“Curation” versus Fair Use: How to keep your content safe

fair use

By Kerry Gorgone, {grow} Contributing Columnist

“Content curation” is a powerful tool for marketing. By sharing someone else’s relevant, helpful content, you prove to your audience that you care about helping them—not just boosting your own site traffic.

But when does “curation” turn into copyright infringement? Too often, people will copy/paste an entire article onto their own site, then become indignant when the original author asks them to take it down.

This is from an actual email exchange with an agency website that did just that:

If you feel this is somehow in violation then feel free to waste your money and have your lawyers contact me. But be assured that its [sic] a two way street and I would advise you contacting direct next time before slandering us with a false statement like you did on our blog.

I am honestly shocked at your discord, the usual response we get is a ‘thank you’ and often an offer of a guest blog. We have provided both valuable links and distribution through our channels.

You’re “shocked” that someone didn’t thank you after you copied the entire text of their article and posted it on your own site? I find that difficult to believe, but let’s assume that some people genuinely don’t understand curation, copyright, or fair use.

In our litigious society, you MUST understand the difference between helpful curation and using content in a way that breaks the law. It boils down to understanding the concept of fair use.

What is Fair Use?

Fair use is a defense to a claim of copyright infringement. Just because you give somebody credit doesn;t mean it’s legal. Many people say that their use of someone else’s creative work is “fair” in a disclaimer post on the bottom of the page, as though that will shield them from liability. Only it won’t.

You only get to raise the “fair use” argument once you’ve been sued (and spent money on legal fees to defend yourself against the copyright infringement claim).

If you’ve never been sued, let me give you a visual: think about what it would look like if your business started hemorrhaging money, and nothing could stop the bleeding. Not a good scenario.

Keeping your content safe

There is no specific amount of someone else’s copyrighted work that you can always legally use. There are many “copyright urban legends” asserting things like “you can use 30 seconds of any movie without worrying” or “you can use 10 seconds of any song before you have to worry about copyright.” There simply is no magic number in a regulation somewhere.

For text, there is no set percentage of a work you can use without permission: whether the use is “fair” (and therefore legal) depends on the nature of the use and the specific facts of each case.

Bottom line, you can’t know at the outset whether your use of someone else’s copyrighted work constitutes “fair use” in the eyes of the law.

Once you’ve been sued for infringement, the court applies four factors to the facts of your case to assess whether the use was “fair:”

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Here is the big concern: Did you profit from using the other person’s work? Did you sell posters of an artist’s painting, or publish a book that’s really just a compilation of other people’s blog posts?

And how much of the other person’s work did you use? A few key phrases to entice people to click the link to the original post, or the entire text of the post, word for word?

The court will also look at whether your use of the content undercuts the market for the creative work. If you’re selling prints of someone else’s photo, you’re obviously impacting an opportunity to sell the original prints.

By contrast, if you share a 30-second video of your adorable baby racing around the kitchen and dancing to a Prince song, are you undercutting the market for “Let’s Go Crazy?” Doubtful. And the Ninth Circuit U.S. Court of Appeals agrees. 

But if I re-post your entire article on my website, there will be no reason for anyone to visit your website. I’m essentially hijacking your site traffic. And linking to your original post in my carbon copy doesn’t make up for that: no one’s going to click that link when they can read the entire article without clicking.

Reposting someone else’s article word for word is not curation: it’s copyright infringement.

Safe curation

THIS is curation: I publish a blog post in which I say “Ann Handley raises an important point about brand bias in storytelling today on her blog,” with a link back to her site.

In this instance, I might use a small snippet or quote from Ann’s article, but I’m clearly not trying to steal her traffic. In fact, I’m actually trying to drive more traffic to her article. This is a use of content much more likely to be deemed “fair.”

Using parts of someone else’s work to criticize it or comment on it is also more likely to be fair use. It’s the copyright equivalent of saying “this stinks: smell it.” You’re not trying to take credit for the smelly stuff in the jar: you’re just commenting on how smelly it is, and warning others.

Fair use and visual content

Be especially careful using someone else’s visual content (pictures, videos, infographics) without permission. Some people post their copyrighted photos online and strategically optimize them for search so that people will easily find them and probably use them in their own digital content.

As soon as someone uses the content, the copyright holder pounces, threatening a lawsuit and demanding a financial settlement. Basically, it’s a trap!

Only use other people’s photos or visual content if you have their written permission.

Or, avoid the whole mess and use your own photos. It’s easier than ever now, with smartphone cameras taking such high-quality images.

You could pay to use stock photos, but your content will express your own personality and style better if you use your own.

The benefit of Creative Commons

Some authors and artists choose to release their work under a Creative Commons license. These licenses allow companies or individuals to use the work, provided people comply with the terms of the license.

