The internet is a great force for democracy, industry, the spread of information, and free speech. It’s also a breeding ground for plagiarism, copyright infringement, and libel.
Add into the mix a very slow-moving government that not so long ago was calling the internet a “series of tubes,” and it’s difficult to grasp just what the law is, to predict what it will be in the near future, and to avoid stepping over legal lines. Altogether this makes for a challenging online marketing environment, one in which it’s hard to know when you’re being savvy and innovative and when you’re about to be slapped with a major fine (or worse).
So, how is a marketer to take advantage of countless creative online marketing options while avoiding the long (and archaic) arms of the law? Let’s take a look at a few of the most common issues today’s marketer is likely to encounter, along with a few ways to overcome them.
Copyrighted Fair Use
The Issue
From infographics to photos, most online marketers know how effective compelling images can be when it comes to engaging readers. But if you didn’t snap that photo yourself, it doesn’t belong to you. Chances are a pingback server or Google image search by the copyright holder will lead them right to your site…and they won’t be happy once they get there.
“But how do I know if an image is copyrighted?” Because it just is. That’s the way copyright law works: The moment an artist creates an image, a writer pens a story, a musician strums out a new song, or some guy strings together a few tin cans and calls it art, they’ve got copyright. While registration is required to enforce that copyright, there’s nothing they have to do to hold that right in the first place. (This is unlike trademarks and patents, which do require both registration and a fee.)
However, to the chagrin of many copyright holders, there’s a big “BUT” here, and it’s called “Fair Use.” Put simply, the fair use section of the Copyright Act places limitations and exceptions on an owner’s copyright in the form of commentary, news reporting, teaching, archiving, academic research, and search engines. Think, for instance, of an art teacher leading a class discussion about Van Gogh’s Starry Night. It’s not like she (or any number of art teachers) can really purchase the original painting, or even a poster, for every single kind of painting she’d like to analyze. In that case, downloading and printing out the photo is likely covered under fair use, as the teacher’s intention (also an important aspect of the Copyright Act) is for nonprofit educational purposes.
BUT (another big one here), whether or not something falls under the category of fair use is largely up to the court. And, though we have a lot of precedence for determining fair use in the offline world, the laws and judgments are struggling to keep pace with rapidly developing online technologies. Just take a look at the recent ruling against the digital reseller company, ReDigi, which was trying to create a second market for eBooks, unwanted MP3 files, and other digital files for which original owners no longer had use. Lacking frameworks with which to process this very contemporary issue, the judge had to turn to Star Trek and Willy Wonka to make his ruling. That is to say, fair use in the digital age is very much open to interpretation and is difficult even for judges to grasp.
Possible Solutions
Don’t give up hope yet. There are a few possible solutions.
1. Do the Fair Use Check: As we said, fair use is a tricky thing, but it does come with four exceptions to consider, including:
• The purpose and character of the use
• The nature of the copied work
• The amount and substantiality of use
• The effect of use on the work’s value
You’ll probably be okay posting a screenshot of a site you like and linking back to it, and using just a portion of an image so that it is truly differentiated from the original work. If you have any doubts, run through the four fair use factors again and use your best judgment.
2. Use Creative Commons Material: Creative commons licenses are public licenses that allow creators to have some control over how their material is used, while still offering it freely to the general public. Some restrictions on a creative commons license might be a simple attribution link for any taken images or a stipulation that the image not be used for commercial purposes. Read these licenses carefully before using the material in your marketing campaign. You can find creative commons images by heading to the Commons section of Flickr or by searching the Creative Commons site.
3. Join a Stock Photo Site: Stock photos are much like creative commons images, except that you’ll pay for the license. That said, you’ll still need to be careful about violating the site’s terms of use (see below).
4. Pull from a Public Domain Repository: Works that exist in the public domain once had copyrights, but now they’ve expired or have been forfeited. For images, this means you’re fine to head to a public domain repository and download an image from there to use freely.
5. Just Ask the Owner: Many image copyright owners will be honored to have you use their photo, just as long as you ask first and attribute them properly. Don’t shy away from asking when your heart is really set on a particular image.
Breaking Terms of Use
The Issue
A lot of the issues with terms of use violations are mentioned above in the copyright section. But even when you’re purchasing and reusing something legally or drawing from a public site, copyright holders can enforce stringent guidelines in their terms of use. Three good examples include:
1. Stock Photo Site Terms of Use: Take a look at Shutterstock’s terms of use, and you’ll see how easy it is to misuse an image. A few key limitations include modifying photos, using photos as a part of a logo, and using photos for advertorial content. This again becomes tricky in terms of online marketing efforts. While the definition for “advertorial content” is clear in offline publications (e.g., an editorial that promotes a product while masquerading as a news story), it’s a little less so online, where content so often really is objective and helpful, but comes with a link to a client laced in. Where is the line? Again, it’s a new world, and the best you can do is try to avoid any clear violations.
