‘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?
Susan 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.