Beware of ‘free’ copyright licenses

published in McAfee & Taft tIPsheet | September 4, 2018

Copyright law provides certain exclusive rights to persons who create original works of authorship, including literary, dramatic, musical and other works. Copyright law specifically protects works of art, music, photographs, software and visual arts.

One increasingly popular business model is for an author or copyright owner to offer photographs, images or music for “free,” subject to specific attribution requirements or other use limitations that are easy to inadvertently violate. For example, the owner may require the user not only to provide attribution to the author, but also to provide links to various webpages and Creative Commons licenses. Alternatively, the owner will bury highly specific limitations in the fine print, such as provisions indicating that personal use is acceptable, but not if used on a website or uploaded to YouTube.

Some companies engaging in these tactics will include the word “free” in the company name or domain name to imply that use of the music or photograph is at no cost and with no strings attached. Then the copyright author/owner or licensee will enlist software bots to crawl the web to search for their copyrighted works. When such works are located, the shakedown begins. The company that used the copyrighted work is contacted, typically by e-mail, with a cease and desist letter that threatens to bring an action for $150,000 in statutory damages per work plus attorneys fees, but offering to resolve the claim for $1,000, $5,000, $20,000 or more depending on the number of “unlicensed” works. Although these settlement demands are not typically outrageous, they are often many multiples of what the copyright owner would typically receive for licensing or selling his or her work.

The company on the receiving end of the shakedown is not without defenses. One such defense is that the use made by the purported infringer was non-infringing fair use. Courts considering whether a use is “fair” balance the following factors: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market. Courts have concluded that some common uses, such as using small, low-resolution thumbnails that serve as links, creating transformative works, and providing information regarding a matter of considerable public interest, are fair and do not constitute infringement.

But, alas, when faced with the unpleasant decision of writing a check for a few thousand dollars versus spending many multiples of that to prove that the copying was authorized or constitutes fair use, the business owner or legal decision-maker typically opts to pay the copyright owner. In cases where the copyright owner has engaged in the misleading tactics described earlier, a cut of about 40-50% typically goes to the law firm, collection agency or service providing the enforcement efforts.

So what should a business owner do to avoid unintentional copying? First, before using a copyrighted work, make sure it is appropriately licensed. There are many legitimate companies and services that provide copyright licenses for a large number of copyrighted works, including music and photographs, at a reasonable cost. Second, be skeptical of “free” services. Many of the companies offering free services are engaged in misleading would-be users, or utilizing restrictive license limitations that could easily put a company in breach of the “free” license. Third, if a “free” work is used, carefully read the fine print and understand the limitations of use—in many cases you will not be able to use the work as desired, you must comply with strict attribution or other requirements, or you must avoid certain platforms. Fourth, consider providing a link to the source of the work, as opposed to physically copying and displaying the work. Finally, think before you or someone with your company uses right-click copy or clicks on a download link, even on a “free” site.