‘Tis the season . . . to stay off the copyright “naughty list” . . . so here are some tips for avoiding copyright infringement—not only through the holidays, but all throughout the year:
SONGS (AND LYRICS) ARE PROTECTED BY COPYRIGHT
During the holidays, it’s tempting to blog or post the lyrics to favorite carols or celebratory songs—not only on your website, but on Facebook and other social media sites as well. Unfortunately, reproducing lyrics, or poems, in their entirety often violates U.S. copyright law, because lyrics and poems are protected by copyright until they enter the public domain at the expiration of the copyright term.
Posting an excerpt is often permitted under the “fair use” exception to copyright law. However, despite what you often hear online, there is no absolute “fair amount to use.” Popular myths like “two [or five, or six] lines is always okay” are just that: myths. In reality, there is no “bright line” test for copyright infringement. The actual legal test involves the evaluation of four different factors based on the specific “facts and circumstances” of the use.
If you want to share a favorite song or poem, you’re better off quoting the title, or a line or two and then sharing a link to an authorized website that reproduces the work with permission from the copyright holder, or to a video showing an authorized performance of the work.
RECIPES ARE NOT PROTECTED BY COPYRIGHT…EXCEPT WHEN THEY ARE.
Copyright law protects creative expression, but does not protect “functionality” or “facts.” Ingredient lists and basic, functional steps to combine the ingredients in a way that creates a specific type of food is generally considered a functional process, for which copyright is thin (and sometimes, nonexistent). Generally speaking, that means it’s OK to share a recipe.
In fact, U.S. courts have ruled that recipe ingredient lists are merely “statements of facts,” which are not copyrightable, and that factual parts of the recipe’s directions (meaning the instructions regarding combination of the ingredients and the manner in which they’re cooked) are not copyrightable either.
However, creative portions of recipes – including the way the instructions are given and any anecdotes, “tips and hints,” and humorous asides are copyrightable. In other words: you generally can’t reproduce a creatively-worded recipe verbatim, especially if you try to claim it as your own. That said, you probably can share a recipe, translated into your own words, as long as you stick to the functional elements and write your own hints, tips, and “bonus material.”
But Please Remember: in recipes, as in life, ethics matter. While it may be “legal” to strip down and reproduce someone else’s recipe without attribution, it’s not very ethical. If you love a recipe someone else created, it’s better to share your experiences making it (with photos!), and also attribute—perhaps even with a link to the source. You could also share the ingredient list and instructions, and link to the source for tips and creative content. If you have no way to offer a link, it’s also nice to mention the name of the person who created the recipe (if you can).
ALL PHOTOGRAPHS ARE SUBJECT TO COPYRIGHT. NEVER USE SOMEONE ELSE’S IMAGES WITHOUT PERMISSION.*
It’s tempting to copy not only a recipe but also the original photographs that go with it. Don’t.
ALL photographs are subject to copyright until they enter the public domain at the expiration of the copyright term.
Reposting or reproducing someone else’s photograph without permission is copyright infringement (read: illegal). Take your own photographs instead, or get permission from the person who owns the photo before you share or reproduce it.
Don’t feel badly if the photos you take aren’t picture-perfect, either. In fact, it’s often the photos with character that add the most to a social media post. Anyone can find an image of cookies glittering with perfectly-positioned frosting and sprinkles. But your “cookies-with-faces-for-radio,” Toddler’s Own Cupcakes, and “Pumpkin_Pie_Bonfire_101” photos will give your feeds, and your readers, true holiday cheer.
* Because someone always asks: it’s not copyright infringement to “share” someone else’s Facebook post, or to use a “share” button on a website to share content using the automatic systems embedded in and used by the website itself. In those cases, the creator has given permission for the sharing to occur (and Facebook automatically provides a link to the original source). What you can’t legally do is save the image and create a new post of your own using someone else’s image or content.
YOU DON’T NEED SOMEONE ELSE’S CONTENT TO BE INTERESTING.
Because this post had a lot of “don’t’s,” I wanted to be sure to end on a “do”: remember that you are interesting, fun, and creative (even if you think otherwise!). If you’re looking for something unique to share this holiday season, congratulations! You’ll find it in the mirror, through the viewfinder of your camera, and in your heart. Share your adventures, experiences, traditions, hopes, and joys. Share your art. Share the things that make you smile. And never forget: you don’t need someone else’s content to be interesting.
You are interesting, and worthwhile, just the way you are.
Happy Holidays to one and all!