What You Need to Know about Copyright and the Internet
With so much content being shared online these days, how do you stop your work from being copied? And where does your work stand with copyright law?
We asked renowned Australian intellectual property lawyer and author of Owning It: A Creative’s Guide to Copyright, Contracts and the Law Sharon Givoni, what every creative needs to know about protecting their work in this retweeted, re-pinned, re-grammed world...
What are some of the legal issues facing creatives today in our increasingly online world?
With the fast moving landscape of digital technology it’s not uncommon for people to treat the internet as some kind of ‘free for all’, separate from the law. This is not so, and potentially serious consequences exist.
Historically, copyright existed as a way to reward creativity and encourage learning. Instead, some argue that the law has gone astray with the focus being on ownership and money with little or no reference to any social or cultural reason behind it. Whatever the case, creative people need to understand that just because you are on the Internet doesn’t mean you can be more relaxed about the law.
What is the first rule of copyright law?
The first rule: Don’t copy!
In an environment where digital versions of your work can be accessed by anyone anywhere, designers’ work can often be copied or used in ways they have not consented to. It is a myth that whatever is on the Internet is free for the taking. In reality, designs, images and written works (and indeed any content) published online are usually protected under copyright law. The Copyright Act gives copyright owners the exclusive right to post their work online, and to ‘exploit’ that work in any way they wish. This means they have the right to sell the design, use the design, publish the work on the internet or authorise others to use it. If you use a design without permission, this may be an infringement of that owner’s rights.
With books like ‘Steal Like an Artist’ encouraging creatives to embrace or ’steal’ their original references and use them to make something better, how do we know 'how close is too close'?
If you use another person’s copyrighted work without their permission for your inspiration it’s difficult to know how much exactly you can “take”. Whether the design you created is too similar to the other work to avoid infringing upon the other work’s copyright can be a difficult question, and the answer is a complex one. Unfortunately no bright line rule exists to determine when an artist has gone beyond ‘borrowing’ and has ‘copied’ something instead. Contrary to popular belief, there is no rule that if you alter a work by 10% (or some other arbitrary amount) that you will avoid copyright infringement. A court assessing whether infringement has occurred will consider each situation on a case-by-case basis.
What if you don’t know who owns the copyright?
In Australia, even if you cannot identify the copyright owner and can show that you made efforts to locate them, this in itself will still not safeguard you against a claim of infringement. This is something many people do not realise.
Where do we stand as creatives in the wild wild west of the internet?
Despite the law’s protection, the Internet remains a dangerous place when it comes to protecting your own work globally. If you post your designs online, you are exposing yourself to the risk that anyone around the world may copy and use your work without your knowledge or permission. If you discover that someone in China has begun reproducing your designs, it could be very difficult (not to mention expensive) to make them to stop, even if the law is on your side.
What can we do to protect our work from would-be copycats?
Firstly, I will be honest – there are no black and white rules here. The best thing to do is to be proactive and practical in protecting your designs, such as by using watermarks or digital marks on images of the designs you post online. There are various software products available too. This can serve as a simple and effective deterrent for those who are tempted to use your work.
Another practical measure you can take is to use the “©” (Copyright) symbol with your work, followed by your name and date. This is a good way to let others know that you own the work, and that if anyone else wants to use your design they need to obtain permission from you first. Other measures, including inserting metadata or uploading low-resolution images of the designs, may also limit the risk of someone using your work.
So what should we do if we find someone has actually copied our work?
‘Be careful’ is the first piece of advice that I have as sometimes we can jump to conclusions when we see something similar but the truth is that under Australia’s copyright laws, it is perfectly okay for someone else to independently create their own work. In other words, yes, coincidence is allowed.
So just because someone creates a work that is similar to yours that does not mean you automatically have legal recourse to stop them. It is only copying that the law prohibits. Although it may be tempting to vent on Facebook or Instagram about the fraudulent “copier”, take a deep breath before you post something you may regret. That said, the first thing you should do is collect and record any evidence of what you think is someone else copying you.
Depending on how serious it is you might want to use a lawyer or write to them yourself asking them to explain the situation. Each case will be different.
Is all online content protected by some form of copyright?
No, not all online works are protected by copyright. The copyright of a work may have expired (copyright generally lasts for the life of the author plus 70 years), or the work may have been released into the “public domain” and is now free to use.
Some material is also available to use under a what is known as a “Creative Commons” licence although you will still need to adhere to certain requirements. There are a number of different types of “Creative Commons” licences so be sure you understand which one applies and what you are allowed to do.
Generally though, it is always safest to ask the author personally before reproducing anything you find on the internet and be sure they are happy with what you are reproducing it for even if you think it is ‘free to use’.
Unfortunately creatives regularly see their work reposted on social media without any credit or references (…Pinterest we’re looking at you!), what do you recommend here?
It is probably not an understatement to say that artists across all creative mediums often have a love/hate relationship with social media.
While it can be a wonderful platform for the global distribution and recognition of work, the downside is the potential for the work to be copied, changed and circulated broadly with no attribution back to the owner, as this could result in lost revenue and a lack of recognition. Posting your designs on social media can also have other consequences that you need to be aware of. It is always a good idea to ensure you understand the terms and conditions and content policies of each of the social media platforms you use.
The general rule with social media policies is that you will own copyright in your own content that you upload. Although posting something via social media may not mean you are giving away your copyright, it does mean that by virtue of agreeing to the terms of use of the site (upon signing up to the platform), you will generally also be granting the site operator a licence to use your work in many different ways.
Do keep this in mind when you upload your artwork or designs online.
Are there any other legal considerations for designers posting their work online?
Another thing for designers to remember is that even if the you created a particular work, if you have sold or licenced it to someone else, you may no longer be able to use it to promote your own work. If someone else owns it, you could be infringing the copyright in your own work! It’s always a good idea to check when you are creating work for someone else whether if you are still able to use it for your own promotional purposes.
Further what you say or do online can be used against you in the same way as can any other form of published communications or media. What you post on social media, your own blog or your website may potentially infringe someone’s copyright, amount to defamation, mislead or deceive people, or be subject to contractual obligations. As stated above, uploading content or posting comments in a hurry may also leave behind a trail of destruction that can be hard to repair.
Digital content is frequently archived, meaning that computer forensics experts can retrieve content posted online years later, even after it has been ‘deleted’.
As the saying goes, ‘the Internet never forgets’. Be careful. You have heard it before but I’ll say it again: Think before you type.
Should designers limit the amount of work they share online?
It is clear that the Internet carries benefits and risks for designers. While some people may hold fast to the idea that being online is the only way to be recognized in this day and age, that same online presence raises a raft of legal considerations in its own right.
TAKEAWAY TIPS
· Just because a graphic design is posted on the Internet will not mean that copyright protection is lost.
· Be careful what sources you use for inspiration. If you find a picture or photograph on the internet, and slightly alter it to make it ‘your own’, you could still infringe someone else’s copyright.
· Take practical proactive measures to stop others from copying your designs – even if the law is on your side, going to court is not a walk in the park.
· Uploading your content onto a social media platform could give that site a licence to do what they like with it – read the terms.
· Statements made on social media about competitors can be found to be misleading or defamatory. Think before you type.
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