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By Michael C. Lasky, Partner/Co-Chair, Litigation Chair, Public Relations Law Practice, Sara Edelman, Partner, Litigation, and Shirin Keen, Associate, Litigation, Davis & Gilbert, LLP
Every day, public relations firms distribute copyright-protected material.
You may be unintentionally violating the federal copyright law when you photocopy
a magazine article and share it with your clients by e-mail, post an industry
newsletter on your company's intranet site or distribute a research report
at a client presentation. As technology makes distributing works easier
and easier, it is even more important to be mindful of copyright issues because
the penalties can be severe – no matter how innocent the infringement may seem.
This article provides a brief overview of copyright law and some tips about
how to copy "right" and copy "wrong."
WHAT IS PROTECTED BY COPYRIGHT LAW?
Copyright law protects "original works of authorship," and includes a wide
variety of creative materials such as:
- books, magazines, newspapers and blogs
- music and lyrics
- videos, movies, and television broadcasts
- photographs and other artwork
- games and software
- charts, graphs and maps
Copyright law protects works created in all media such as print, electronic
and digital formats. A work enjoys copyright protection from the moment
it is created. Contrary to popular belief, a work does not need to contain
the copyright symbol © in order to be protected by copyright law.
WHAT RIGHTS DOES COPYRIGHT LAW PROTECT?
Under copyright law, the owner of a work has a number of exclusive rights,
including the right to:
- reproduce the work
- distribute copies of the work
- create a new or derivate work based on the original work
- display the copyrighted work
- perform the copyrighted work
Generally, therefore, you must obtain permission from the copyright owner
of a work before you can reproduce, display or distribute that work inside
or outside of your company.
With this background, here are two basic practices to avoid and two basic
practices to follow:
DON'T: DUPLICATE COPYRIGHTED WORKS WITHOUT PERMISSION
The making of a copy of a copyrighted work by any means (such as photocopying,
scanning, digitizing, ripping, or downloading) constitutes a "reproduction." Likewise,
the unauthorized "posting" or "uploading" of creative material may implicate
the "display" and "distribution" rights granted by copyright law.
Digital, electronic and online materials are subject to the same protections
as non-digital, traditional or paper-based works. However, there are
further legal risks associated with using digital content. Many publishers
of copyrighted works distributed electronically have embedded tracking software
that detects each time the work is downloaded, printed, forwarded, shared or
copied. PR News, and several other PR trade newsletters, have embedded
this software.
Tampering with this software can lead to a finding of willful copyright infringement
and should not be attempted.
Widespread copying that deprives the copyright owner of the opportunity to
sell, license or exploit a work – such as routinely copying issues of a subscription
publication to increase the number of copies available to your firm – is strictly
prohibited. Only limited copying of a lawfully-owned copyrighted work
for personal use may be allowed. For example, printing out a copy of
an electronically-distributed publication to read at your leisure away from
your computer.
DON'T: DISTRIBUTE COPYRIGHTED WORKS WITHOUT PERMISSION
You can share a legally-owned copy of a copyrighted work, such as by circulating
a hard copy of a printed publication by a routing list. However, distribution
of a copyrighted work to the public for commercial purposes is exclusively
reserved to the copyright holder.
Likewise, posting material on the Internet may also violate a copyright holder's
exclusive right to publicly display, or in the case of audiovisual works, publicly
perform the work.
Isolated distribution of a limited portion of a copyrighted work (such as
press clippings) on an occasional and infrequent basis may be allowed,
but should be avoided. In short, systematic distribution, especially to a
large audience, should not be done absent authorization.
DO: MAKE AUTHORIZED USES AND USE AUTHORIZED DISTRIBUTION METHODS
FOR YOUR FIRM
Most publications
such as newsletters
and magazines
are available
by paid subscription.
That subscription
or license agreement
describes how
many copies of
a work may be
made or distributed. Review these agreements carefully before
reproducing a copyrighted work. You should purchase the necessary number
of subscriptions or obtain a company-wide subscription to ensure that the appropriate
number of your company's employees have access to a printed publication.
The correct practice for circulating printed materials is by distribution
list. While this may seem cumbersome, it is necessary to avoid an infringement
claim.
Information found online can be appropriately shared by providing the web
address or a hyperlink to the original source – as long as the source referenced
is not an infringing work (for example, do not share links to pirated videos
or music).
Providing a web address or a link which directs the user to the original
source is not copyright infringement because the address itself is not
copyrighted. In this instance, no copies are made and the distribution, display
or performance of the work itself remains within the control of the copyright
owner.
Aggregators such as NEXIS or Google can also aid in sharing information and
copyrighted works by referring clients to these services, without incurring
a risk of infringement. For example, NEXIS obtains licenses from publishers
to make their content available to its clients, and "Google Alerts" provide
limited excerpts of recent content on particular subjects along with a link
to the original source in a manner they have determined is compliant with fair
use.
DO: OBTAIN PERMISSION
If it is necessary for business reasons to make or distribute copies of a particular
copyrighted work such as an entire article or research report, obtain written
permission in advance from the copyright owner. Stick to the permitted
uses, or go back for further permission if needed.
CONCLUSION
By complying with copyright law in an informed way, copyright owners who create
original content receive fair compensation for the use of their work and organizations
gain access to the content they need to assist their clients while avoiding
litigation and potential damages. However, failing to educate employees
about copyright law may well expose public relations firms to substantial risk. | 
