Make Your Communications Strategy Copyright-Friendly

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Your communications director says that every blog post has to have a picture with it. But is it okay just to peel some picture off the Internet? What about copyright, especially when there’s no budget for stock photos?

You’ve got some hilarious video from the karaoke party at the company’s annual retreat. But can you use it on the company’s internal newsletter? The employees all agreed to be filmed, that’s not a problem. But the song that you want to feature a performance of is “Brown-Eyed Girl,” and somebody owns that. Sure, it’s just for employees, but they might send it to friends, and you’re assuming you’ll upload the video to YouTube for ease of access, and then embed it into the newsletter.

Your latest press release is for a report that’s been given the thumbs-up by some impressive folks on their social media. You can quote all that stuff, can’t you? It’s Facebook, for Pete’s sake.

Never has your communications strategy been so central to your business. But with every new digital opportunity comes new copyright challenges.

You need to understand the term and concept of “fair use.” It’ll make your communication strategies a lot more copyright-friendly if you do. Fair use is the right to use copyrighted material — if it is used trans-formatively and in the appropriate amounts to the transformative use. “Transformative,” a term commonly used in judicial decisions around fair use, means to reuse with a new purpose.

Fair use wasn’t very important back in the dark ages before the 1976 law that put long-and-strong copyright into place. Back then, a lot of the world wasn’t copyrighted, license terms were fairly short and you actually had to ask for a copyright and then come back at the right time if you wanted a copyrighted renewed.

These days, copyright is default; once you type it, scribble it, write it on a wall with spray paint or design it on your computer, it’s copyrighted to you for 70 years after your death. So now, the whole world is copyrighted and yes, that includes everything on the Internet. Yes, even Facebook, Twitter and every other piece of social media. Some of this stuff might even be copyrighted to other owners than the original maker, of course.

Fair use also wasn’t always so easy to use, either, but two things have changed the landscape dramatically. First, since the publication of a seminal legal journal article by Judge Pierre Leval in 1990, judicial decisions have increasingly evaluated fair use according to the transformative standard. That makes for great consistency in interpretation.

Second, many communities of practice—filmmakers, teachers, professors, makers of open courseware, archivists and poets—have asserted consensus about how to apply fair use to get their work done, with codes of best practices in fair use. These consensus codes have improved both efficiency and creativity; in the case of documentary filmmakers, they’ve even changed insurance industry practice.

Legal scholar Peter Jaszi and I facilitated several of these, all of which are on the Center for Social Media website; the process is also described in our book, “Reclaiming Fair Use. This book features tips, backgrounders and even mini-quizzes to help you improve your fair-use competence, and gives insight to the logic used by all these communities to find their consensus.

Can any of the consensus codes on the copyright doctrine of fair use help your business? Well, any communication director probably wants to have the Set of Principles in Fair Use for Journalism at hand. A lot of what communication directors do, after all, is journalism, even when it’s aimed at a highly specific audience. If you’re making video on that website, definitely flag this one too: The Documentary Filmmakers’ Statement of Best Practices in Fair Use. If you’re producing webinars or doing workshops, you might be helped by what teachers had to say in the Code of Best Practices in Fair Use for Media Literacy.

Now, back to those examples; remember those Internet images for blog illustrations we mentioned at the beginning of this article? Keep in mind, pretty much everything on the Internet is copyrighted, just like everything else, because copyright law doesn’t discriminate about platforms. Check out how journalists think about unlicensed use of illustrations. Sometimes it’s okay, but not always. You must consider the context. If you want to get rid of the licensing question, try shopping for Creative Commons-licensed images, which generally are free for the uses stipulated in the license.

How about the karaoke party? Well, you can check out the first situation in the journalists’ set of principles, or you could look at how documentary filmmakers think about “incidental use.”  They too look at the context, and ask whether you have a transformative purpose. Ask yourself their questions, all listed in the documents, and answer them for yourself. You can then make your own informed decision.

How about the press release? A press release is a journalistic announcement, so the journalists’ principles will serve you well. You will be reporting on specific things people said about your report, and this is a kind of proof. The journalists’ second situation can be particularly helpful in this type of situation.

In each of these examples, you have easy ways to make fair use work for you. However, you’ll also need to observe the limitations that professional communities articulated.

Too much head-scratching? It’s easier than you might think. Fair use is where copyright meets the First Amendment; it’s the government’s guarantee that its grant of monopoly to copyright holders doesn’t pre-empt free speech. This isn’t my idea, by the way; the Supreme Court has said it twice in the last decade. So this is exercise of your First Amendment right. And like all exercise of rights of free expression, it is case-by-case (with an underlying logic), and situational.

When you start out making your fair use judgment calls, you’ll discover that you’ve been making fair use calls a lot without knowing it. In fact, you’ve been doing it ever since you were in school and quoted other peoples’ work in your homework. You’ll also discover that making those calls are much easier when you have the weight of a professional community’s consensus on your side.

Take time to get comfortable with your First Amendment rights under copyright. They don’t weaken your own valuable claim to your own copyright, they don’t hurt the core market for other peoples’ work and they do let you and your employees get your work done more efficiently within the law.


Additional Reading

Visualization Means Better Communications

GenderSpeak: Men, Women and Communication at Work


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