Have you ever wondered where the line is between inspiration and infringement in a world and society driven by the norms of social media? The line is getting thinner and thinner because we’ve been trained to not only repost other people’s content but also encourage them to do the same with ours. We’ve begun to see this as a form of engagement, which, of course, has its value, but has it also diluted our understanding of how to respect each other’s intellectual property rights? I believe it has. In this blog, we’ll talk about not only how you can advocate for your intellectual property rights but also ensure you’re respecting the intellectual property rights of others.
Two Types of Infringement
Infringement can be classified as either: trademark infringement and copyright infringement.
Trademark infringement is when one mark is “confusingly similar” to another mark that a consumer can hardly identify the source of the product or service.
Similarly, a copyright infringement is when someone has created a derivative work that is substantially similar to the point that you can hardly identify the creator of the derivative work from the creator of the original work.
Between the two types of infringement, we’ll focus more on copyright infringement, which tackles content in this blog post.
An In-Depth Look Into Copyright Infringement
As the famous French Enlightenment writer, Voltaire has said, “Originality is nothing but judicious imitation.”
This seems to be true because after all these years, how can there possibly be new ideas? But what’s important is identifying the sources of inspiration. Like Voltaire said, one should be judicious and intentional about how they act on the inspiration that lights them up.
One tip I tell my clients, whether they’re the creator themselves or have a team of creators, is when they begin the creative process by looking for inspiration, they should always document each source of any inspiration.
At the end of the day, once you’ve created your new and supposedly original work, you need to go back and look at the inspiration to ensure that what you’ve created is original work—not substantially similar to the work of another.
Not only will this documentation be beneficial if a claim should ever arise but it will also help you verify and feel confident that your work is truly original. The more sources of inspiration and the less it relies on a single source of inspiration, the stronger your claim to copyright.
In short, the more original your work, the stronger your copyright will be, since it will also be easier for you to decipher that your work is original compared to anybody else’s.
Tagging or Crediting
Another thing that can prevent copyright infringement is tagging or crediting the content creator when sharing work that inspires you. As I’ve mentioned above, we’re so familiar with the concept of reposting that sometimes, we tend to forget the value or reason why we tag somebody when reposting their content—to give credit where credit is due.
This is important because you need to ensure that when you’re reposting somebody else’s content that inspired or lit you up, you’re tagging them in it and not just taking their content out of context.
On the flip side, I want to remind you that just because somebody tags you or gives you credit doesn’t mean they have the right to republish your content. You still have the right to say or request that they take down your content if their use is out of alignment with your vision or rights, regardless of you being tagged or credited. Similarly, if someone reposts your content or uses it as if it was their own, you also have the right to advocate for yourself and request that it be removed or that credit be given where credit is due.
How can I reach out to someone who I believe has infringed my content?
The first thing you can do is to reach out to them directly and assume there was no malicious intent by their reposting, tagging, or repurposing your content. If that falls on deaf ears or they believe you don’t have a valid claim, know that you have self-help resources available to you on every platform.
Look for the Copyright Infringement Form available on Instagram and Etsy. These platforms have teams that will review the content you’re flagging and they have the authority, if they believe infringement exists, to take it down—independent of any approval or action from the person who repurposed or reposted it.
Of course, it’s always a great idea to get screenshots and document everything as proof. If you need to take matters into your own hands and go one step further, like writing a cease and desist, you’ll have the proper documentation to validate and confirm the claims you’re making. So, make sure you have a record of your content and the dates it was originally published along with a record of the infringing content.
When is it okay to lean into inspiration?
So, we’ve already discussed respecting the rights of others and advocating for your intellectual property rights. But when is it okay to lean into inspiration while ensuring that your work remains original from that inspiration and doesn’t cross the line of infringement?
There’s a doctrine called the “Fair Use Doctrine.” This is an exception to the Copyright Act that makes it legal to use copyrighted works without obtaining the author’s permission. With that said, the Fair Use Doctrine is only allowed in certain limited circumstances, including scholarly works, news reporting, criticisms, teaching, and parody.
What lies at the heart of fair use and makes it distinct from copyright infringement is that the derivative work or “influenced work” is actually trying to play into the consumer’s awareness of the original work.
Fair Use vs. Copyright Infringement
But how can you really distinguish between fair use and copyright infringement?
When caught between the key difference between fair use and copyright infringement, try asking this question: Did it transform the original work?
The derivative work (or the one that came after or was influenced by the original work), is relying on the consumers or public to recognize that there’s some similarity between the original work and the derivative work, to the point that there’s an ode or a nod to the original work so that it’s very clear that they’re not one in the same and doesn’t confuse the identity creator.
But the transformative nature of work isn’t the only factor that separates fair use from copyright infringement. The court will first look at the nature, amount, and substantiality of the copyrighted work that appears and is used in the derivative work, as well as, if the derivative work may affect the market value of the original work. The fair use by the derivative work shouldn’t hurt the original creator’s ability to profit and reap the benefits from their creation.
So, if a court were to determine that an unlicensed derivative work would negatively impact the original work’s market value, the derivative work is likely copyright infringement.
To sum it up and ask yourself:
- What’s the nature of the work? The less unique and substantial the creative effort, the less likely a derivative work would be considered infringement.
- Did they transform my original work? The more that the derivative work added something new with a further purpose or different character and doesn’t attempt to substitute the original use of the work, the less likely a derivative work would be considered infringement.
- Has their derivative work affected the value of my original work? The less impact to the value of the original work, the less likely a derivative work would be considered infringement.
- What’s the amount of my original work that’s used in their derivative work? The fewer the elements from the original work that appear in the derivative work, the less likely a derivative work would be considered infringement.
Unfortunately, we live in a world where not everyone will understand the value, effort, and investment you’ve put into content creation. So, remember to advocate for yourself. You can rely on the Digital Millennium Copyright Act, which is the reason why all online platforms have copyright infringement forms—to allow you to advocate for your rights on their platform.
I encourage you to document everything, whether it’s you and your team during the creation process or in the event of an infringement. When you publish something new that you’re really proud of, document it and have a timestamp of when it was released into the world. Remember, your claim is going to be stronger with the first use.
Last but not least, don’t be discouraged that some people feel as though social media has fueled a disrespect for intellectual property rights. Don’t feel that it leaves you with no room just because everybody is doing it. The more of us that stand up for our rights and respect others, the more we can turn the tide on how intellectual property rights have been a little watered down—or at least people’s understanding of them.
Like anything else, no one will advocate for your business and your vision but you. So, take the steps I’ve tackled in this blog and make sure you lean into originality and advocate for your vision. In the long run, this will ensure that you own your content and you own your brand.