Just Because It’s On the Internet Doesn’t Mean It’s In the Public Domain | Whitman Legal Solutions, LLC

As the parent of a student musician, I take videos of my child’s public performances. Sometimes, music schools or concert sites created videos of concerts where my child performed and posted them online.

Over the years, I’ve seen other parents create social media posts that adapt a video or photo someone else took of their child. Or, they may have posted a video they made of their child performing a modern musical work. Or, the post may include not only their child’s art but also that of other children. They believe that because the video or photo has their child in it, it’s theirs to post. But that’s not necessarily so.

Recently, someone emailed me asking about a company that offered mortgage refinance and foreclosure relief services (which I called Easy Refi, Inc. in a previous article). The company is over 2,000 miles away from me, and I had never heard of it until I received that email.

But without permission or attribution, Easy Refi created a website by copying an article that quoted me. As a result, my name ended up on Easy Refi’s website without my knowledge or permission. I wasn’t alone – several other professionals’ quotes also were used the same way.

This article discusses some of the laws that apply to videos, photos, and articles published on the Internet.

Just Because it’s Published Doesn’t Mean it’s in the Public Domain

Some people think that if something is on the Internet, it’s in the public domain and is fair game to be copied. Not true! Giving the public access to an article, photo, music, video, or other art doesn’t put it in the public domain.

Those same people wouldn’t claim that a song is in the public domain simply because it is played in a shopping mall (which undoubtedly paid for a license to play it). Nor would they claim that all of the books in a public library are in the public domain simply because the public can read them or that all of the art in a museum is in the public domain simply because the public can view it. The Internet is no different.

What is Copyrighted?

Everything is copyrighted when it is first created. Copyright applies to all “original works” when they become “fixed.”

Original works of authorship aren’t limited to literary works. Musical works and lyrics, choreography, graphic and sculptural art, motion pictures and videos, sound recordings, architecture, and certain compilations and collections are among the works can be original works of authorship under copyright law.

To be copyrighted, a work must be fixed – it can’t just exist in the author’s mind. A work is “fixed” when captured in a sufficiently permanent medium such that it can be perceived, reproduced, or communicated for more than a short time.

Copyright Protection is Automatic

Many people believe that a copyright isn’t effective unless it is registered. In the United States, every original work of authorship is automatically protected by copyright when fixed. Lest there be any confusion, posting a photo, video, article, or other work on a website causes the work to be fixed, so it is subject to copyright.

Registration and copyright notices may be beneficial to authors. But an author need not register a work for it to receive copyright protection. Likewise, a copyright notice isn’t required for a work to be protected under copyright law.

Copyright doesn’t only protect the right to make copies of a work. It also protects the right to publicly perform or display a work, sell, lease, or lend copies of the work to the public or prepare derivative works.

Other Legal Protections For Commercial Use

Copyright law isn’t the only law that might apply, particularly when a work is used for commercial purposes. For instance, several states recognize the right of privacy or right of publicity that prohibits the use of someone’s name, likeness, voice, or other recognizable feature for commercial purposes.

Only 14 states – California, Florida, Kentucky, Massachusetts, Nebraska, Nevada, New York, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and Wisconsin have right of publicity statutes. Other states recognize a common law right of publicity.

Maryland, where I’m located, recognizes uncompensated appropriation of an individual’s name or likeness under the right of privacy. This right most commonly applies when a celebrity’s name or likeness is used for commercial purposes without permission. However, under the 1984 case Lawrence v. A.S. Abell, the Maryland Court of Appeals held that a right of publicity applies where a party has “unconscionably permitted to enrich himself at the expense of others.”

Laws relating to trademark and unfair competition also may apply to commercial use of someone’s name or likeness, particularly if the use gives the false impression that that individual endorses a product.

The Public Domain Isn’t a Place

Some people believe that the public domain is a place similar to a public square. They think that because everyone can access the Internet, everything on it – or at least everything that isn’t behind a paywall– is in the public domain. But the public domain isn’t a place – it describes who owns copyright and similar rights. So, when a work is in the public domain, the public, rather than the author, owns the copyright.

Some authors voluntarily relinquish any copyright they otherwise might have to a work.

Works can find their way into the public domain by several means. Works by the United States government and state and local government works (e.g., the text of statutes and regulations) are in the public domain.

A work also will be in the public domain after its copyright expires. Music by Bach, Beethoven, and other composers can be freely performed because any copyright has expired.

But that doesn’t mean someone can copy the printed music or audio recording of works by those composers. The publisher or editor might have a copyright in a particular edition of a public domain work, or a recording company may own the copyright to the audio recording.

Best Practices

These laws require complicated legal analysis, which can be highly fact specific.

The best practice is to assume that everything is subject to copyright or other legal protection and not to use other people’s works, name, or likeness without their written permission, preferably after consulting an attorney.

How does one get permission to use a work?

  • Licensing – websites such as iStock offer images, photos, and other visual works for use upon payment of a license fee. Even if someone pays a license fee, they should read the license to understand its scope before using a work. Some licenses limit the number of uses, require attribution, or otherwise place limits on how the work can be used.

  • Creative Commons – Creative Commons, Wikimedia Commons, and similar sites offer several types of licenses for works. But it’s important to note that just because a work is on these sites doesn’t mean it’s fair game for all uses.

  • Get Permission – For a less formal use – such as copying an amateur video of a child’s concert – it might be sufficient to get written permission to use the work. However, when obtaining consent, it’s important to carefully describe how the work will be used, and the work should only be used if permission is granted, the work should only be used that way.

  • Create Your Own Works – I take my own photos and videos of my child and cats for posting on social media. I also create my own content, such as this article, for my website. Because I created those “works,” I own the copyright and may use those works as I see fit (but others may not).

  • Beware of “Layers” of Legal Protection – Some works, such as music videos, may include several layers of protection under copyright and other laws. For example, the person who created the video owns the copyright to the video itself. But the composer of the music performed owns the copyright to the music. And the musician could have the right of privacy or publicity – to name a few possible layers. Also, a work or right may be protected under both federal and state law or even under the law of another country.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.

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