December 12th, 2014

The Copyright Naughty List

SusanSpann_WITS
Susan Spann

Happy Holidays!

‘Tis the season to stay off the copyright “naughty list,” so I’m here to share a few #PubLaw tips for avoiding copyright infringement in your holiday blogging and social media celebrations!

When celebrating online this holiday season, keep these helpful rules in mind:

SONGS (AND LYRICS) ARE PROTECTED BY COPYRIGHT

At the holidays, it’s tempting to re-post the lyrics to favorite carols or celebratory songs, either on Facebook, on a blog, or on other social media sites. Unfortunately, lyric-sharing often violates the copyright of the lyricist or songwriter, because lyrics are protected by copyright, as are novels, short stories and poems.

Posting an excerpt (no more than 2-3 lines) is often permitted as “fair use,” especially when the quoted work runs at least 30 lines. However, there is no absolute test for fair use, and no definitive test for when you’ve used too much of a copyrighted work. The legal test is “facts and circumstances,” based on several factors (so anyone who tells you “X lines is ok, but more is not” isn’t telling you the absolute legal truth_.

If you want to share a favorite song, it’s better to quote a line or two and link to a website containing the lyrics, or to a YouTube video showing an authorized performance of the work.

RECIPES ARE NOT PROTECTED BY COPYRIGHT…EXCEPT WHEN THEY ARE.

Copyright exists to protect creative expressions, and does not protect “functional items.” To the extent a recipe consists of ingredient lists and basic steps to combine them in a way that results in a specific type of food, the recipe is merely functional–and not copyrightable. Any functional element of a recipe, including the ingredient list and the basic instructions, can’t be copyrighted—which means you can share the recipe at will.
(Note: For this purpose, a “functional item” is any part of the recipe that’s mandatory to create the food itself. For example, yeast in a risen bread.)
Courts have ruled that ingredient lists – even for unusual recipes – are merely a “statement of facts,” and  not copyrightable. Courts have also ruled that the factual parts of the recipe’s directions (the instructions themselves) are not copyrightable.

However, creative portions of recipes – meaning the way the instructions are given and any anecdotes, humorous add-ins, and “tips and hints” included with the recipe – may be copyrightable. In other words: you probably can’t just reproduce a creatively-worded recipe verbatim and call it your own. However, you probably can legally post a recipe in your own words, as long as you stick to the functional elements of the original recipe and make sure any hints, tips, and “bonus material” is your own.

Remember: when sharing recipes, ethics are also important. It may be “legal” to lift and reproduce someone else’s recipe without violating copyright, but it’s not very nice to take someone else’s recipe without attributing it to the creator. If you love a recipe someone else created, it’s better to share your experiences and photos, and attribute (and even link to the source) if you can. You could also share the ingredient list and “functional” directions, and then link to the source for tips and creative content. If there is no link to the recipe, go ahead and share it and simply mention the name of the cook or chef who created the recipe (if you know who claims it!). Cooks appreciate the attribution.

PHOTOGRAPHS – OF FOOD AS WELL AS EVERYTHING ELSE – ARE SUBJECT TO COPYRIGHT. GET PERMISSION BEFORE RE-POSTING IMAGES.

It’s tempting to copy not only a tasty recipe but also the lovely photographs that accompany it. Careful! ALL photographs are subject to copyright, and like the copyright on other creative works, it belongs to the creator—in this case, the photographer who created the image. Reposting or reproducing someone else’s photographs without permission is illegal, unless you have permission from the photographer or image owner. Don’t be Copyright Infringement Elf this winter. Take your own holiday pictures or get permission from the person who owns the photo.

Don’t forget: sometimes the most disastrous photos add the most to your blogging. Anyone can offer boutique cookie photos glittering with a perfectly-spaced assortment of frosting and sprinkles. It’s the “cookies-with-faces-for-radio,” Toddler-Decorated Cupcakes, and “Pumpkin_Pie_Bonfire_101” photos that give a holiday blog real seasonal cheer.

Happy Holidays from #PubLaw – and I’ll see you all next year!

Do you have other holiday copyright “gray areas”? Do these copyright laws surprise you?

