Thou shalt not steal: Avoiding copyright infringement in your parish new media

This article written by me was originally posted in November 2012 to the Pilot New Media blog. After leaving that position, Pilot New Media was folded and the website is now defunct. I am republishing here some of my content that remains relevant.

One of the thorniest and most confusing topics when it comes to the use of new media by not just parishes and ministries, but everyone on the Internet, is copyright. What is copyright? How do I know what images, music, writing I can use on my website? If I find it on Google, does that make it fair game? If I’m not making money off of it, does that make a difference? The answer to the latter two questions is No, which surprises many people. This post should explain why.

Let us first stipulate that we’re not lawyers nor have we studied law and we are not offering legal advice of any kind. This post does not constitute endorsement by the Archdiocese of Boston or its associated organizations of any of the websites or pages we link or their explanations of copyright law. If you’re not sure what your legal rights are, please consult a lawyer. Parishes and ministries of the Archdiocese of Boston can contact the General Counsel’s office at 617–746–5672.

With that out of the way, let’s discuss some general information about copyright and copyright law. Since we’re most concerned with copyright in relation to websites, we’ll focus on photos, images, and written content.

What is copyright?

The current law governing copyright is in Title 17 of the United States Code, first passed in 1976 and amended many times since. It’s complex and long and suitable for lawyers. We’ll get in how copyright works in a second, but first let’s answer why we have it. Here is the brief explanation for why we have copyrights in the first place from a court ruling:

“the economic philosophy behind … copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors” Mazer v. Stein, 347 U.S. 201 (1954)

In other words, the reason we have copyright is so that people will make new things and get paid for doing them. In Christian parlance, we would quote Christ in the Gospels and say “the worker is worthy of his wages” (Luke 10:7; Matthew 10:7). People are entitled to benefit from their work. The incentive to create new works comes from the guarantee that the creator will receive remuneration for his work and craft. In addition, just because you have a good purpose for that person’s copyrighted work or you’re a nonprofit or can’t afford it or because other people are already violating their copyright, you still don’t have the right to use it without their permission.

The copyright owner has exclusive rights to control his work, even if he chooses not to sell, but that those rights are not all-encompassing. There are exceptions to those exclusive rights as defined by the law.

Fair Use

One of those exceptions to the copyright owner’s exclusive rights is the concept of fair use. While there isn’t a concrete definition of fair use in the law, William T. McGrath provides some guidelines in his article Copyright Issues in Today’s Church:

• “…[T]he statute provides as guidance some illustrative examples of types of use that might be fair (such as criticism, comment, news reporting, teaching, and research)…”
• “… [F]our “factors” that must be considered. These are: 1) the purpose and character of the use (i.e., is it commercial or nonprofit? is it transformative or is it very similar to the intended use of the original?), 2) the nature of the work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the market for or value of the copyrighted work.”

McGrath tells us that all four aspects must be considered. No single one is determinative, so for example that fact that you’re nonprofit doesn’t trump the other considerations.

Public domain

Public domain isn’t really an exception, but it refers to all the material not under copyright. It could be the copyright expired and wasn’t renewed (or eligible for renewal), there was never a copyright on the material in the first place for whatever reason–such as some materials produced by the U.S. Government–or the material was released by the creator into the public domain and he explicitly refused any copyright.

Creative Commons

Creative Commons is a relatively new approach to the use of original works online. Creative Commons encompasses all forms of copyright and public domain through various licenses that owners can place on their works. The licenses can be anything from public domain to attribution-only to noncommercial-only and several variants in between[1]. The idea behind Creative Commons is that it takes into account the reality of the Internet-age and digital copying, allowing creators to make their works available for use but still giving them ownership and control over how the material is used, if they wish.

Ignorance is no defense

It’s also very important to keep in mind that ignorance of the copyright is not a defense according to copyright law and precedent. A plea of “I didn’t know” likely will fall on deaf ears in court. You also shouldn’t assume that no one will notice your use of the item on your website or Facebook page or in the bulletin PDF that you upload to your website each week. Copyright owners have new technology at their disposal that crawl the web relentlessly searching out examples of their work that are being used without their permission. The first time you’ll hear from them is when you receive a letter in the mail from their lawyer with a demand to take it down and to send them a check for your allegedly infringing use.

How do I know the copyright status?

The short answer is that in the absence of a clear copyright or public domain notice, the safest assumption is that it is under copyright. Otherwise, look for a notice right on the photo, in the caption, or somewhere on the page referring to the copyright. Sometimes the whole website will have a copyright notice on it. Keep in mind that the presence of a copyright notice is not required for someone to maintain or assert ownership.

If you see the symbol © and/or the words, “All Rights Reserved”, you almost certainly need to get permission to use the content. If it says Creative Commons, and the license says attribution, then you will put on your page something like: “Image used with permission under a Creative Commons license” and then add a link back to the page where you got it (or whatever the instructions that are part of the Creative Commons license instructs you to do). If it says Public Domain, then just use it as is. Although you aren’t required to, you could perhaps add “Public domain” as a caption, just so that everyone knows you determined that the photo is in the public domain before using it. That helps spread the word that determining proper permissions is important to you.

Keep in mind that just because what’s depicted in the photograph is old, it doesn’t mean the copyright for the image is expired. For example, the courts have ruled that a photograph of a painting cannot be copyright because there is not enough originality in thought or expression. A photograph of a portion of the painting plus additional content (e.g. a room) can be copyrighted, unless it is a derivative work of an existing copyrighted work. See how confusing this can be?

