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Law Practice Management


Lawyer Marketing: Copyright Considerations
By Tudor F. Capusan, Esq. & Ilya Kushnirsky, Esq.

Law firm marketing often relies on authoritative educational materials for clients. Does it matter whether these materials are also aesthetically pleasing? Whether you are designing a website, writing a blog, sending out newsletters, or mailing holiday greetings, a beautiful presentation will make a lasting impression on your clients. This short guide is designed to give you succinct practical tips on how to use content in a way that minimizes your exposure to copyright liability. We classified content into three categories that indicate an increasing level of restrictions and precautionary measures you should take before deciding to use the content.

1. Content you can usually use without restriction
A. Original content you've created from scratch

If you created it from scratch, you own it and can do what you please with it. You can copy, distribute, display, sell, license, or destroy your work.

Practical Tip 1 - when you collaborate with others - If you are the kind of lawyer who has an artistic inclination and you want to get involved in the creative process, make sure to negotiate an agreement with your collaborators to make it clear whether the work will be jointly owned, or whether you will allocate ownership in a different way. These discussions can be uncomfortable, but it's a lot easier to have them before actual issues arise.

Practical Tip 2 - when you use pictures of actual people -Get written permission (model release forms) to use people's likenesses whenever possible. This may protect you from legal claims that relate to false statements, invasion of privacy, or commercial uses of the person's likeness and image. You generally don't need a release to use a person's name or image for editorial purposes, such as when informing, educating, or expressing opinions protected by free speech. If you purchase the rights to use an image of a person from a stock photography website, make sure that you receive a guarantee that release has been obtained.

B. Content your employees create for you

The content your employees create for you belongs to you (or your firm) if created within the scope of employment. For example, if you employ creative staff, then the law firm owns the content created by staff. This is an exception to the general rule that the creator of the work is the author.

C. Content you purchase outright

Let's say that you want professional pictures on your website and you pick out some pictures from your friend photographer's portfolio. Simply paying the photographer for pictures will not transfer the rights in the pictures to you. To gain rights in those pictures, you must sign a written assignment. If it's not in writing, the transfer of ownership has not occurred. As a practical matter attorneys don't purchase ownership outright because it is generally easier and cheaper to obtain licenses from stock photography websites.

D. Public domain content

Content that is in the public domain belongs to everyone, so you can use it however you please. Note that if you modify a public domain asset sufficiently, you can copyright the resulting work yourself. So what's in the public domain? The only bright line rule is that content published prior to 1923 is in the public domain. Also, anything that has been expressly dedicated to the public domain belongs there. Otherwise, the public domain area of law is very complex and technical. There are search engines that can help you find public domain assets, but be careful because, as a practical matter, it can be pretty difficult to tell reliably whether content is truly in the public domain.

2. Content you can use with restrictions

A. Content for which you've obtained a valid license

Your license agreement will spell out what you can and can't do with this content, so read the agreement carefully. Before you pay for the license, make sure that the licensing terms will allow you to use the content in all of the ways you need.

Practical Tip 3 - when the owner allows you to use the work for free -Permission to use content for free is still a license, so make sure you get it in writing and that you use the content in accordance with the agreement.

Practical Tip 4 - when you use "royalty-free" images or video- Despite the misleading label, you cannot use this content freely. "Royalty-free" does not mean free. The term simply means that you pay a flat fee upfront to use the content as specified in the license as opposed to paying royalty fees for each use. It is a marketing term designed to attract you, but it is still a license, and you still have to pay for it.

Practical Tip 5 - Creative Commons content - Again, you can't use this content freely. Although you do not have to pay for it, you are still bound by the Creative Commons license terms (of which there are different types). That means you can only use these assets in particular ways that the content creator has approved. Each asset subject to a Creative Commons license should have a license icon. You should click on it to read the restrictions.

3. Content you generally cannot use without paying or getting permission

Copyrighted content - Unfortunately for users, most content falls into this category. The owner of a copyrighted work has the exclusive right to use the work. You can contact the owner to request permission to use it. Barring that, you can usually license it for a fee or buy it outright.

Derivative works - These are works that are derived from an original work, hence the term "derivative." Only the owner of an original work can make derivatives of that work. As part of the creative process, you can certainly look to others' work for inspiration, but you can't modify someone else's work, even if you provide attribution.

4. And finally, a couple of words about fair use

Fair use is a great idea, but in practice its inherent subjectivity, as well as its status as an affirmative defense, make it dangerous to rely on. See the Resources section below for a couple good starting places to learn more about fair use. The Center for Social Media site contains best practices guides for various media industries, which is a great place to start. As a rule of thumb though, if you plan to lean on fair use, consult with a copyright lawyer first to help determine your level of exposure to a lawsuit.

Resources:

Fair use
American Library Association's fair use evaluator
Center for Social Media's fair use best practices guides

Creative Commons
Creative Commons
WikiMedia Commons

Terms of service
Electronic Frontier Foundation's terms of service tracker

Tudor F. Capusan is the president and founder of Tudor Law PC. His firm is committed to responsive and superior legal support in the areas of business and intellectual property. He received his Juris Doctor degree from Indiana University Law School where he focused his studies on intellectual property and health care law. Tudor is active in a number of professional organizations including the New York City Bar Association, the New York City Bar Chorus, and the New York County Lawyers' Association. In his spare time, he likes to play guitar and to do pro bono work for the Volunteer Lawyer for the Arts (VLA) program that supports artists with their legal needs.

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This page contains a single entry from the blog posted on March 4, 2013 9:31 AM.

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