 

BladeCoverSusan Spann writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014.

Susan is also a transactional attorney whose practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium.

You can find her online at her website, http://www.SusanSpann.com, and on Twitter (@SusanSpann).

 

 

26 comments to The Copyright Naughty List

  • Thanks for the reminder – it’s so tempting to just use photos without giving credit. Most times, I do my best to just use my own, as you suggest here. More creative that way! Happy Holidays.

    • It’s definitely tempting – and I’ve had clients who definitely regretted it! (Some photo owners are highly litigious, and the penalties to avoid a lawsuit are costly, to say the least.)

  • Excellent post! Sharing this in the Seekerville WE Edition. Thanks for this valuable info.

  • In a past professional life I managed an online educational portal for a large craft manufacturer. We had a team of freelance crafters who would create projects & blog about them for us.

    One blogger shared a LINK to a recipe, as well as the PHOTO that the site used for that recipe (with proper attribution in the caption).

    UNFORTUNATELY, the recipe site had purchased the image from a stock photography site, and that stock site came after US for having ‘stolen’ the image.

    We paid a hefty fine (I believe around $1000).

    Moral of the story — don’t use an image unless YOU took it, YOU purchased it, or the person you are attributing (who has given you permission to use it) took it.

    Otherwise, you put yourself at risk!

    • I’m sorry to hear the site had that experience – it’s more common than most people think, unfortunately. Your comment highlights a really important issue, too: people can’t assume the place they “lift” a photo from had permission to use it – which means the infringement might not “just” be some small blog nobody reads. It might be the AP or Getty Images or someone else with an aggressive litigation budget. Wrong is wrong, even when the victim is a little blog – so it’s better to just take your own photos or license your images fair and square.

  • Ally Brielle

    Thanks so much for this Susan. I knew about song lyrics but was just about to research the requirements for recipes. Your post is much appreciated!

  • Hi Susan — Great post. Was wondering about Pinterest and Pins (all of which are photos) — What are the rules regarding pinning images and content from Pinterest on your website/blog…?

    • The rules for Pinterest images are the same as everything else – you can’t post them anywhere (including on a blog) without the owner’s permission. Technically, posting someone else’s image to Pinterest is actually infringement unless the owner permits it. However, a lot of photo owners want the publicity Pinterest provides so they don’t prosecute (yet). They could, though, and they can legally sue people who put images from Pinterest onto blogs and Facebook, even if they don’t sue the people who pinned them in the first place.

      Short answer: don’t use images from Pinterest unless you have the image owner’s permission (and remember the owner may not be the person who pinned it).

  • Fae Rowen

    Oh, to be able to use song lyrics… So many times my characters are in a scene that just blares a particular song to run through their heads (sometimes dueling songs!) but I know I can’t use the lyrics. It’s okay to mention a song title, isn’t it? What about just a hint like “I can’t get no”?

    Thanks for the timely reminders, Susan. Happy Holidays!

    • Fae, you can use titles, so “he walked along, humming the Stones’ ‘Can’t Get No Satisfaction'” would be fine. You can also usually use a couple of words (less than a line) fairly safely, so “He stepped off the street, singing, ‘I can’t get no…'” would also be fine.

  • Thanks for this post, Susan. I’m sure you see this sort of copyright tomfoolery all the time on blogs, Facebook, and other social media. I do. I’m never sure whether the posters are simply unaware of the law or forget other artists are as fond as writers of their copyrights. I’m fairly certain the ones who post infringing material don’t realize the fines for copyright violation can be extremely steep.

    • Like you, I suspect many of the people who post infringing material either don’t realize it’s infringement if it’s all online (yep, I hear that a lot) or don’t understand how steep the penalties are. It makes me sad when people end up getting sued, or paying steep fines, because they didn’t take the time to handle the copyright issues correctly. That’s one reason for #PubLaw – I’m trying to spread the word!

  • MM Jaye

    Thanks for the excellent post! I, too, wonder about popular social media. Nobody seems to worry about copyright on FB, Pinterest, Goodreads (where the bloggers use gifs and make teasers with pics like crazy). To be honest, I share and re-post things I like on FB and interest all the time.

