You’re working on a project and your boss or client wants to see a prototype with photos and vector art 10 minutes ago.
No problem. A couple image searches on Google or Bing, download the ones you like, pop them into the modules, done! No problem, right?
Surely it’s OK to use a photo in a demo you found in an open search? I mean, as long you’re using it behind a firewall, who’s going to find out or care?
Don’t answer right away. (And try not to eye roll, either.)
The five-second rule
Let’s first take a look at another question: Is it safe to eat food that’s fallen on the floor for less than five seconds? You scoop it up, you’ve managed to elude all forms of icky and apparently slow-moving bacteria.
Is the five-second rule for food a myth? Well, yeah. The results, studied at universities and even in an episode of MythBusters, are clear. The amount of bacteria transferred to food has nothing to do with time and everything to do with the amount of bacteria already living on the floor.*
OK, myth busted, yet that knowledge doesn’t stop us from eating a dropped chocolate-covered almond (although we may give pause before rescuing chocolate-covered broccoli).
That’s because we analyze the risk and make a choice. Benefit clearly outweighs risk.
Same thing happens behind a firewall. We tend to believe that we can post or email work that contains copyrighted content without risk as long no one knows, despite the fact that we don’t have rights to use the work to begin with.
Sadly, that is also a myth.
The rights attached to a photograph remain with it no matter where you post it or in what country you’re working. Copyright in the U.S. attaches to a work as soon as it is fixed in a tangible medium, such as clicking a camera shutter. US copyright law grants a bundle of six exclusive rights to copyright owners, including the right to copy, distribute, and create adaptions (such as making a derivative work, like a presentation or prototype). Using protected works in a prototype sets the infringement fires aglow for those three rights alone.
Photographers and graphic artists can license any or all of these rights to a distributor, such as Getty, Shutterstock, or iStockphoto.
When you download an image legally, you enter into a license agreement regarding use of that content. This is true whether you pay for content from a stock media provider, or abide by the terms set in a Creative Commons or other open-access license.
Conversely, when you download from image search results, no matter your intended purpose, you have no license and you are not cleared for any use whatsoever.
Hey, what about fair use?
Good News: The fair use doctrine is an exception to copyright protection and is built into the law.
Bad News: There is no “Draft—for Internal Use Only” exception to copyright protection.
Fair use allows limited use of protected works under certain circumstances without permission from the copyright owner. Justice Ruth Bader Ginsburg has called fair use a “First Amendment safeguard,” as its purpose includes commentary, criticism, and parody, all of which transform the original by adding new purpose, value, or meaning.
Examples of transformative uses in eLearning often occur in nonprofit educational institutions, where fair use is designed to give educators and students a wider berth in using protected works.
Even if your use is educational in the broad sense (such as training), the chances are remote that you would have success arguing fair use for using a protected photo you downloaded from an Internet search. Most importantly, whether your use is fair is decided by the courts. That means intellectual property lawyers—and their “unfair” hourly rates, which may include those of your adversary’s attorneys—are ensconced in the mix.
The essential questions you need to ask about your use are: (1) Is your work new evidence of an additional purpose from the original, or is it just a copy, and (2) Does your use cause the copyright owner to lose money? You could argue that you’re not really making any money from a photo in a prototype, but regrettably, even if you don’t make money, it doesn’t mean that the rights holder isn’t caused a loss by your misappropriation.
The risks, or … the politics of reality**
Good News: You may not get caught. In fact, some argue you probably won’t get caught. If you do, expect to receive a cease-and-desist letter that will (1) require you to stop the infringing activity (quit using the protected work and then delete or destroy any and all copies in which it appears) and (2) threaten legal action if you do not. (Note: Take cease and desist letters very seriously.)
Bad News: This ain’t Vegas. What happens within your company behind the firewall or in the cloud doesn’t always stay there. That’s reality.
Other headaches could relate to the specific image, such as a model release or property rights.
You may also believe that ignorance is your best defense, or that it is better to ask forgiveness than ask for permission. Many of us have found that to be proven a successful strategy for evading a traffic ticket, but copyright law doesn’t work that way.
It’s not about whether you:
- Have any evil intent
- Only use part of it
- Make money from it
- Will take it down if asked
- Will give credit to the photographer
- Don’t know it is protected by copyright
- Personally post it
If you are found to have used a protected work without a license, legal exception, or other permission to do so, you may be liable for copyright infringement. Legally. End of story.
For many, perhaps the easiest solution is to download low-res images and other media embedded with a watermark from stock sites such as iStockphoto, Thinkstock, or Shutterstock.
Ethics, integrity, and walking your walk
As creative professionals, we’re all in this boat together. Entomologist and photographer Alexander Wild says that “copyright infringement for most artists is death by a thousand paper cuts.”
Many business decisions involve some type of ethical judgement. We can think of ethics as following an external code or set of rules. Integrity, on the other hand, is our individual and internal set of principles.
When you combine the words “copyright law” and “client” in the same sentence, it may help to consider downstream consequences. In the first instance, maybe your client begins to question whether you will be as cavalier with their content as you are with the media you placed in their presentation or prototype. On a broader canvas, maybe your arch rival competitor figures they can rip off your content to impress potential clients.
Objectively, most probably view those businesses more favorably whose practices reflect both the law and ethics. By implication, those practices also reflect stakeholder interests. The Josephson Institute for Business Ethics developed a core-values model you can use to estimate the downstream effect of your possible infringement upon various stakeholders, shown in Figure 1 below.
Concepts from the Josephson Institute for Business Ethics
Figure 1: Core Values for Ethical Decision Making
Where do we go from here?
Every business, whether a sole proprietorship or large corporation, should create a copyright policy and educate staff on how to apply the policy in practice. It can be a very simple set of guidelines for how one is to handle copyrighted work in your organization.
On the other hand, if Figure 2 below is your current copyright policy, it might be time to consider whether or how it is serving you.
Image courtesy ©Tomo.yun (www.yunphoto.net/en/)
Figure 2: Not an effective copyright policy
Maria Pallante, United States Register of Copyrights, describes copyright as a contemporary professional life skill, like using learning analytics or processing big data. I couldn’t agree more.
It is easy to incorrectly link respecting intellectual property law with limitations and constraints that translate to being a financial or creative burden. Instead, the cost of not understanding copyright exposes your company to consequences that transcend merely unpleasant or monetarily damaging legal action.
In my nearly 10 years as a copyright and finding media educator, I’ve discovered a fascinating dynamic. Once people replace their confusion about copyright law with a working knowledge of the law and how to apply fair use, they are better able to manage risk and operate on an ethical, moral, and financially realistic basis. A creative marketplace such as eLearning demands no less.
* Specifically, transfer is influenced by the amount of bacteria and the type of floor surface. See http://www.discovery.com/tv-shows/mythbusters/mythbusters-database/5-second-rule-with-food/
** With apologies to philosopher Marilyn Frye.
From the Editor: Want to learn more about copyright?
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