Staying on the right side of copyright law

By Nicola Turner 

Copyright law creates a balance between the rights of the owner and the public’s interest. This area of law is becoming more and more important and relevant in our modern world, with the ever-increasing emphasis on digitalisation and the many social media platforms available. The challenges that this modern digital world presents to copyright laws are far-reaching. Some of you may not realise that using images from Google or images taken by a third party without permission (a very common mistake) violates copyright laws. Fortunately, there are some ways your business can avoid violating copyright laws and we have discussed these below.

Always ask Permission

A sure way to avoid a violation of copyright law is to simply ask for permission from the owner if you would like to use their image. Make sure the person you are asking permission from has the rights to license the image. When asking for permission, provide the owner with a web address of where the image is going to be placed and explain how exactly your business intends  to use it.

If you are granted permission to use the image, it is important that you know under what specific circumstances you are permitted to use it. Keep in mind that some owners may ask you to pay a fee before allowing you to use their image and in some situations this is understandable and fair. We recommend approaching the owner of the image in advance so that your business has time to hopefully obtain the image or else deal with any issues which may arise.

Credit the Creator  

If you are given permission to use a third party’s image, you will be provided with instructions from the owner on how to credit them when you post it. The instructions for using the image are usually found in the terms and conditions of the website displaying the photos. If there are no formal instructions, simply adding the owner’s name and link to their website may not be sufficient. If there is any confusion, we would recommend you contact the owner to clarify the issue so that you do not end up accidentally violating copyright laws!

Creative Commons license

An alternative to asking for permission is to search for and use images with a “creative commons” license. Images with this license are distributed or uploaded to websites by the photographers themselves and if they have this license, you do not have to contact the owner to ask for permission. However, make sure you carefully read and abide by the licensing terms and conditions stated by the owner as this can be a common trap.

Understanding Fair Use

Another way to avoid copyright violation is to use images where you can rely on the “fair use” or “fair dealing” defence. What constitutes ‘fair’ is considered on a case by case basis and essentially involves asking the question of “is this fair?” To know if this might apply to your company’s plans on using an image, there are four main things to consider: the nature of the image, the purpose of its use, the part used based on the image as a whole and the effect of its use on your potential market. These four “fairness factors” are not the only ones to keep in mind, and others factors may need to be given some consideration. If you are considering relying on the “fair use” defence, we would recommend you first speak with your lawyer, as this can be a complex issue and there can be many grey areas (like a lot of areas of law).

Your Right to Copyright

People who have copyrighted material have exclusive rights such as the right to distribute copies to the public for sale, the right to reproduce their work and the right to display or perform their work. If your company needs to copyright a particular business collateral, please contact us for formal tailored advice. We have extensive experience in dealing with copyrights, trademarks and patents and can give you the advice you need.

Please email us on law@connollysuthers.com.au or give us a call on 4771 5664 if you would like to discuss this further or have any other enquiries.