generally exists automatically in all types of creative content. The purpose of copyright is to protect the author’s or artist’s intellectual creation in their work and provides the expectation that, unless licensed to a third party, they have the exclusive right to use their work and make money from it.
What can be protected by copyright?
- original literary, dramatic, musical and artistic work, including illustrations and photography
- original non-literary work, such as software, web content and databases
- sound and music recordings
- film and television recordings
- the layout of published editions of written, dramatic and musical works
Who owns the copyright in a work?
Generally, it is presumed that the creator of a work owns all intellectual property rights, including copyright, in it. However, this presumption is reversed where the creator is an employee or director who creates the work during the course of their employment or directorship.
It is important to determine who is intended to own the copyright in a work prior to its creation. This should be recorded in a suitable contract, i.e., a consultancy or services agreement or standard terms and conditions. Taking these steps at the outset of a relationship can help avoid a dispute later.
How is copyright protected?
arises automatically upon the creation of a work, there is no requirement for the owner to take any formal steps to benefit from the protection conferred by copyright (in the UK at least). However, all reproductions of the copyright-protected work should be marked with a copyright notice in the following format © [COMPANY NAME] [DATE]. All Rights Reserved. In other words, if ABC Limited created a graphic novel in 2018, the copyright notice should read “© ABC Limited 2018. All Rights Reserved”.
It is also good practice to maintain a version-controlled copyright register that includes the following information:
- title of the work
- who created it
- date it was first created
- current version
- date of last update
- hyperlink to the latest version of the work
How do I know if a third-party work is protected by copyright?
The safest approach is to assume that any work you come across is subject to copyright protection. This means that you would need a licence to use any third-party work that you might wish to incorporate into your business. Take the example of a photograph that is found by a Google search. That photograph may or may not include a copyright notice. Regardless, at the point of actuation, copyright protection will have attached to the photograph. As copyright protection in photographs subsists for the life of the photographer plus 70 years, there is a high likelihood that any photograph you find on the internet is protected by copyright.
Can I use third-party works in my business?
You can but only if you have a licence. Again, taking the example of a photograph, if you have a licence via a stock image site such as Shutterstock then you are free to use that photograph within the terms of a licence. You might also obtain a licence directly from the photographer. In some cases, photographs might be free to use via a Creative Commons licence.
Using a third-party work without consent via a licence is a risky business. There are a growing number of organisations popping out of the woodwork who are set up solely to extract inflated fees from copyright infringers. It does not matter if the infringement was innocent or incidental, these organisations are known to relentlessly harass and pursue copyright infringers.
What should I do if I do find that I have infringed copyright in a third-party work?
Firstly, you should immediately remove the work from wherever it is publicly visible. You should also keep a detailed record of your use of the work, together with screen shots, to use as evidence should it be required. If you receive a demand for payment, it is always better to engage with the accuser and try to negotiate a reasonable settlement fee. We have seen payment demands of £1,000 + being reduced to as little as £75 in some cases. In other cases, the accuser will not budge from their payment demands. In the case of the latter, we strongly recommend having your case reviewed by a lawyer and instructing preparation of a suitable letter of rebuttal.
What steps can I take to avoid being accused of copyright infringement?
We recommend the following:
- where possible, use your own images, text and videos
- when using third-party content, ensure that you have a relevant licence, contract, or terms and conditions in place with the copyright owner
- ensure that all copyright licences include an indemnity whereby the “owner” of the copyright in the work agrees to indemnify you should you be accused of infringing copyright claimed by someone else in the work
- always attribute the original author/artist to the applicable work
Get legal assistance from LawBite
If you find yourself on the wrong end of copyright infringement
allegations, we can help you mitigate your exposure. Copyright is a complex area of law and often infringement allegations are not clear cut. Our expert copyright lawyers will help identify any defences to infringement and negotiate a fair reasonable settlement in the circumstances, where possible.
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