The CASE Act was passed at the end of 2020, establishing a new avenue for small business owners to pursue legal action against those who violate their copyrighted material. While this new legislation promises a new way to protect your intellectual property, it also means you need to be careful to seek permission to use copyrighted material in your own business practices.
Even if you inadvertently use copyrighted material without permission, you could be liable for penalties — and the CASE Act makes it easier for others to claim those penalties against your business.
Here are the steps you should take to make sure you have permission to use copyrighted material.
[Read more: Copyright Small Claims Court: What You Need to Know About the CASE Act]
Make sure the work doesn’t fall under fair use
Did you know that in some instances you may not need to ask permission to use a copyrighted work? Fair use is a principle defined in Section 107 of the Copyright Act stating that original works may be used by others for activities such as criticism, comment, news reporting, teaching, scholarship and research.
Fair use is relatively subjective depending on how you wish to use a particular creative work, what the work is and the possible financial impact of your planned use. Do your research or consult legal counsel to make sure the material you have in mind is covered under fair use.
Copyright ownership comes with a bundle of rights, and as a result, you need to know for what it is you’re asking.
Figure out the owner of the original work
It’s likely that, if you’re using a copyrighted work for commercial purposes, you’ll need to get permission. In that case, the next step is to identify the original owner of the material.
The process of identifying the copyright owner depends on the type of work you wish to use. “For many publications, the publisher is the owner of the copyright and can grant permission for your use. Some publishers have online copyright permission pages that simplify the process,” said the University of California. “For photographs or films, the copyright owners sometimes use licensing agents that will grant permission for your use, typically for a fee.”
It’s also important to note that you may need to secure permission from more than one source. To use a magazine article with photos, for instance, might mean getting permission from both the photographer and the article author.
[Read more: What Is Fair Use? And How It Impacts What Copyrighted Materials Your Business Can Use]
Not sure how to find the copyright owner? Here are a few places to look:
- The copyright notice: This notice will contain the copyright owner’s name, which you can then use to find their contact information. Sometimes, the author’s name is enough of a lead; you can contact them to find out if they have exclusive rights to the work.
- The U.S. Copyright Office: Again, it’s not legally required to register for a copyright, but some people do so anyway. Check the Copyright Office’s catalog to see if there’s a copyright record related to the material you wish to use.
- Whois: For work that’s published online, it can be difficult to trace the original owner. Whois is a tool that you can use to find the author or contact information for a specific website. It searches domain registrars for the name and contact information of the website’s registrant.
- Copyright collectives: These organizations license works on behalf of copyright holders, especially for musicians. ASCAP, BMI and SESAC are among the most well known. For written material, try the Copyright Clearance Center or iCopyright to get licenses for articles from newspapers, magazines, books or journals.
For more information on how to find the owner of a copyright, check the U.S. Copyright Office’s Circular 22: How to Investigate the Copyright Status of a Work.
Identify what rights you need to request
Copyright ownership comes with a bundle of rights, and as a result, you need to know for what it is you’re asking. “Each copyright owner controls a bundle of rights related to the work, including the right to reproduce, distribute, and modify the work,” wrote Stanford University Libraries.
When you reach out to the owner of the copyright, your request should include the following information:
- What part, and how much, of the material do you wish to use?
- What is the nature of the use?
- How will the copy be distributed?
- Will you be making money off the copy?
- How many copies do you wish to make?
These factors will all play a role in whether or not the owner allows you to use their work, as well as any fees that they may ask for in return. “Although many uses of works may be free, you should usually expect to pay something—even a minimal fee—for copyright permission,” said Stanford University Libraries. For instance, using a stock image can cost as little as $5; but, a song license may be a few thousand dollars.
Note that it can take up to three months to get your request approved, so plan ahead and don’t use the material until explicit permission has been granted.
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