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How To Use Content: Practical Guide For Creatives

Posted by attorney Tudor Capusan

Content you can usually use without restriction

Original content you've created from scratch

If you made it, do what you please with it. Copy, distribute, display, sell, license, or destroy it.

Practical Tip 1 – when you do work for a client – Unless there's a work-for-hire clause in your written agreement with the client, you retain copyright in the content you create even if the client pays you for the work. As a client relations gesture, you can give your client an assignment of copyright form, but don't hand over the rights until you get full payment.

Practical Tip 2 – when you collaborate with others – If you work with others, negotiate a collaborating agreement to make it clear whether the work will be jointly owned, or whether you will allocate ownership in a different way. These discussions can be uncomfortable, but it's a lot easier to have them before actual issues arise.

Practical Tip 3 – when you use pictures of actual people – Get written permission (model release forms) to use people's likenesses whenever possible. This may protect you from legal claims that relate to false statements, invasion of privacy, or commercial uses of the person’s likeness and image. You generally don’t need a release to use a person’s name or image for editorial purposes, such as when informing, educating, or expressing opinions protected by free speech.

Content your employees create for you

The content your employees create for you belongs to you (or your company) if created within the scope of employment. For example, if you run a design firm, the firm owns the content created by your designers.

Content you purchase outright – Make sure that the seller assigns all rights to you in writing. If it’s not in writing, you don’t own it. Purchasing ownership can be prohibitively expensive (and overkill, unless you're doing work for a client – see Practical Tip 5 below), so most people opt to license instead (see below).

Public domain content – Content that is in the public domain belongs to everyone, so you can use it however you please. Note that if you modify a public domain asset sufficiently, you can copyright the resulting work yourself. So what's in the public domain? For one thing, any content published prior to 1923; also, anything that's been expressly dedicated to the public domain. There are search engines that can help you find public domain assets, but be careful because, as a practical matter, it can be pretty difficult to tell reliably whether content is truly in the public domain.

Content you can use with restrictions

Content for which you've obtained a valid license

Your license agreement will spell out what you can and can't do with this content, so read the agreement carefully. Before you pay for the license, make sure that the licensing terms will allow you to use the content in all of the ways you need.

Practical Tip 4 – when the owner allows you to use the work for free – Permission to use content for free is still a license, so make sure you get it in writing and that you use the content in accordance with the agreement.

Practical Tip 5 – when your client wants ownership of the work you produce – Clients typically want to know that you have full rights to any content you produce. They might require that you sign a work-for-hire agreement in which you warrant that you own the work that you produce. This means you won't be able to use licensed content, because licenses give you some rights but not full rights.

Practical Tip 6 – when your client accepts some licensed content from you – This rarely happens because clients don't want to be restricted in the way they can use your work. Even if your client accepts some licensed content from you, be careful! The license you obtain may prevent you from assigning your rights to others (in this case, to your clients). Rule of thumb for freelancers: it’s best to stay away from licensed content.

Practical Tip 7 – when you use “royalty-free" images or video– Despite the misleading label, you can't use this content freely!!!“Royalty-free" doesn't mean free – it just means you pay a flat fee upfront as opposed to a royalty for every use. It's a marketing term designed to trick you, so don't fall for it. It's still a license, and you still have to pay for it.

Practical Tip 8 - Creative Commons content – Again, you can't use this content freely!!! Although you don't have to pay for it, you're still stuck with the Creative Commons license terms (of which there are different types). That means you can only use these assets in particular ways that the content creator has Okayed. Each asset subject to a Creative Commons license should have a license icon – click on it to read the restrictions.

Content you generally can't use without paying or getting permission

Copyrighted content – Unfortunately, most content falls into this category. The owner of a copyrighted work has the exclusive right to use the work. You can contact the owner to request permission to use it. Barring that, you can usually license it for a fee or buy it outright.

Derivative works – These are works that are derived from an original work, hence the term derivative. Only the owner of an original work can make derivatives of that work. As part of the creative process, you can certainly look to others' work for inspiration, but you can't modify someone else's work, even if you provide attribution.

And finally, a couple of words about fair use

Fair use is a great idea, but in practice its inherent subjectivity, as well as its status as an affirmative defense, make it dangerous to rely on. Check out the Resources section below for a couple good starting places to learn more about fair use. The Center for Social Media site contains best practices guides for various media industries, which is a great place to start. As a rule of thumb though, if you plan to lean on fair use, consult with a lawyer first to help determine your level of exposure to a lawsuit.

Useful links on this subject

Fair use

AmericanLibrary Association's fair use evaluator

Center for Social Media's fair use best practices guides

Creative Commons

Creative Commons


Terms of service

Electronic Frontier Foundation's terms of service tracker

Written in collaboration with Ilya Kushnirsky of bklynlegal.

First published on 4/19/2012 at NYU Poly Dumbo Incubator, event sponsored by Docracy (thank you @UberVero).

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