4. Understand who really owns the content you use.
Even if you incorporate properly licensed art in your brand's online presence, look behind the license. While you may have licensed the right to use an image from a particular author, does the image contain elements that the author has no rights to license for advertising?
For example, if you license a photograph of a person driving a sports car for use in an advertisement, you are most likely only licensing the copyright in that picture. If the person or car is identifiable, has the person in the picture and the product owner licensed or otherwise agreed to the use of their images in your advertisement? Such embedded images raise trademark and publicity rights, beyond the overall copyright.
Also, explore if agreements that were in place before you put the content online give the right to use the material in a new form of distribution.
5. Take action.
If your copyright is violated, put the offending party on notice that they must immediately take down the image or text, or properly attribute credit and pay your licensing fee. Because there is a third party involved, you can also put the ISP and web host on notice that the website is violating your rights. If you receive notice that you are violating a copyright, react quickly. An uninformed mistake can typically be rectified, but you may face serious consequences if you ignore fair warning.
6. Don't confuse copyright infringement and plagiarism.
Copyright infringement occurs when someone makes an unauthorized copy of someone else's expression, or makes an unauthorized derivative that is substantially similar to the original works (when comparing the similarities). Plagiarism is passing off someone else's ideas or thoughts as your own. While it may get you expelled from some schools and professions, plagiarism itself is not illegal. Plagiarism might also involve copyright infringement, but not typically.
Plagiarism is avoided by giving proper attribution to others when you use and repeat their thoughts and ideas. Attribution avoids the charge of plagiarism, it is not, however, a defense or excuse for copyright infringement.
Conclusion
Managing copyrights and trademarks online typically involves applying traditional best practices and law to this new medium. Expanding to new forums like online sites can help grow your brand and connect with consumers, but also means that you have to steer clear of IP infringement and protect your content.
The old adage "if it looks too good to be true, it is" applies more than ever to online content. It is easy to copy and paste content onto your site or post it online without a copyright. However, this practice leaves open the possibility of an ensuing legal battle that could be far more costly and time-consuming than following best practices from the onset.
The potential consequences for infringing someone else's copyrights and/or trademarks include loss of your profits associated with the conduct, the other party's damages, enhanced damages, attorneys fees, and a permanent injunction prohibiting further publication, as well as corrective advertising explaining the past infringement. Under certain circumstances, a party can be liable for up to $150,000 in statutory damages for each instance of willful copyright infringement.
The IP rights landmines are real, but with proper attention and knowledge, they can be avoided.
Anthony J. Biller, Esq., is a member of Coats and Bennett and leads the firm's litigation practice.
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