Avoiding Copyright Infringement When Sourcing Content for Digital Products
Creating valuable digital products almost always involves incorporating some form of content – text, images, audio, video, data, research etc. While sourcing great content is crucial, it must be done legally to avoid copyright infringement claims that can derail your business.
This guide covers fundamentals of copyright law, fair use of copyrighted materials, best practices securing licenses, strategies to source original content, risks of infringing, and steps if disputes arise. It equips digital product entrepreneurs to gather compliant content that engages audiences without legal headaches.
Copyright Law Fundamentals
Copyright grants creators of original works exclusive rights determining how their works are used and distributed commercially. Copyright applies automatically once any tangible expression is created, registering with the U.S. Copyright Office provides additional benefits but is not required.
What Does Copyright Cover?
Copyright protects any original works of creative expression such as:
- Writing – books, articles, manuals, guides, software code
- Images – photos, designs, paintings, drawings
- Music – songs, compositions, sound recordings
- Videos and films
- Dramatic performances and choreography
- Sculptures and architectural works
Copyright arises immediately when the work is fixed into a tangible form like written down or recorded. You don’t need to register the copyright or display © marks, though doing so enhances protections.
Rights Granted Under Copyright
Copyright holders have these exclusive rights:
- Reproduce the work
- Distribute copies of the work
- Perform or display the work publicly
- Create derivative works adapting the original
- Authorize others via licensing to exercise these rights
Copyright makes it illegal for anyone else to do these actions without explicit permission from the rights holder. There are, however, some exceptions like fair use.
Use of a copyrighted work outside the permissions granted by the creator constitutes copyright infringement. Examples include:
- Copying writing, artwork, music, footage without license
- Performing or sharing copies of a copyrighted work publicly
- Creating adaptations or derivatives of a work without authorization
- Falsely claiming authorship of a copyrighted work
Infringements carry steep penalties including actual damages plus disgorgement of any profits from the infringement, or statutory damages up to $150,000 per work infringed.
Leveraging Fair Use Flexibilities
Fair use is a critical copyright concept allowing portions of protected works to be used without permission in certain contexts like commentary, news, education, and parody. For digital products, fair use offers some flexibility when incorporating copyrighted material.
To determine if use of a copyrighted work qualifies as fair use, courts weigh four factors:
Purpose and Character of Use
Uses for commentary, criticism, news reporting, research, or parody tilt favorably for fair use. Educational non-profit uses also help, while commercial uses make fair use harder to justify.
Nature of Copyrighted Work
Use of purely factual works like biographies lend themselves more to fair use than highly creative works like novels or art where value is expression. Published works also have more leeway than unpublished.
Small percentages of a work copied favor fair use, where large substantive portions copied reduce fair use claim viability.
Effect on Market Harm
Whether your use negatively impacts the copyright owner’s ability to market and monetize their work. Uses directly competing have less fair use merit.
Weighing these factors determines if incorporating some copyrighted material under fair use exceptions is reasonably defensible or overly risky. It is very context-specific. Having a genuine educational or commentary purpose helps justify use of limited portions.
Securing Licenses for Copyrighted Material
When fair use is uncertain or more substantive usage needed, acquiring licenses from copyright holders allows legal access to copyrighted works. Here are key licensing methods for digital products:
Allow you to reproduce parts or all of a copyrighted work. Prints, digital copies, scans would require a reproduction license.
Permit distributing copies of copyrighted material. Essential for digital products delivered physically or electronically.
For visually displaying or performing copyrighted content publicly. Could apply to product screenshots.
Required to create modified or derivative versions of copyrighted works like abridged editions or fictionalized retellings.
Grant rights to use copyrighted material in commercial products. Much stricter than fair use’s educational context.
Copyright protections differ per country. Multi-territory licenses permit usage in easier-to-manage global offerings.
Reaching out to publishers and rights holders to negotiate permissions and payment terms takes effort but unlocks valuable content legally. Some industry groups like ASCAP, BMI, Copyright Clearance Center also facilitate licensing transactions.
Sourcing Original Created Content
Beyond fair use snippets or licensed works, developing unique original content specifically for your digital products enables full copyright ownership and avoids infringement landmines. Ways to access original content include:
Hire writers, designers, developers to create content like blog posts, guides, plans, photos, graphics, code modules etc. explicitly for your products under work for hire or assignment of copyright.
Crowdsourcing User Content
Your audience members often will gladly contribute reviews, stories, testimonials, photos captured with your product, feedback quotes etc. for free.
Purchasing Stock Content
Stock media providers sell licenses for stock photos, videos, audio clips, illustrations, 3D models. Royalty-free licenses allow use in digital products.
