Fair Use and Proper Marketing Practice (Using Famous Characters in Marketing)

It may be tempting to play fast and loose with copyright law on the internet – everyone just uses other people’s work all the time, don’t they? While this may be the case, it doesn’t mean it’s okay; even the Huffington Post recently got slammed by webcomic The Oatmeal for hyperlinking to The Oatmeal’s comics without proper attribution. If you want to use someone else’s copyrighted work in your marketing material, you either need to get permission or stay within the fair use exemption.

You may not be a lawyer, and getting advice from one can cost major dollars, so our goal in this post is to simplify copyright law for you, so you know how to market your business – the legal way (and even explain the Fair Use exemption for you)! If you want to use James Bond, The Three Stooges, or any other famous movie or television character in your marketing then read on! As the icing on the cake, we’ll look briefly at how to protect your own intellectual property.

What is Copyright and How Does it Work?

Copyright is one form of intellectual property protection for original works. It protects the use and distribution of that original work.

An “original work” can be anything from a book, play, movie, or musical composition, to a digital image, painting, industrial design, or sculpture. Copyright is automatically granted to a work that is original but can also be officially registered with your country’s intellectual property office. For example, the U.S. Copyright Office is where you would look to register your copyright if you are based in the US.

If you want to use someone else’s image for your marketing materials, and it is an original work, it will be subject to copyright laws. This means that you can’t just go ahead and use the image however you would like. If you see a copyright notice on a work such as a website, it means that the owner of that work is claiming copyright in it. Here’s what the copyright notice typically looks like, from over at TermsFeed:

The copyright notice consists of the owner of the copyright (TermsFeed), the Copyright ‘c’ symbol, and the year of first publication of the copyrighted work (in this case, the website design).

The copyright notice is not required for copyright protection to be afforded to the original work, but it protects against infringement by clearly showing that the owner of that work intends to protect copyright in that work.

Copyright and Your eCommerce Store

You can protect all of your images and text without registering them with the Copyright Office. What should you do? In your ‘Terms of Use’ and/or in your footer you may want to note that everything on the site is protected by copyright law.

Here’s the exciting news! To every rule, there is an exception, and copyrights are no different. Do you want to use movie clips or images of movie stars in your marketing? Let’s see how you can do that!

What is Fair Use?

Fair use is basically an exception to the normal copyright rules that allows you to use an original work for your own purposes, such as an image from a movie or TV show. The nuances of fair use differ country to country, but most follow the same general rules.

There are four main factors for determining fair use in the US, so let’s get started and figure out whether a proposed use may come within the fair use exception or not.

How Do You Figure Out if Your Use is Fair Use?

The four factors are as follows.

(1) Purpose and character: For marketing, your purpose is essentially a commercial one. This means that your use of the work is less likely to be ‘fair use’, unless you meet most of the other criteria. Fair use purposes are typically uses like education, commentary, or critique.

(2) Nature of the copied work: Is it an original work, but on a relatively generic topic (e.g. an image of a cat); or is it an original work that has very little comparable works, e.g. a famous Monet painting? Is it artistic in nature, valuable, or very lucrative? If the image is more generic, it’s more likely to be fair use if you want to use it.

(3) Amount and extent: Are you copying the work in its entirety, or using just a portion of it? If you want to use an image from, for example, the movie Batman Returns, that image would be one small fraction of the entire movie (which is what is copyrighted). Using one single image for marketing purposes is likely to be within the fair use exemption; if you wanted to play a video of half the movie on your blog post though, that’s another story.

(4) The effect that your use will have on the original work’s value. If you create copies of the original work, will the original work lose value?

What you need to know! → So you want to use a picture of Britney Spears from a music video or George Clooney from one of his commercials or movies? If you are just using one image, you are probably okay, especially if you are editing it to match your content.

In Leibovitz v. Paramount Pictures Corp, Annie Leibovitz parodied a photograph of celebrity Demi Moore, which was originally published on the cover of Vanity magazine. Leibovitz created a similar image, with Leslie Nielsen’s face superimposed onto the body of a pregnant woman, with the composition of the photo extremely similar to that of the original photo of Demi Moore. Here are the two photos:

Images: Vanity Fair August 1991, Wikipedia; Naked Gun 33 ⅓: The Final Insult, Wikipedia

The Court found that the four factors of “fair use” were met: the image was a parody, it would cause little market harm to the original image, and the Naked Gun image was sufficiently transformative of and different to the original image to not infringe copyright.

As another example, this blog uses the title of “Mostly Martha”, which was the name of a 2001 romantic comedy movie:

Why is this more than likely okay? Because it is transformative, meaning that it adds value to the audience in its new form (Center for Social Media), it’s also not going to affect the original work’s value, and nor is it the entirety of the movie being displayed (just the title).

If you can’t figure out if your use would be fair use, err on the side of caution and look for a Creative Commons licensed work. It’s definitely possible to find images, videos, and other works that are available for commercial use as long as you give proper attribution to the author of the work.

For marketing purposes, use only what you need to make your point or emphasise your message, and always fairly attribute information or images that you have sourced from elsewhere (don’t try to hide the reference…that just looks bad).

Here’s another example from Entrepreneur.com:

Image: Entrepreneur.com “What Would James Bond Do? Channel the Charisma of 007 in Your Website Marketing”

In this example you can see that entrepreneur.com has used a still image from one of the James Bond movies, Skyfall. The purpose here is clearly a marketing or commercial one, which makes it less likely to be fair use. However, the still image is only a small portion of the movie as a whole, and the use of the image won’t affect the value of the original movie at all. Finally, the image has been cropped down so that it is a smaller portion of the image than what was displayed in the movie. In this case, the use of this image is likely to be fair use.

Fair Use in eCommerce

Fair Use might be the key that enables you to reach a whole new customer base. As covered recently at StoreYa, triggering the customer’s emotion is crucial if you want to improve conversion rates. What’s the connection between Fair Use and emotion?

When a new potential customer lands on your landing page and sees that you have made use of one of his or her favorite characters, your eCommerce site will automatically trigger a sense of ‘belonging’ inside the customer as well as create an overall positive vibe.

The importance? As published in The New York Times, all types of content – images, video, text – are all more likely to be shared when they are positive!

There’s no need to make your site all about one star now that you are familiar with Fair Use. Every once in awhile, according to this post, find a way to include famous personalities into your marketing.

Conclusion

With the increase in the unfortunate common practice of using other people’s work without permission or attribution, it’s all the more important that you get it right when you want to use another person’s work. The fair use exemption is a good way to use a piece of someone else’s work, without damaging their overall intellectual property rights, and making your store stand out more than ever.

Feel free to ask any questions or provide some feedback of your own on the topic!

Feature image via USA Network

Comments

comments

Powered by Facebook Comments