The rule of thumb is that for anything made before 1900, copyright had probably expired. Between 1900 and 1978, copyright may have expired. After 1978, copyright lasts for the life of the author plus 70 years.[2]

Finally, certain pieces of fine art or even architecture are themselves copyrighted and thus any exact photographs of them cannot be used without the original owners’ permission. An example of that is the famed Flatiron Building in New York City.[3]

Proper credit and attribution

There is no one correct way to provide proper credit and attribution for photos that you have permission to use, although if the owner of the work gives you text to use, you would do well to use that. Sometimes you can put the copyright notice right on the photo itself using an image editing program or you can put in a caption field or someplace on the page that makes a logical connection to the image. If the owner asks for a link to a website or page, then include that. And always provide the proper language for the license, whether it’s “Public domain”, “Used with permission”, “Creative Commons”, etc.

Where can I find images to use on my site?

All that said, there are sources for images on the Internet that won’t cost you an arm and a leg to buy the license for. Some are free and some have a nominal cost.

Wikimedia Commons

Wikimedia Commons is the repository for all media that shows up in Wikipedia articles. According to their own rules, all of the material uploaded must be free to use by anyone for any use, and so you would be free to use any images, audio files, videos, or anything else on your website. Wikimedia is especially useful for images of historical and current figures and events or places, like Pope Benedict XVI or St. Francis de Sales[4] or St. Anne de Beaupré shrine in Québec.

If you click on “Use this file on the web” next to the photo, Wikimedia will give you the HTML code you will need to either embed the photo on your site with proper credit and at a variety of sizes or, if you prefer to download the file and manipulate it and embed it yourself, the proper language (in HTML, optionally) for correct attribution. (Click on the image to see a larger screenshot of the Wikimedia page).

Flickr.com

Flickr is a large community of photographers who post their photos online and includes everyone from parents taking snapshots to the Archdiocese of Boston to the office of the White House photographer to the Library of Congress archives. Flickr was one of the first major photo sites to incorporate the Creative Commons license into its service. To search for photos that you can use, sign up for a free account then enter your search in the search box and click the button. Now, on the next page, click on “Advanced Search”.

On the subsequent page, scroll down, click on the checkbox for “Only search within Creative Commons-licensed content” and click the “Search” button. The resulting images should all have Creative Commons licenses. You just need to pay attention to licenses to make sure that it gives the proper permissions.

The results of a Flickr seach can be uneven. Some photos are of low-quality. Some are obviously copyrighted works that others have posted in violation of that copyright. Use prudence and good judgment when using these photos, but you should be all right.[5]

Pixabay

Pixabay is another resource for public domain photos and graphics. These tend to be more conceptual images rather than topical, so for instance, you’ll find general clip art when searching for “pope” but nothing when searching for “Pope Benedict”. (You’ll also see offers to for paid images from Shutterstock.com in your search results. We’ll discuss those services in a moment.) If you search for, say, “Advent” and find an image of candles and a wreath, you can then download the image and use it as you wish.

Stock photos

When you just can’t find the right image from all the free sources, sometimes you just need to turn to the professionals and pony up some cash. There are many commercials stock photo services available, some very expensive ones that cater to the professional publishing industry and others intended for those with a much lower budget. Here are a few that we’ve used at Pilot New Media that we’ve found useful:

• iStockphoto
• Dreamstime
• Pond5
• Shutterstock.com

In most cases, the photos you’ll get from these services are professionally shot. Most of these sites also provide stock music, sound effects, and/or video clips to use in various multimedia projects. Prices vary from $1 for a photo and up while a few also offer subscripton services. In general, you’ll only need these for very specific purposes, when you need that perfect image to illustrate a concept, perhaps for an event or a seasonal celebration.

A very specific kind of stock photo house is Art Resource. This company owns the rights to sell images of hundreds of thousands of pieces of fine art, including many famous masterpieces of Christian art, from . If you really must have, say, Caravaggio’s “Calling of St. Matthew”, you can license it, but it will cost you a pretty penny.

Other sources

Finally, you could just hire a professional photographer or find a talented and willing volunteer in your parish to take photos, if what you need is photos from parish events or people in the parish or the like. A professional photographer can be a good choice if you need staff headshots for the website, for example, because they usually know not just how to shoot the photo, but how to make the people being photographed at ease so the shot comes out best. Just be sure to talk to the photographer about copyright and your usage rights. Remember, the photographer usually retains copyright unless you and he explicitly agree otherwise in advance.

What not to do

We’ve covered this a bit, but it bears repeating: Just because you find an image (or poem or other work[6]) in a search engine doesn’t mean that you can just use it. It is likely still under copyright and even if it’s on a dozen different websites, unless you confirm otherwise, those websites either confirmed their right to use them with the owner, determined the photo was available for them to use, or they ignored their obligations under copyright rules.

Likewise, if something is labeled “royalty-free” it’s also not free for the taking. Royalty-free means that once you acquire the license to use the image (whether through purchase or permission), you won’t have to pay for each additional use.

Also “free clip art” doesn’t mean free. The images on clip-art CDs and clip-art websites are the property of their original owners and are often copyrighted, but the owners of the artwork have allowed it to be distributed freely. However, that art often comes with restrictions on use. For example, they may allow you to use them in your parish bulletin but not on your website. Be sure you understand any restrictions before using any image from them.

Bottom line

The Internet has given us access to professional-quality media to improve our websites and other communications like never before and at prices that are often in the reach of the tight budgets that Catholic ministries often work within. Yet, the ability to easily capture and copy digital media opens us up to the potiential to misuse that content like never before. We have not just a legal duty, but also a moral and ethical duty as Catholics involved in ministry to uphold those standards both to protect the Church from liability, but also as examples and role models for others.

There are many options available to us for inexpensive or free digital media that respect copyright. Are there any I’ve missed? Do you have questions about this area that we–as non-lawyers–might be able to answer?