Did You Steal That? Copyright and Trademark Basics

You’ve seen this done before, right? A small business or company sees something online that they really like, it fits in with their brand image and audience, and they think, “I can totally use that!” So, they grab a screenshot, download it, change a couple of things like taking the logo off the original image and then put theirs on, and voilà! Share it.

Guess what? That’s theft. They’ve stolen the work of someone else and passed it off as their own. Intellectual property theft is theft.

Copyright and Trademark: The Basics

Many of us don’t necessarily think much about it. With the “Wild West” feel of the internet, it seems like a free-for-all. What’s the big deal? You grabbed a picture or meme from someone else’s page and dressed it up with your logo or a few words. A flower is a flower, a beach scene is a beach scene, right?

Not really. There are two basic rights centered around this discussion. Copyright and Trademark. Copyright is the protection of original works and/or authorship. This includes artwork, photography, computer software, books, movies, songs, etc. Generally speaking, if you created it, you own the copyright. If you take someone else’s original work and add a few words to it, in most cases that doesn’t transfer ownership to you. In other words: you’re not supposed to do that.

Trademarks are a little more specific – trademarks protect a word, phrase, or design that differentiates it as the source of particular goods. It’s called a “source indicator.” For example, you know the Pepsi logo is Pepsi and the Coke logo is Coke.

(Source: eMediaLaw.com)

The Digital Millennium Copyright Act

With the passage of the Digital Millennium Copyright Act in 1998, it became illegal to “circumvent technological measures that block access to copyrighted works and to distribute false information about a work such as the identity of its author and conditions for use.” The provisions are as follows:

    • Provide false copyright management information;
    • Distribute or import for distribution false copyright management information;
    • Remove or alter copyright information or
    • Distribute or import for distribution works containing known alterations of copyright management information. (source: FindLaw.com)

This explains why you can’t cut the logo off a picture you like and put your own on it.

What About Fair Use?

What about that funny meme picture you see all the time? That gets shared over and over again, who owns those?

Enter: Fair Use. The term gets tossed around this conversation as well. Here’s the skinny on it:

Fair Use stipulates that if you are using the meme for commercial purposes, such as advertising, sales, or other promotional purposes that you are potentially profiting from, you may find yourself in hot water legally speaking.

Getty Images is an excellent example of a company that vigorously defends and protects their content creators from the unlawful use of their work. Trust me when I tell you, you don’t want to get a notice from Getty Images informing you that you owe them $14,000 for your use of an image you thought you had the rights to use on your home page. (True story!)

The Right Thing to Do

But, you really like that picture and want to use it. What can you do?

  1. Do a little digging – can you find the original owner of the image? There are tools online you can use to search for the copyright holder such as PicScout Image Search. If you find them, have they published their licensing information?
  2. Ask. If you find the owner, reach out and ask. In many instances, a simple link or attribution (credit) is all they request for your use of the image.
  3. Familiarize yourself with Creative Commons licenses. There are many content creators who provide free use of their work with proper credit that they determine. Sites that have Creative Common images available include Flickr, Wikipedia, and Internet Archive.
  4. Go Vintage! Most copyrights expire after 70 years, and the Library of Congress website is chock-full of fantastic old photos and vintage advertisements that are free to use.
  5. Subscribe to stock photo sites and create your own! A wonderful free stock photo site we use is Unsplash.

Don’t Cheat

We always advise clients to err on the side of credit. There’s an ethical situation surrounding this conversation, and taking another person’s idea and passing it off as your own isn’t cool. It’s like cheating on a math test. Tempting, but don’t do it.