Best practices in copyright content and media usage are essential theory for marketers. Without a proper working knowledge, you could leave yourself and/or the brands you represent vulnerable to intellectual property theft, or in legal trouble.
This guide covers the two sides to this subject that have most relevance to marketing practitioners:
As most of our readers are in the United Kingdom, we’ll be referencing UK law only in this article. If you’re joining us from elsewhere, we would advise finding a resource that’s purpose-built for your locality.
A good step towards legally protecting your web content is to add a Terms and Conditions page to your site, outlining what visitors may and may not do with the content they find there.
In all likelihood, you do not want others to use your content without your permission and/or for commercial gain. Outlining this in detailed legal language on your site will help you make your case in the event of someone infringing your copyright.
The ideal approach to this would be to get a legal expert specialising in digital or commercial law to write up your terms (you may have someone who can do this in-house; otherwise you’ll need to commission an external contractor).
Alternatively – and this is a far less robust option – you could use one of the many T’s & C’s templates which are available for a fee or free-of-charge online, taking care to ensure the terms needed to protect your content are included. Whatever you do, don’t simply copy someone else’s T’s & C’s, as that would be exactly the sort of copyright infringement we’re trying to avoid!
One of the worst possible content theft scenarios is when somebody uses your content in an irresponsible or illegal way (e.g. committing libel against a third party by making out content which you presented as opinion to be a statement of fact).
You can guard against the risk of being tarred by such a misuse by including a disclaimer in your Terms & Conditions, disowning responsibility for third-party usages of the content. It’s also good practice to add such a disclaimer to individual content items that would be especially likely to cause risks to consumers when taken out of context. Recipes are a prime example. Let’s say you’re a food blogger and you are posting a recipe containing allergens. In that case it might be advisable to add a disclaimer to your terms and conditions stating that you will not be held responsible for any illness or injury resulting from a third party republishing your recipe without the appropriate health warnings.
Copyrighting the content, design and code of your website is a simple process which needn’t cost a penny – because essentially, UK Law does it for you.
In the UK, you automatically get copyright protection as soon as you create a piece of work, whether that’s a song, a story, a website or a piece of software. This prohibits others from distributing, leasing, uploading to the internet or publicly transmitting your work, unless you’ve given or sold them the right to do so.
Everything you produce is protected under copyright, but there are a few steps you can take to make that protection more reliable:
The duration of copyright on a work depends on which of the following categories it falls under:
In practice, the rapid pace of change in marketing content and digital technology means we needn’t worry too much about our copyrights expiring, as marketing practices will surely have moved on to such an extent that we’ll need totally new content by the time they run out.
Every copyright holder is responsible for enforcing their own copyright.
If someone has copied your content and you deem the infringement to be relatively minor, we would advise you to first contact the offending party via a Tweet or other social post, requesting they cease using the content. If they then fail to do so, you can refer the matter to the Copyright Tribunal.
In the event of a more major incident, such as repeat infringement by a certain party or infringement by a major competitor, you should seek specialist legal advice.
Using third-party content is an intrinsic and perfectly legitimate part of marketing – especially in the digital realm. Without it, we wouldn’t be able to refer to current events, theorise about our industries and interact with one another as freely as we do now.
The circumstances in which using third-party content is justified can be broken down into two main categories:
Let’s take a look at the best practices surrounding these two sides to third-party content usage.
Acquiring a licence is the best option if you wish to use a large section or the entirety of a third-party work, e.g. using someone’s music to soundtrack a video, or using an iconic image to create a visual aid.
To do this, you’ll need to make a contractual arrangement with the copyright owner(s), which will usually involve paying them. Sometimes the original creator will still hold the rights to the work, but in other cases, the rights may be held by a third party, such as a publisher or record label.
When obtaining a licence, it’s important to pay attention to the terms of your agreement. They should entitle you to use the content in all the ways you need to, and for the required duration. Here are some pointers on obtaining licences for the most commonly used types of content:
Not many companies or marketing teams have an in-house composer to create original music for their marketing activities. We must, therefore, search externally for music to accompany our video content (and in some cases, our presentations, apps and websites).
If you are commissioning an original composition or are obtaining a licence for a composition which is owned exclusively by the composer, you can create a bespoke agreement with the composer to suit your needs.
Or, if you wish to use a composition which is owned in part or fully by a publisher and/or record label, you’ll need to obtain two separate licences. Most well-known and high-quality music tends to fall under this category.
First, you’ll require a synchronisation licence from the song’s publisher. This clears you to use the song itself. Second, you’ll need to obtain a master licence from the record label that owns the rights to the recording.
Some record labels have dedicated websites for music licensing – for example, Sony Music.