2. Twitter Embeds: Back in January, a US District Judge ruled that the French newswire, Agence France-Presse (AFP), and The Washington Post violated Twitter user Daniel Morel’s copyright when they re-posted his photos of the Haiti earthquake damage without his permission. But the judge also ruled that they would have been within their rights to republish if the images had been embedded in Morel’s tweet, as that adheres to Twitter’s terms of use reposting rights. Like I said, this whole online image beast is a strange thing, but the takeaway is that you can take a Twitter user’s photos just as long as you use the official Twitter embed tool to do so. (NOTE: Twitter’s terms of use does mention embeds for advertorial purposes are off limits.)
3. TEDTalk Embeds: TED is a great example of an organization that has majorly benefited from free online sharing of its material, something that can happen because its talks hold creative commons licenses. But, again, those licenses come with clear terms of use policies, like proper attribution, non-commercial use, and no altering of videos in any way. Not surprisingly, the same issues and murkiness in terms of advertorial content applies here as it does to Shutterstock’s policy.
The Solution
The solution for this one is pretty simple. Read the terms of use, take a look at how other users are keeping in line, and follow suit.
Use of Data Collected from Social Media Followers without Their Permission
The Issue
There’s a reason that marketers love social media, and it’s not all to do with creating a community, establishing expertise, and providing compelling content that drives potential customers to a company’s site. From Facebook to Twitter and Pinterest, social media is a treasure trove of user data. What you can do with that data is limited, but, as is the theme throughout the article, the legalities are again murky.
The biggest laws to look out for are the 1970 Fair Credit Reporting Act, which is really the foundation of American consumer rights, and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. Put simply, together these laws determine just what consumer reporting agencies can and cannot collect, ensure accuracy of their information, and require the agencies to notify a user if they take adverse action based on the collected information.
How does this apply to social media? The numerous data companies that scoop up social media user data and sell it to other companies, ranging from small companies to major corporations, are increasingly being categorized as credit reporting agencies and going astray of these laws.
In that sense, if you’re just a company collecting data from your Facebook followers and you’re not selling what you find, then you should be in the clear. However, know that – depending on the platform – you may not be able to scrape data for use in a different format (such as scraping data to analyze for an infographic).
The Solution
All of that said, social media data collection has gotten so much bad press that you want to be really careful about how much information you pull from your users lest you turn them away. Just asking for an email address can prevent a large number of users from fully installing your app. And the more questions you ask, the worse those numbers get. Whittle your questions down to the most essential rather than inundating users with grabs for their personal information.
And for scraping data for use in a different marketing format, check the terms of use for the data and oblige.
Violating the CAN-SPAM Act
The Issue
Most savvy marketers know that email marketing is a powerful way to run promotions and stay fresh in customers’ minds, all on a very low budget. But many businesses buy email lists, send content users don’t want to read, and do so at a frequency that recipients consider spamming. Not only is that a sure way to get sent to the junk mail box, but it also might not be in accordance with the CAN-SPAM act. The act actually isn’t nearly as stringent as many experts think it needs to be, and it overrides many harsher state laws, but there are a few key clauses to be aware of:
1. Unsubscribing: All emails must have a visible and easy to use “unsubscribe” link or button, and all requests must be honored within 10 days. What’s more, opt-out lists can be used only for actually opting out users, not to further spam them (seems obvious, but spam boxes say otherwise).
2. Content: All form lines must be accurate, and subject lines actually must reflect the content that’s inside the email. No sending an email with the title “10 Tax Tips” and then lacing it with Viagra links. Businesses also must include a legitimate address or PO Box. And there needs to be a label if the content is adult in nature.
3. Sending Behavior: Lastly, email marketing messages can’t be sent through an open relay, nor can they be sent to a harvested address or contain a false header.
The Solution
First and foremost, get to know the CAN-SPAM act and use the above three guidelines as a checklist when you’re setting up your email systems. But beyond that, know that users often consider email marketing spam or just plain bothersome when you do any number of things, like provide content that’s irrelevant to them or overdo the frequency. We highly recommend taking a browse through this email marketing guide for tips on creating a compelling editorial and content calendar, choosing an email client, analyzing reader behavior, and more.
Curious about the new GDPR laws? Watch this video:
Final Thoughts
So, what’s the real takeaway here? That online marketing is complicated for marketers, users, the government, and lawyers alike. In many ways, that murkiness is a good thing, allowing marketers to push the envelope as the rest of the world tries to catch up with these rapid technological advances.
However, a lack of clarity can hurt marketers when a judge interprets a law or usage in a different manner. As articulated here, there are many ways to get creative while staying safe. And if you want to go further? Well, the choice (and the risk) is up to you.
Disclosure: This article is for informational purposes only and is not to be considered legal advice.
About the Author: Adria Saracino is the head of outreach at Distilled, a digital marketing agency with offices in London, Seattle, and NYC. She is responsible for leading a team of outreach warriors and developing both content and outreach strategies for clients. You can follow her on twitter @adriasaracino.
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