Does your company’s website include or link to third-party content?  If so, there are potential legal issues that may arise under copyright law and website terms of use that can be minimized or avoided by implementing some best practices. 

This guidance provides a brief overview of the legal issues and some action items to consider when using third-party content on your website. 

Basics

• Federal Copyright Law
  • A wide array of works are protectable under U.S. copyright law.
    • For example, photos, pictures, books, text, songs and videos are protected by copyright.
    • This means that the copyright owner(s) has the exclusive right to control how the work is copied, modified, distributed, performed or displayed.
  • Just because photos, songs and other materials are available on the Internet or other digital environments does NOT mean that such materials can be copied, distributed, performed or displayed without violating the rights of others.
  • Photos on the Internet are sometimes posted by parties who have not obtained permission from legitimate copyright owners; such unauthorized use may constitute infringement.
  • Third-party use of such photos may also constitute infringement.
  • Be suspicious of online assurances that material is “in the public domain” or “free for use.”
  • Do your own due diligence; don’t rely on assertions made by others.
  • Multiple individuals may have rights in a single photo, book or music video, meaning that you may need to obtain permission to use content from multiple individuals.
• Website Contracts
  • Website “Terms of Use” or “Terms of Service”
    • In addition to copyright issues, consider whether any terms of use apply to the material you are thinking of using.
    • All major social media platforms have terms of use (e.g., Twitter, Facebook, Instagram, YouTube[OO2] , etc.).
    • Read them carefully.  The terms apply to the content you use and the content you post.

Best Practices for Clearing Copyright in Third-Party Content

Rights Clearance

• When planning use of third-party materials, you must ensure that all appropriate licenses and permissions are in place.  This process is known as “rights clearance.”
• The basic process requires you to:

1. Identify all copyrightable content that you plan to use (e.g., a photo).

• Remember a single work, such as a music video, may include multiple copyrightable elements of the work (e.g., the lyrics, musical compositions and sound recordings are each subject matter of copyright).

1. Identify owners of applicable copyrights or all agents, licensees or others with authority to grant permissions.
2. Determine whether a license or other permission may be required.
3. Secure the necessary licenses and appropriate written permissions.

Linking to Third-Party Content

• Generally, it is permissible to provide a link (or “hypertext” link) to a third-party website, but check to see if a website has indicated that linking is not allowed.  Anything more than linking may lead to liability.
  • Framing
    • We do not recommend, for example, “framing” a third party’s website content on your website.  In other words, instead of taking your website users directly to the linked third-party website to view the content as it was originally presented, the information from the third-party website appears directly in a “frame” on your website.  We do not recommend framing because framing may lead to copyright infringement liability based on you making an unauthorized modification of the linked content without the third party’s permission.

• Other Considerations
  • If you would like to provide links to a third-party website, and that website has indicated that linking is not allowed (e.g., with a message on the website or a notification to you), we do not recommend linking to such website, unless you obtain express permission.

General Recommendations

You should:

• Take the position that permission will be required whenever third-party content is to be used.
• Establish and maintain a database of your own copyrighted images and other content (such as if your employees have taken photos or created original images as part of their employment duties for the company).
• Establish and implement a policy that requires employees to use only images, music and videos from the internal database or resources with which you have existing subscriptions or licenses that cover anticipated uses.
• Train and educate employees on the policies and best practices discussed in this document.
• Ensure that the license and permissions you secure cover the intended and actual use and duration of that use and consider whether the permission granted contains any applicable restrictions.
• Always consider all anticipated uses in order to facilitate permissions negotiations and avoid later pitfalls; a license for one use does not typically extend to additional uses.
• Always maintain clear records/backup for the various permissions obtained.
• With respect to any live events, make sure the venue has licenses that cover your choice of music and performance modality.
• With respect to any live events, make sure to include in any audience handouts and in any live introduction that no photographs, videos or other recording of the presentation is allowed.
• Always verify or request verification of permission for the copyrighted works of others used in presentations before broadcasting or recording and redistributing the works via recording.