The Practical (non-Legal) Guide to Curation and Copyrights

TL;DR: Curation is not illegal. It is not copyright infringement. There's a thing called "Fair Use" that's an exception to copyright laws that allows you use some of someone's content to talk about their content. How much, why, and how you go about it, is not, however, clearly defined legally. So keep reading to understand what you need to know to not make it a copyright issue. Because you probably could.

Is curated content a copyright issue?

This question gets asked a lot, because many people use Shareist as a content curation platform. Which is great. Because it's killer for that.

I suspect that most people shy away from answering it because it's a legal question.
So I'll say first what everybody says (well except lawyers) when talking about this stuff:

I'm not a lawyer.

This is not a legal opinion.

It's pretty much based on common sense and Internet wisdom. There's an oxymoron for you.

So is curation copyright infringement?

In general, curation done well (in my opinion) highlights the work of others, and refers and introduces your audience to that work.

Curation gets someone else's stuff in front of your audience, which the original owner probably doesn't have access to.

So you're generally benefiting them, not hurting them.

Good curation isn't lazy.

It adds opinion or commentary on top of it, why you agree or disagree, or why it's a great resource, or not. This makes the work "transformative", which is another thing that is considered when determining fair use: Was the original work just copied or was more done with it?

Also if you're curating, you're probably saying nice things about the person who created the work, or the work itself.

Who in their right mind would have an issue with that?

In my non-legal experience, no one. I have not ever personally run into a copyright issue when curating other people's works into a transformative work.

However, I have run into copyright issues in other areas -- affiliate marketing, for example. Having been through it, I know that this doesn't really have to be that scary. The notices seem scary, but that's all part of the game.

They arrive via certified mail, with piles of printouts of screenshots of your website, and very serious threats about the full extent of the damages you've potentially caused them. Designed to scare you.

Or sometimes they're a manic email from the owner of a website all up in arms about how you've stolen their content.

Most of the ones I've seen are from overzealous legal interns ridiculously protecting their trademarks against the very affiliates who are trying to promote their products with thumbnail sized pictures of those products and mentioning their brand.

The point is not to fault them on trying to do their job.

The point is that getting takedowns seems to be part of doing business and marketing online.

So wear your first unfounded takedown notice like a badge. It doesn't necessarily mean you did anything wrong. You probably didn't.

All that said, the best I can do is give you enough info to be able to form your own comfort levels and ask yourself good questions of whether what you're doing is a copyright issue, as every case is somewhat unique.

The truth is that nobody besides a judge really knows what is an actual copyright violation (except maybe flat-out plagiarism), and things will likely never come to that, because it's way too expensive to find out.

Otherwise, the laws are left intentionally vague and that's probably a good thing.

So in practical terms, we all need to just feel our way around, bump into some people and step on some toes, but it usually works out just fine.

And here's some information to arm yourself with as you simply try to do the right thing.

By the way, if it ever feels like you're doing the wrong thing, maybe your motives don't really match up with the concept of "fair", and you're probably right. Maybe listen to yourself.

Speaking of "fair"...

Fair Use

You cannot have a conversation about curation and copyright on the Internet without talking about Fair Use.

Fair Use
(in US copyright law) the doctrine that brief excerpts of copyright material may, under certain circumstances, be quoted verbatim for purposes such as criticism, news reporting, teaching, and research, without the need for permission from or payment to the copyright holder.

source: Google [what is fair use]

The whole idea of fair use is to provide an exception to copyright laws in places where it is perfectly reasonable to use someone else's content for the purpose of essentially talking about them and/or the content.

You don't have to say nice things, you just sort of have to say something in a news reporting, educational, or critical sort of way.

Longer discussions about fair use typically cite four factors that should be weighed equally when considering whether something is fair use or not:

  1. The purpose of the use - Generally, good uses are news, criticism, teaching, research, and parody. In curation, we're dong all these things, except maybe parody. We're talking about what someone else said about a topic. Also, non-profit use is favored over commercial use. If there's one area in curation that makes people uncomfortable, it's the commercial use question. We'll expand on that further below.
  2. The nature of the work - art and original works tend to be protected more than non-fiction. In curation, we're typically talking about content that others have published. The purpose of publishing that content is typically to be seen. By curating, and linking to that content, you're furthering that purpose.
  3. The amount used - there are no set definitions for how much or how little is required, so this is tricky. But at the point where you start to feel like you're copying rather than referring, it's probably too much.
  4. The effect of the use on the value or market of the work - is the use of the work impacting the original owner's ability to sell that work? In curation, probably not.

Commercial Use?