Contests, hackathons and challenges to submit innovations, designs, ideas around your product category provide user generated original content.
Interviews / Guest Contributions
Recruit experts, partners, influencers relevant to your audience to contribute guest articles, Q&As, podcast interviews to incorporate.
Producing fully original content from the start requires more resource investment but delivers complete ownership and mitigates infringement risks inherent when repurposing existing works.
Strategies to Modify Content Legally
Some techniques to adapt and customize content, within bounds of any copyrights or licenses:
Paraphrasing Written Content
Summarizing information from copyrighted works in your own words transforms it enough to qualify as original work. Avoid closely copying phrases.
Remixing and Repurposing Metadata
Copyright doesn’t protect pure data. Unique remixes and visualizations of public data are original works.
Altering Licensed Images
Many stock image licenses allow cropping, resizing, editing photos. Alterations can make derivative images distinct enough.
Animating Still Images
Adding animation effects like pans and zooms to static images likely yields sufficiently new derivative work.
Editing Compilation Videos
Strategic editing choices compiling clips and stock footage into video stories steer clear of infringement.
Sampling Audio Snippets
Very short audio samples remixed into new songs and sounds usually warrant fair use.
Altering and building upon content through technical and editorial processes results in new creations eligible for copyright protections of their own. This enables expanding value.
Risk Factors of Copyright Infringement
While copyright principles are straightforward in theory, real world application gets tricky. Some common areas with heightened infringement risks include:
Unclear Fair Use Boundaries
Fair use involves subjective balancing of four factors. There are rarely firm fair use/infringement thresholds quantifyably defined. Use your best judgment.
User Generated Content
User submitted reviews, comments, photos etc. may employ others’ copyrighted material without proper rights. This creates potential liability for platforms hosting the content.
Limits of Licensed Media
Stock media licenses restrict commercial use, derivatives, audience scale, project numbers etc. It is easy to inadvertently exceed fuzzy license restrictions.
Linking to Infringing Content
Merely linking to infringing content does not usually incur liability. But contextual factors like intent, implied endorsement, commercial benefit might.
Reusing Content from Previous Employment
Employers often hold copyrights on works employees created for them. Carefully review contracts and IP agreements before repurposing.
Parodies Walking a Fine Line
While parody fair use defenses exist, they must actually critique the copied work itself. Merely comic styling does not necessarily qualify parody as fair use.
Vigilance is required to assess infringement risks in real world scenarios with many nuances. When in doubt, seek licenses or create original content from scratch.
What To Do If You’ve Been Accused of Copyright Infringement
If you receive a DMCA takedown notice or cease and desist letter claiming copyright infringement, here are recommended actions:
Evaluate Validity of Allegations
Do your own assessment if the usage does reasonably infringe or warrants fair use defense. Consider getting a legal opinion.
Respond Professionally to Rightsholder
Contact the rightsholder identifying the disputed usage. Politely explain your position, provide any license documentation, request clarifying their specific objections.
Remove or Disable Access to Material in Question
To demonstrate good faith, immediately take down or block access to the disputed content – at least temporarily until resolved.
File Counter-Notice if Appropriate
If you have strong fair use grounds, file a counter-notice explaining your rationale and defending the use of content.
Don’t Publicly Vent about Allegations
Avoid public social media rants against rightsholders alleging infringement. Keep discussions private and respectful.
Be Willing to Negotiate a License
The rightsholder may offer a licensing agreement as a settlement option for disputed usage. Weigh cost vs litigation.
Consult Attorney for Disputes Escalating
If challenged claims appear valid and significant liability possible, engaging an IP attorney may be prudent for the best outcome.
Maintaining composure, communicating politely with rightsholders, and pragmatically resolving disputes keeps infringement allegations from morphing into major legal battles.
While leveraging great content is vital for digital products, it must be balanced carefully with adhering to copyright protections for written works, media, data, research and other content sourced. Ample creative options exist to legally incorporate content through fair use, licensing, commissions, user generated content, and custom creations. With sound strategies and judgment, digital entrepreneurs can access a wealth of content to engage users while avoiding troublesome infringement violations.
- 1 Avoiding Copyright Infringement When Sourcing Content for Digital Products
- 2 Introduction
- 3 Copyright Law Fundamentals
- 4 Leveraging Fair Use Flexibilities
- 5 Securing Licenses for Copyrighted Material
- 6 Sourcing Original Created Content
- 7 Strategies to Modify Content Legally
- 8 Risk Factors of Copyright Infringement
- 9 What To Do If You’ve Been Accused of Copyright Infringement
- 10 Conclusion