Whether you are looking to start a review site or have been running one for years, copyright is an issue you are almost certainly going to bump into.
This is especially true if you’re going to be reviewing copyrighted works, such as books, games or movies, but is true for just about any review you do. Even those who review electronics, for example, have to look at the packaging, manuals and promotional material as copyrighted works.
Fortunately, copyright law gives a great deal of leeway when creating reviews, as it should, but knowing where the boundaries are and how to keep your site legal is important. Perhaps even more importantly though, it is crucial to be aware of ways in which your content could accidentally become a target for copyright enforcement, often by automated systems.
However, with some common sense, some simple precautions and some common courtesy, you should be able to avoid any and all issues pretty easily.
With that in mind, here is what you need to be aware of.
Understand Fair UseIf you are running a review site, fair use is probably the single most important area of copyright law to understand and, sadly, it is also one of the most difficult.
Fair use is an area of copyright that grants users, such as yourself, the right to violate the otherwise exclusive rights of copyright holders. In the U.S., there are four factors that are considered:
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes The nature of the copyrighted workThe amount and substantiality of the portion used in relation to the copyrighted work as a wholeThe effect of the use upon the potential market for, or value of, the copyrighted workIn court cases, the first and the fourth factors are typically given the most weight, which works out well for reviewers as commentary and criticism is one of the most protected kinds of use.
So a review site has a pretty good start when building a fair use argument, however, that doesn’t mean it is a lock. Fair use is a defense against a copyright infringement claim, not a magic spell that makes infringements acceptable.
This means two things. First, fair use can only be determined in a court, meaning after you have been sued and put through the expense and drama of a lawsuit, second, that it is possible for a review site to infringe, though it is much more difficult.
For example, distributing whole copies of a work without permission is an infringement, even if it is part of a review. Though you can use clips from a movie or samples from a song, distributing the entire work as part of the review is almost certainly an infringement as it uses more of the source than necessary for the review and replaces the market for the original work.
A review, as with all fair use cases, should be a transformative use, the making of something new, not derivative. If you act in good faith, use only the source material you need for your review and make the focus of your review your own thoughts, you should be ok for the most part.
However, with fair use, there are no hard rules or magic guidelines to help you.
Avoiding Copyright Abusers and MistakesIf you understand fair use and operate your site in good faith, you’ll probably be on the right side as far as the law is concerned. However, when it comes to copyright, as with any area of the law, mistakes do happen and, in rare but very well-publicized cases, some do abuse the law to intimidate reviewers.
These incidents can be major headaches for any site so it’s worth taking a few moments to discuss how to avoid or minimize the danger.
Be Careful with Audio: On video sites such as YouTube and Myspace, audio fingerprinting is the main method of identifying allegedly infringing material. The systems, sadly, are not very good at dealing with fair use cases, as the recent “Kids Bop” takedown illustrates. These takedowns and mutings are largely automated so use copyrighted audio from major artists at your own risk. If needed and you are sure of your fair use standing, host the content yourself. Be Wary with Negative Reviews: If someone is going to try and abuse copyright law to hurt your site, it will almost certainly be over a negative review (very few get upset when you’re promoting their product). Though very few would consider such an act, don’t give companies that might be angry with you ammunition. Avoid borderline uses of their content and generally be more cautious. If someone is going to get litigious or threatening over a review they’ll find a reason (defamation and other areas of law may also apply) but there’s no reason to hand them extra options. Know Your Rights: However, the most important tip by far is to know your rights and stand up for them. You have a right to write negative reviews about a product or service so long as your statements are truthful or opinion and you use copyrighted material within reason. If you get a legal threat without merit, get help in fighting it, and, if your work is taken down unjustly, either by a DMCA notice or automated system, file a counternotice and have it put back. However, always consult with an attorney before taking such action.All in all, these types of incidents are actually fairly rare. But they are worth preparing for, especially considering the problems they can cause. Though you can’t completely eliminate the risk of an unhappy and litigious individual suing for no valid reason or getting accidentally caught in a copyright dragnet, you can minimize the risk by being careful and knowing your rights.
Other Tips and SuggestionsIn addition to the above tips and suggestions, here are some more specific ways you can ensure that your review site stays on the right side of copyright law.
Use Images Correctly: Fair use, as per the Perfect 10 v. Google ruling, generally allows you to make thumbnails of images for use in your review. However, when using a larger image you should either get permission or just link to the image on the other site. Google Images, which the lawsuit was over, is a good example of the rules. Use Logos When Possible: Though logos can have some copyright protection, for the most part they fall under trademark law and trademark only protects against confusion in the marketplace. As long as you aren’t using the logo to imply a relationship that does not exist, you can use a logo in a review with little fear.Use Your Own Photos: If you are reviewing a product or place, consider taking your own images if possible. Not only does it add to the review, but you hold the copyright in the photos. As long as you are careful not to photograph something copyrighted in a way that’s infringing (see above) you can use the image all you want. Otherwise, Use Press Images: If you can’t take your own images, most companies have press kits available that include images of products designed for just such use. This is much preferred to taking images from another source and likely violating a 3rd party’s copyright. Never, ever use Google Image Search as a stock photo library. Use Caution When Embedding: Finally, if you embed content from other people for your review, such as Youtube clips, you’re taking some of a risk. Though your use might be a fair one, someone else’s use might not. Furthermore, if the work is taken down, you will not be notified. Embed only if you are sure the content itself is a fair use, is not likely to be taken down for any reason (including by the poster) and always make sure you have permission to do so.Though most of this is simply common sense, and some has very little to do with copyright, they are all issues every review site should consider before moving forward.
Bottom LineAll in all, if you run a review site, it isn’t that hard to avoid copyright issues. If you make the focus your reviews, only use as much as you need in your quotes (whatever medium) and operate in good faith, you’ll probably be ok.
However, it is still very important to be aware of the issues as they can come back to bite you if you are not careful.
In the end though, if you’re looking to set up a review site or are running one now, you probably have no reason to fear so long as you are acting in good faith. Reviews, commentary and criticism are highly protected under copyright law and, generally, the bar for infringement is higher than mere distribution.
If you’re aware of the potential issues and work to avoid them, you most likely have very little to fear.