The age we’re living in allows us to live with computers. It makes studying easier, it makes working more bearable.
In this generation, how many times have you worked on something in front of the computer? E-learning, for example, has changed how training is delivered—but in very good ways indeed.
In the many projects, papers, and reports that you’ve created, how many of them contained content that was ‘fairly used’? Were any of these—text, videos, photos—taken without the original creator’s permission?
Defining corporate liability
In 2013, international news agency Agence France-Presse and visual media company Getty Images paid $1.2 million in damages to freelance photojournalist Daniel Morel, when the latter sued them for illegally using his photos of the catastrophic 2010 Haiti earthquake posted on his Twitter account.
Although posting, sharing, or retweeting is allowed in this case, the commercial use of photos as committed by the companies was ruled illegal by the jury. According to the New York Times, this ruling strengthened the rights of photographers in the age of social media.
Corporate liability is very clear in this example. By definition, corporate liability shows the extent to which any corporation can be held liable for the wrongdoings of the natural persons under their employment.
The companies in question should have practiced due diligence in producing content containing pictures taken by someone else. Sadly, it is one good practice that is oftentimes taken for granted, and a very expensive mistake indeed.
According to Stanford University Libraries on Copyright and Fair Use, obtaining permission involves 5 basic steps. For the purpose of easily ascertaining if your use is ‘fair’ or otherwise, we have translated the 5-step procedure into relatable questions:
Is permission needed?
The first step is often the most confusing. All you have to do is determine if there is a need to ask permission.
Is a formal agreement necessary, or can you do without permission? Is the content protected by law? Would your intended use of the content constitute a violation?
The answer isn’t always clear. You have to carefully study the risks in using such material.
Every country has its own laws protecting intellectual property. In the US, for instance, the rule of thumb is that any content published after 1923 is protected by copyright law.
The two exceptions to this rule is that (1) when the creator or author made a technical mistake, such as failure to renew the copyright, and (2) when the content is not eligible for copyright protection.
Any work published or created before 1923, as stipulated by US legislation, is considered public domain. Hence, such materials produced at this time and before may be used without obtaining permission.
Who is the owner?
So you’ve determined that the content you’d like to use needs permission first. How exactly can you identify who the owner is?
The second step is as crucial as the first, but a lot easier.
You can locate the rights just by reading the copyright notice. Paperbacks, e-books, and text-based content display the notice quite prominently as (c) or ©, or it may display as “Copyright 2019, Stark Publishing House”.
Pictures may display the © symbol, but you can also determine a copyrighted photo if a watermark is displayed. A watermark is a logo or text intentionally overlaid by the photographer or artist on the photo itself.
As for videos, it is safe to presume that all videos found online (and not just on popular video-sharing platforms) are copyrighted. Unless it is shared to the public domain, someone else obviously produced, created, and directed it. The credits often display the rights, but it online sharing platforms, there is a feature where you can view the copyright notice and who owns it.
What rights are needed?
Once you know who the owner is, you’re almost halfway done in obtaining permission.
The next step is determining what specific rights you need. Every copyright owner has control over the rights to his work, such as the right to reproduce, distribute, or modify—among many other rights.
Think about the goal of your current project or work. Do you need to embed an animation in your e-learning training tool? Do you plan to put images in your instructional e-book? Do you want to quote a paragraph in your promotional video?
How can I contact the owner and negotiate for a payment?
Now that you know what rights you really need, you can proceed to contact the owner and do the actual negotiation. This step often takes the longest and may take up to 3 months or longer depending on the terms.
It’s best to contact the owner and ask permission before you even start any actual work. If the owner learns that you’ve started your project, fees will obviously rise. And if you’ve already completed it, expect an even higher cost.
In some instances when your work is for humanitarian, non-profit, or educational purposes, the copyright owner will gladly agree to share the rights without cost. A rising talent or a budding artist may also be enthusiastic for exposure that any payment may be waived.
However, If the copyright owner is aware of the profitability of your work, you will have to bargain for a price that you feel is justified. The worst that could happen is that if you don’t get the permission, you may have to redo or even cancel the work.
How can we formalize our agreement?
The last step involves formalizing all your negotiations. The best way to cement an agreement is to put it in writing.
When working on something that has a lot of legal implications, it is best practice to produce a written contract. Copyright suits can be very grueling and expensive. While oral agreements can seem easy, especially for two parties who seem to be initially comfortable with each other, disputes may still happen.
Going to court with nothing but a verbal agreement is a weak case, and it is almost always difficult to prove any allegation without a signed document.
When a company uses a material created by another, doing these 5 basic steps makes a lot of difference, even if it seems too conservative for some. After all, the goal is to minimize, if not eradicate, corporate liability. Any corporation who takes this seriously should take time to obtain permission in a legal and appropriate manner.