
don’t know if someone will assert his or her
copyright in it. Also there is a chance it is licensed and
you’re more likely to be a target of a lawsuit
than a 13-year old," warned Tepper.