Some Creative Commons licenses require only that you give credit to the author. Others are more restrictive, specifying “no commercial use” or “no derivative works” (new works based on the original).

One caveat: you can’t be sure that the person who uploaded the “Creative Commons” photo and chose the license actually owns it! So, once again, taking your own pictures and creating your own visuals is the safest option.

And for those who think copy/pasting is curation, I quote Dr. Peter Venkman from Ghostbusters: “My friend, don’t be a jerk.” 

For more detailed information on the issue of fair use, visit the United States Copyright Office website.

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Instructional Design Manager, Enterprise Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Google+ and Twitter.

Illustration courtesy signgenerator.org

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  • Interesting write, Kerry! I remember reading about Fair Use but didn’t really go into detail.

    Good stuffs and just saved this in m Pocket for future reading / reference!

    Keep it up!
    Reginald

  • Hi Kelly, it is actually amazing to me that this needs to even be explained. Therefore, I can only conclude that anyone who steps over these boundaries are playing a typical game of pushing the envelope for their own gain and relying on legal protection for doing something that is obviously wrong. One of the best attorney’s I’ve ever worked with always asked two questions before diving into the legality of an issue; “How would you respond if someone did this to you?” and secondly “Are you just relying on the fine lines of law to justify self-serving actions?”. As you said so very well, if you use of someones content in an entirely self serving way, you’re likely going to get into trouble.

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  • I am also surprised by how many people think it is okay to steal words and post them on their own blogs. There is also a growing problem with people stealing books, changing a few words and the cover and posting as their own. We live in an “easy button” world. It’s sad.

  • Helpful guidelines for curators and readers. Thanks for the post!

  • A
    great and helpful insight. This tips are needed by the curators and readers.
    Reposting other people’s blog is stealing not unless, if that person gave you
    permission to repost hisher blog. Seeing your content being posted under
    other persons name is heart breaking. Very well explained Kerry Gorgone. I
    hope the readers out there who planned on copying someone else’s content will
    be enlighten with this article.

  • Hi Kerry – having listened to you many times on your podcast, it’s nice to see you in print 🙂 And while I agree with your points, I find it a depressing sign of the times that this is an issue. For me, the sharing/social proof model has gone a little awry of late. People (and particularly B2B commercial brands) are so keen to promote themselves that they value social media activity over quality. Unthinking retweets. Automated streams. And ultimately, careless (or even malicious) copyright infringement. Quality content should add to the debate. Otherwise it’s like reading a badly edited book with entire sections reprinted. Take the conversation forward by adding a point of view and crediting the original source and we would all be fine. But I’m afraid it is the modern pressure to hit activity-based KPIs (6 tweets a day, 2 blogs a week) that are driving the quality down and raising issues like the one you have so neatly articulated here. I did blog about this point using the phrase “Why social media is going to hell in a handcart”. A bit extreme perhaps, but it’s the world we live in…

  • Oh no, there’s definitely a hell-bound handcart, John! I don’t think you were extreme. I do have hope that the smart brands will turn the cart around. 😉

  • Thanks, Barbara! I’m hoping many of the people who are stealing don’t mean to do so, in which case this article will help. On the other hand, someone will probably copy/paste it onto their blog somewhere, so there’s definitely willful infringement happening, too. In the modern era, creating content that’s “worth stealing” seems to be a milestone for marketers!

  • Thanks, Jill!

  • Yes, yes, yes. Books, too, which always surprises me. It’s not as though a quick search wouldn’t reveal the original book (usually with better cover art) and the original author’s name. There must be profit enough in knock-offs that people keep doing it.

  • Your lawyer was very smart, Steve! Unfortunately, I think most people don’t consult a lawyer at all, instead relying on their own interpretation of the law.

  • Thanks, Reginald. Happy to write something Pocket-worthy!

  • I know, and that is a shame but for stuff like this, basic intelligence is all that is really needed. It’s unfortunate so many just don’t respect others and feel like if it is on the internet, it’s all free for use any way desired. What is more unfortunate is that so many just don’t know how to properly leverage this available value. The real litmus test is determining how you would feel if someone did it too you. If you wouldn’t like it, why would they?

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  • But those milestones are even more worth it if the content they’ve shared is personally made. Not just a copy- paste from others blog or website.

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  • Kristine Allcroft

    Thanks for this post Kerry!
    I am more than a little disgusted every time I find someone has stolen my work – whether it’s written or pictures of our business. I know that imitation is supposed to be the best form of flattery, but, stealing someone’s work seems to be in vogue right now, no matter what your business is. In our competitive marketplace with everyone rushing around trying to find that “edge” it’s becoming more and more difficult to protect our material.
    I’m going to save the link to this article to send to my next “admirer” when I find they’ve stolen my work!

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