    However, on my blog, I always use images I purchased from stockphoto sites, citing both the source and the contributor.

    Also, my editor suggested I deleted an innocuous reference to Anne Hathaway (“she had Anne Hathaway eyes”) from my MS because she said that Scarlett Johansson sued a French author for using her in his book infering to her being promiscuous. However, I recently read a book by Ruthie Knox where she repeatedly references Tiger Woods as a wife cheater. What say you on that?

    Greetings from Greece!

    Maria (MM Jaye)

    • Great questions, Maria.

      The truth about Facebook, Pinterest, and other social media is that some image owners like the publicity, so they don’t sue even when they could. Others (Getty Images is a big one) watch their images like hawks. It’s less that nobody cares, and more that copyright lawyers cost money, so many image owners pick their battles with an eye to recovery – smaller fish are more likely to be ignored. You can’t rely on that, however, because I’ve had “small fish” clients sued over image use.

      When people infringe on social media, they’re often relying on something I call “Zebra odds” – as in, when a herd of zebras crosses a river, one or two might get taken by crocodiles. However, the herd still crosses, because the herd mentality says “it probably won’t be me.” Which is great, unless you’re the one that does get picked by the crocodile. That’s why I tell my clients “don’t pay attention to what “everyone” does – just don’t infringe.” It’s the only way to stay safe from the crocodiles.

      As far as the book question – it’s a shade of the same: your editor wants you to play it safe. Ruthie Knox may never get sued, or she might. And if she gets sued, she might or might not win (but it’s expensive either way). I’m with your editor: call them “movie-star eyes” and leave out the names, and you’ll avoid two problems: lawsuits and making your book sound dated twenty years from now when half of your audience no longer remembers Anne Hathaway.

  • Great post! I’m going to regale your readers (should they choose to read this comment) with my rendition of my favorite Christmas Carols. Let’s start: “Rudolph the R—”

    [MOVE ALONG. THIS COMMENT HAS BEEN SILENCED]

  • Great post – excellent reminder that a lot of the ‘mythology’ around copyright is just that. Here in New Zealand, the ‘fair use’ aspect is a particularly grey area. Here it really boils down to who’s got the money for the lawyer, and (for an author) whether their publisher judges that the return from pursuing the infringement will exceed the cost of doing so. This last has stopped me from acting on several occasions when my intellectual property’s been infringed (as in, taken by somebody else, as if their own work, and sold by them for their own credit and gain) – I presume this is also true in the US?

  • Brianna Soloski

    A good reminder all year long! Happy holidays to you, Susan.

  • I’m amazed that some bloggers haven’t yet heard of this, and continue to use photos that aren’t cleared.

    I SO wanted to use some lyrics from, Forever and Ever, Amen, in The Sweet Spot. I even contacted the author(s) – turned out there were 3. One didn’t reply, one said, ‘go ahead’ and the last wanted $5,000.

    So, needless to say, it didn’t end up in the book.

    Thanks for keeping us safe, Susan!

  • I have a blog article on copyright specifically for readers and writers. You can find it here:
    http://mbyerly.blogspot.com/2009/03/readers-guide-to-copyright.html

    Other copyright articles including one on how “The First Sale Doctrine” works with ebooks can be found by clicking the “copyright” label.

    These articles are available to reprint on others’ blogs. All you have to do is ask permission.

  • It’s important to remember too that there’s often more than one voice or opinion involved in use. My sister used a song, and the artist loved it and thanked her for doing it. His label issued a C&D.

    Sometimes it comes down to whoever has the most lawyers who need busywork. 😉

  • Yes, I too have been tempted by lyrics–I love them so. But sometimes just stating the name of the song, and telling the reader the song’s theme, works just as well for story purposes.

  • Thank you for this post! One question I have had…is it okay to reshare images of book covers? I’m figuring yes, it is because it’s okay to share movie quotes (free advertising for the companies that made the movies), but still not 100% on whether or not book covers are okay.

    Thank you!

  • […] The Copyright Naughty List A reminder from Susan Spann at Writers In The Storm of what to watch for in copyright terms as we blog – quotes, images, even recipes… […]