#162: Copyright Infringement — What Writers Need to Know (with Attorney Richard Chapo)

I had a friend who was married to a lawyer.

She joked that when she was having trouble falling asleep, she’d ask her husband to talk to her about copyright law.

Apparently, it worked way better (and faster) than taking a melatonin supplement.

In all seriousness, copyright law is an important topic when you’re a freelancer writing for clients — even if it’s boring.

I’m not an attorney nor do I play one on the Internet. So I’ve brought in Internet business lawyer Richard Chapo to give us the scoop on how we can protect ourselves from the most common (and avoidable!) copyright pitfalls.

Richard is located in San Diego, California and has been practicing law since 1992. He specializes in helping online entrepreneurs avoid what he calls “Crap Your Pants” copyright infringement letters and other threats when operating online.

As dull as this topic can be, Richard makes it interesting, relevant and engaging. He also illustrates many of his points with specific and useful examples, which I found extremely helpful. So I urge you to give this episode a listen.

The notes that follow are a very basic, unedited summary of the show. There’s a lot more detail in the audio version. You can listen to the show using the audio player below. Or you can subscribe in iTunes to get this show delivered straight to the Podcasts app on your smart phone, tablet or iPod.

Tell us about your work

Richard Chapo has been an attorney since 1992. He got his start in litigation but moved into Internet law around 2000.

He’s worked with a wide range of clients, including publishers to well-known bloggers to dating sites to technical product sites.

What are some of the most common problem areas for freelance writers?

Keep in mind that in the real world, these issues don’t come up often.

In most cases, anyone making a copyright infringement claim will look to your client, not you. Most writers don’t have sufficient assets to make them worth pursuing.

Problem Area #1: Sourcing

If you’re going to source information—e.g. a graphic, a photo or written content—you have to be careful. Make sure you have authorization to use the resource, especially if you’re using an exact copy.

You want to be especially careful if you’re doing work on behalf of a client. Otherwise, the client could end up receiving copyright complaints or infringement lawsuits.

For example, one copywriting company grabbed an image off the Internet and ended up paying $4,000 to the copyright holder!

Problem Area #2: Attribution

Say you use some content you found online, but you link back to it to provide attribution. Are you covered? Unfortunately, no. Attribution provides no protection from a copyright infringement claim.

When it comes to damages, much of it will come down to an assessment of your willfulness. As a professional copywriter, the courts will expect you to have some understanding of copyright and act accordingly.

If you want to use a graphic (or similar) but don’t own the copyright, try asking for permission. You’ll be amazed at how often people will say yes. So ask in advance and get their permission in writing.

Want to use an image but don’t own copyright? Try asking the content owner for permission to use it!

Problem Area #3: Notes and Records

Keep a record of the sources you use when you create content. Your notes can be used as evidence to support your defense.

People pursuing copyright infringement have to show that you copied their work. But on the Internet, lots of content is very similar. If you can show what sources you accessed—and when—it can help your defense.

Problem Area #4: Fair Use

The premise of copyright law is that a creator of a work should have control of that work. But in some situations, others are given the opportunity to use that work under the defense of “fair use.”

However, fair use is determined at trial. Even if you win at trial, you have to pay lawyer fees.

Also, your client isn’t interested in becoming a defendant in a lawsuit. So be conservative! If you’re claiming fair use, make sure that it’s really obvious.

How much are you allowed to quote without infringing on copyright?

Quotes that are short and cover facts are fine. Copyright only really starts to apply when content is over a paragraph in length. You can’t copyright the title of book, for example.

You also can’t copyright facts.

Can you quote someone’s four step process (for example) to illustrate a point in a longer piece of work?

You would be liable. Your only possible defense is to claim fair use—but fair use is a moving concept that’s hard to predict.

In determining whether something is fair use, the courts look at four factors:

  1. The purpose and character of your use
  2. The nature of the copyrighted work
  3. The amount of the work used
  4. The effect on the potential market for the person owning the copyright.

You’ll find that if you’re treating the content positively, you’ll have fewer problems. Most people are happy to have the free publicity.

But if you’re questioning the content, the owner might feel differently.

When you write something for a client, who owns that content?

If the writer is an independent contractor and has no contract with the client, then the writer maintains ownership.

If the client doesn’t pay, the writer can limit the use of the content through DMCA (Digital Millennium Copyright Act) and infringement claims.

Even so, you want to put this into your contract. It provides a basis for breach of contract and may help persuade a judge to rule in your favor or an attorney to withdraw their claim.

For larger projects, implement milestones so that you get at least partial payment while the project is ongoing.

Always research prospective clients. You don’t have to take on everyone!

What if you create content using background materials the client has plagiarized? Who’s at fault?

The Copyright Act works on a strict liability basis. Strict liability occurs where a tort can be proved, such as copyright infringement, and it can be shown the defendant was involved.

They don’t have to prove your intent. They don’t have to prove you were at fault. They don’t even have to prove that you had knowledge of the infringing content!

So you would be liable, even if you didn’t source the copyrighted material.

However, plaintiffs are mostly looking for money as compensation. They’re unlikely to go after the copywriter due to lack of assets. They will probably focus on your client—although they may name you as a defendant.

So how do you deal with these kinds of problems?

1. Form a business entity. If you get sued and you lose, there’s a wall between your business liability and your personal assets.

2. Take out liability insurance. It will pay for your attorney fees and any judgment against you with certain limits.

Two of your best defenses against copyright insurance claims are to 1) take out liability insurance and 2) form a business entity.

Can we post content that we’ve created for clients in our online portfolios?

If the copyright has been transferred to the client upon payment, then the answer is no—unless you have a clause in your contract that says differently.

You should also address the use of trademarks, such as their name or logo, in your contract.

Where can listeners learn more about you?

Richard’s website: SoCalInternetLawyer.com

Mention this interview and get a free consult!


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