
Happy Holidays!
‘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!
About Susan Spann
Susan Spann writes the Hiro Hattori Novels (Shinobi Mysteries) featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo, who solve mysteries set in medieval Japan. Her first novel, Claws of the Cat: A Shinobi Mystery (Minotaur, 2013) was a Library Journal mystery debut of the month and a finalist for the Silver Falchion Award for Best First Novel. Her fourth Hiro Hattori novel, The Ninja’s Daughter, releases August 2, 2016 from Seventh Street Books. Susan is the 2015 Rocky Mountain Fiction Writers’ Writer of the Year, and also a transactional attorney whose practice focuses on business and publishing law. She founded and curates the Twitter hashtag #PubLaw (for Writers), where she answers questions and provides information about publishing business and legal issues. When not writing or representing clients, Susan enjoys traditional archery, reading fiction and nonfiction, and raising seahorses and rare corals in her marine aquarium. She lives outside Sacramento, California, but you can find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), or on Facebook/SusanSpannBooks.
Great tips. Thanks, Susan, and happy holidays to you — unless that’s a copyrighted statement, in which case, never mind. :-)
Happy Holidays to you too!
Susan, perhaps add something about photographs, say, published or displayed under the designation of “Creative Commons”?
My favorite haunt on Flickr…
Hear, hear!
And happily, photos aren’t the only things available under CC licenses. You can, for example, find CC-licensed performances of public domain songs which are free to reuse – unlike All Rights Reserved performances of public domain songs, which aren’t free to use, even though the song itself is.
All I want for Christmas is… a straightforward user-friendly copyright system!
You and many others, Deborah! The U.S. system is very complicated, and can be difficult to navigate when it comes to permissions. Part of the performance issue is that performances are themselves protected by separate copyrights (confusing at times!) – which is why some performances can be rights reserved and others are released. It generally depends on the decisions of the performer, or in some cases the venue.
Thanks for mentioning this Don! Creative Commons (or CC) is a form of licensing that photographers and other creative people can choose to grant (or not) – so works that say they’re available under the Creative Commons license can be used in the manner that license permits.
It’s important to note that Creative Commons normally does NOT permit uses that earn the user money (for example, use on the cover of a book) so it’s important to check the intended use against the Creative Commons license text (available online) to ensure the use is actually permitted.
It’s also important to realize that only photos and other items offered under the Creative Commons license – meaning, the ones that actually say they can be used that way – can be used and attributed under Creative Commons. You can’t just pull any photo from the Internet, use Creative Commons attribution, and use the photo.
I normally recommend that authors and bloggers shoot photos of all kinds of things (cell phone cameras are awesome) and create their own “B-roll” – something I’ll blog about at my next chance here!
“Creative Commons normally does NOT permit uses that earn the user money” – really?
I understand only the three Creative Commons licenses which include the “NC” – NonCommercial – element (out of seven licenses total) prohibit uses that earn money. If there’s no NC, commercial i.e. money-earning uses are permitted.
Using CC images for my blog, I’ve found the majority of CC-licensed images are CC0 or CC-BY, sometimes CC-BY-SA.
It is, as you say, very important to check the details of the license on each specific work.
Thank you, Susan! I’m using one line from a song by a singer/songwriter I love because the words encapsulates the mood of my story. Would permission be required?
Just this morning I was researching if the words to “I’ll Be Home for Christmas” are under copyright (they are). So this article is timely for those of us who may be writing Christmas stories. Thank you!
Glad to help!