If you are taking someone else's work and selling it, that's pretty clearly commercial use. If you're selling something, say an eBook, that includes commentary on others' works, that's probably ok, but it may attract some attention.

Remember, there are no cut and dry rules, by design, so you're not likely to get to the point where a judge is saying whether something is or isn't infringement.

You're much more likely going to have a disagreement where you either make the owner happy by doing something nice (like linking to them, or paying them, or saying really, really, nice things), or you stop using it.

The most likely recourse for any sort of copyright or trademark issue is to stop using it. So if you're doing something with the work that cannot be un-done, like publishing in a book, even an eBook, you're probably better off getting permission if there's any doubt.

People do get uneasy putting ads near or around curated content. To me, if there are enough of the other factors covered, like not affecting the actual market of the work, not using too much, and clearly commenting or reporting on the work, and transforming it, I can't see how ads on a site that does this can be seen as benefitting commercially on the works themselves.

If, however, you were pretty clearly using someone's content more for the purpose of only benefitting yourself (like making your site look good, getting some good text for SEO, without any benefit to the owner) AND there was commercial activity involved, that's a bunch of strikes against you. And you've probably already got a feeling by now that maybe that's not so cool.

What about images?

Images are copied far and wide on the Internet, with very little regard for ownership. This doesn't make it right, but it certainly makes it hard for the owners to do anything about it. If you are using images in a way that benefits the owner or otherwise serves the purpose of commenting on the original work, you have a much better chance of it being ok. A thumbnail or a smaller version of an image for the purpose of referring to the original is pretty hard to argue against.

Using someone's full sized image just to decorate a post is not likely "fair". Even giving credit to the owner doesn't make it fair use.

Most owners of images would be happy, however, to allow you to use it if you link back to them. Ask them.

What if you get accused of copyright infringement?

If you get accused of infringement, you pretty much have two choices: Take it down or fight it.

In practical terms, they only time you're likely to get accused of infringement is if you're saying something unflattering about someone or if you're displaying the brand of a company that's very sensitive to how their brand is used.

There are of course valid scenarios as well, if you are actually just using someone else's content selfishly. You probably know deep down if that's the case.

Many times, companies will fire off a takedown notice without necessarily any valid reason other than they just don't want you to be saying what you're saying.

What these companies know is that you'll likely comply without a fight, because it's just too much effort and risk to fight it. They also know that the scarier that they make the notice, the more likely you are to just roll over. This is of course probably your best option, to just take it down and be done with it.

In the end, sadly, it doesn't matter much who is right or wrong. What matters is who has the resources to fight harder, and make it too painful for the other to continue.

One time I spent about $2,000 fighting and calling bluffs on a trademark battle only to reach the point where I'd have to spend another $15,000 just to take it to the next legal step. I gave in. Hit me up over a whiskey some time and I'll tell you all about that one. Note: this had nothing to do with curation, and it could have cost me nothing if I just chose to give in. I still think I was right. It just wasn't worth it to me to find out.

Unfortunately, the long-term effect is that this is harming all of us as it emboldens these companies more. But when you're looking out for number one, the choice is pretty easy to take the path of least resistance and most comfort.

What's DMCA?

The DMCA, or Digital Milenium Copyright Act, is protection for web service providers who are hosting content on behalf of others. It gives companies like hosting providers protection in case there is infringing content being hosted on their own web servers.

The DMCA does provide a means for content owners to request that content be removed by the service provider. It also provides a means for a counter-argument, which is rarely used. Mostly companies will just remove the content that's the target of a complaint.

So to you, this means that it is possible that someone may complain to your hosting provider about something that you are publishing. Unfortunately, the response is usually to roll over rather than going through the pains of fighting it.

Again, this will do long-term harm to the Internet and the concept of fair use when clearly fair uses are getting removed without argument. This allows companies to just through DMCA complaints at companies to get negative reviews and comments erased. Read more in this post about that from Paul Sieminski of Wordpress

When in doubt, get permission

If you're not certain if what you're doing is fair use, ask for permission. Not only does this clear you of any issue, but you might even make some friends in the process.

I've seen time and time again that by asking, not only do you get permission, but you gain a friend, and even some free promotion if that person has a blog or social media presence. People love to be talked about, and will share what you said with the world.

I hope this gives you some understanding about what copyrights and fair use are all about, and gives you some comfort that fair use is a real thing, and in fact it's what the Internet is largely built on.

Content curation is non only legal, it's a great way to provide value to your audience. As long as you do try to do right by the people who's content that you're curating by following the basic guidelines of fair use to the best of your understanding.

Did I miss any points? Let me know in the comments or on Twitter or Facebook.

Posted on Wednesday, January 22, 2014 at 03:18:00 PM in Content

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