If you don’t have a specific piece of music in mind for a project, we’d recommend looking at dedicated music licensing services, such as Boost Music, which can provide easy access to extensive libraries of music available for license.
Another good option is Artlist.io, which provides access to an extensive library of compositions for a monthly fee starting from $16.60.
Rather than buying licences to use individual images, most marketers and companies tend to sign up to use libraries of stock images for a recurring fee. The industry-leading library, iStock by Getty Images, offers a vast array of royalty-free images and video clips, with yearly subscriptions ranging from £19/month to £45/month.
The drawback to using free libraries is that you may find yourself using the same images as other players in your sector. To ameliorate this effect, you should consider using a stock image library for lower-visibility uses like blog posts, and buying exclusive licences from alternative sources for more prominent uses such as homepage imagery.
Whether purchasing rights from a library like iStock or from the original content creator, you should always take care to ensure the rights you’re getting cover the usages required. For example, do you need online rights only, or will you need print publication rights too? It’s easy to assume that because you’ve used a licensed image in printed artwork, it’s fine to use it online too – but that will not necessarily be the case.
An alternative (zero-budget!) approach to securing third-party images is to search for images offered on a Creative Commons licence. This means the creator has made the image free for use by others (though this may come along with certain requirements, e.g. including an attribution to the creator, or reproducing the work in an unaltered form.) You can search for Creative Commons images at flickr.com/creativecommons. There are also dedicated libraries that specialise in creative commons licensed images that can be free to use or which just require you attribute the original creator of the image. Take a look at services like Unsplash who specialise in images which are free to use.
Every organisation should have an asset management system for managing its content licenses. This will help prevent misuses by your team, and the resultant legal challenges or additional charges which may ensue.
Referencing other people’s work in your own content can be perfectly acceptable, even if you haven’t obtained permission to use it, provided the usage meets the criteria for what is legally known as “fair use”.
As per the UK Copyright Service’s Copyright Law Fact Sheet P-09:
“Fair use sets out certain actions that may be carried out, but would not normally be regarded as an infringement of the work.
The idea behind this is that if copyright laws are too restrictive, it may stifle free speech, news reporting, or result in disproportionate penalties for inconsequential or accidental inclusion.”
Accepted “fair uses” of content include news reporting, educational use, private use, and incidental (i.e. accidental) inclusions.
In the field of content marketing, this opens up various opportunities to create content which references the work of others, for example:
Usage along these lines is classed as fair use – but only under certain provisions:
Companies that breach fair use requirements by copying large sections of content without justification (or by copying other people’s work in its entirety) will not only face the risk of a legal challenge, but also that of search ranking penalties from Google and other search engines. The search “spiders” used to analyse content can detect where content has been duplicated, which enables search engines to hit plagiarists with search ranking penalties.
What constitutes fair use can vary greatly depending on the type of content used.
For example, in YouTube videos you can use up to 15 secs of anything – but if you use any more than that, the YouTube algorithm will class that as a breach of their own fair use terms and conditions. However, don’t make the mistake many have that because within YouTube its ok to use 15 seconds of video content that this gives you permission to use 15 seconds of video you find there anywhere. That’s not the case and you could potentially get yourself into legal hot water for assuming that.
Poetry, meanwhile, is one of the trickiest types of third-party content to use from a fair use perspective. We have certainly worked with publishers who strongly discourage authors from making any use of poetry or song lyrics in their books because inserting just a few lines can constitute a major use. If you intend to use a section of a poem in your content, bear this in mind, and only use the portion you really need. A better option might be to commission some new verse from a contemporary poet – just as Nationwide did for their much-talked-about Voices campaign:
The law on fair use is ill-defined, and as such, knowing whether a certain usage can be classed as fair is largely a matter of common sense. Can your usage of a third-party work truly be considered as adding unique value to public discourse around the subject – or could you be accused of simply cashing in on someone else’s intellectual property? Ask yourself this question whenever you’re planning on using third-party content without a licence.
Fair use requirements are the bare minimum you need to do to justify your use of third-party content – but what you should really be aiming for is to make people feel pleased that you’ve referenced their work. This is best practice in terms of both PR and corporate relations.
Ways to do this include:
Be aware that complimenting content providers does not in anyway cover you for legal fair use of their content. It is a lot more transparent, and it is a much more polite way of conducting references when you make them.
How to manage content copyright and media usage
Now that we’ve covered the basics of content copyright and media usage, your next step is to research further into the specific situations that will apply to your work. Which types of content will you be protecting or using, in what contexts will that content appear, and what best practices and regulations apply to each case?
After that point, it’s all about monitoring and management of the content you own and use within an asset management system – whether that’s an off-the-shelf solution or a bespoke one. Regular auditing will keep your own content safe, and your usage of third-party content legitimate.