Copyrights entitle the owners to exclusive use of their original works of authorship. That right means that others cannot use — either whole or in part — the original work. This means that the work cannot be used, copied, displayed, performed, etc., without permission. Just as importantly, no works derivative of the original can be made, used, etc., without the permission of the owner.

Further, copyrights exist the moment creative original works come into existence, and copyrights do not depend on whether they are registered. If you violate another person’s copyright, you can be sued for copyright infringement. Defending the litigation will be expensive, and the potential monetary damages that can be recovered against you can be even more expensive. In this article, the Copyright Lawyers at Revision Legal offer some tips on avoiding copyright infringement.

But first, let’s look at some arguments that are NOT defenses to copyright infringement. First, no intent is required. Thus, it is not a defense to argue that “I did not know I was infringing a copyright.” Copyright law is a form of strict liability — if you infringe, you might have to pay. This is one reason to do your research when using non-original images and text. If in doubt, do not use it or consult experienced copyright attorneys. Along the same line, it does not matter where you got the creative work that is allegedly being infringed. This means that you must be sure who owns the copyright when you make efforts to get permission to use the creative works. Third, it does not matter if you see others using the creative work without permission. A good analogy is traffic speeding. It is not a defense to your speeding ticket to claim that “everyone else was speeding too.” That other people are infringing copyrights will not be a defense. Fourth, do not assume what you see or hear on the internet is accurate. For example, the “internet” will “tell” you that “sampling” is okay as long as you are only using 3 or 4 seconds of a song or video. There is no general rule like that. Every infringement case is unique and depends on what federal court hears the case. In California (where Hollywood is located), the de minimis rule of 3-4 seconds might be true, but maybe not in Tennessee (where Nashville is located).

In any event, here are some tips on avoiding copyright infringement:

• Use publicly available works — being publicly available means there is no copyright that can be enforced; publicly available includes works where the copyright has expired, where the work was given to the public domain, where the work was created by the federal government, etc.; publicly available means anyone can use the works without fear of infringing a copyright.
• Use works that are available through Creative Commons — usually, a work that is licensed through Creative Commons can be used as long as there is a proper and full attribution; but there are many types of CC licenses, so research is necessary for each work being used.
• Use only works that you have created.
• Get permission — a license — to use copyrighted works — this essentially means contacting the holder of the copyright (or their agent) and paying a royalty fee for use; for example, with sampling, it is best to get a sampling clearance (royalty payment); without a clearance, even a one-second use might result in an infringement lawsuit; any permission/license should be in writing.
• Tread carefully when claiming “fair use” — one defense to copyright infringement is “fair use;” if you are claiming fair use, tread carefully since you can still be sued for copyright infringement; you may win the case, but it will be expensive to litigate
• Cite and attribute fully and properly — citing and attributing are not defenses to infringement but can lessen the emotive element of some copyright cases.
• Consult with experienced copyright attorneys.

Understanding Copyright Duration and Expiration

One of the most practical tools for avoiding copyright infringement is understanding when copyright protection expires and a work enters the public domain. Under the Copyright Act, 17 U.S.C. § 302, works created on or after January 1, 1978 are protected for the life of the author plus 70 years. For works created by corporations or under a work-for-hire arrangement, protection lasts 95 years from publication or 120 years from creation, whichever expires first. Works published before 1927 are generally in the public domain in the United States, meaning you can use them freely without a license.

However, the rules become considerably more complicated for works published between 1927 and 1977. Whether a work from that era is still protected depends on whether it was published with proper copyright notice, whether the copyright was renewed, and a host of other factors. A work that was published in 1960 without a proper copyright notice, for example, may already be in the public domain, while a similar work published in 1960 with proper notice could still be protected until 2056. Given this complexity, before using older works, consult with experienced copyright attorneys who can evaluate the specific circumstances.

The Fair Use Doctrine: What It Actually Protects

Fair use — codified at 17 U.S.C. § 107 — is the most commonly misunderstood concept in copyright law. Fair use is an affirmative defense, not a blanket license. This means that even if your use qualifies as fair use, you can still be sued for infringement and must prove the defense in litigation. Courts evaluate fair use claims through a four-factor balancing test:

• Purpose and character of the use — transformative uses (commentary, criticism, parody, news reporting, education) weigh in favor of fair use; purely commercial reproduction weighs against it
• Nature of the copyrighted work — factual works receive thinner copyright protection than creative works; using a fictional novel is harder to justify under fair use than using a factual encyclopedia entry
• Amount and substantiality of the portion used — using a small portion generally weighs toward fair use, but using the “heart” of a work can defeat a fair use defense even if that portion is small
• Effect on the market for the original — this factor is often dispositive; if your use substitutes for the original and harms the copyright owner’s market, fair use is unlikely to succeed

The Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), confirmed that commercial use does not automatically disqualify a fair use defense and that parody is a particularly strong basis for claiming fair use. More recently, in Andy Warhol Foundation v. Goldsmith (2023), SCOTUS narrowed the transformation analysis, holding that even significantly altered derivative works may not qualify as transformative when the use serves the same commercial purpose as the original.

DMCA Safe Harbors and What They Require

If your business operates any type of online platform where users can upload content, the Digital Millennium Copyright Act’s safe harbor provisions — codified at 17 U.S.C. § 512 — are critical to understand. These provisions protect online service providers from monetary liability for user-uploaded infringing content, but only if the provider meets specific requirements:

• Designate a registered DMCA agent with the U.S. Copyright Office and publish the agent’s contact information on the website
• Implement a repeat infringer policy and terminate accounts of users who repeatedly infringe
• Respond expeditiously to takedown notices by removing or disabling access to infringing content
• Not have actual or constructive knowledge of infringement on the platform
• Not receive a direct financial benefit from infringement when the provider has the ability to control infringing activity

These protections are not automatic. Failure to comply with even one requirement can result in the loss of safe harbor protection for the entire platform. Platforms that have actual knowledge of infringement — or that are willfully blind — cannot hide behind the DMCA safe harbor.

Practical Steps for Businesses Using Online Content

For businesses that regularly use images, text, music, or video in their operations, best practices include several concrete steps. First, conduct a content audit to identify all third-party content in use across your website, marketing materials, social media accounts, and internal systems. For each piece of content, document where it came from, who owns the copyright, and what license — if any — you have for use.

Second, establish a licensing protocol. Many stock image and content licensing platforms offer clear licensing terms that specify exactly what uses are permitted. Read those terms carefully, since licenses may prohibit certain uses like editorial-only restrictions or caps on print runs. When licensing music for videos or podcasts, understand the difference between sync licenses (for video) and master use licenses (for the specific recording), since both may be required.

Third, document all permissions and licenses in writing. A written license or permission letter that clearly specifies the scope of use, duration, geographic territory, and any compensation provides clarity and protection for both parties. If permission is denied or a license fee is too high, use an alternative work rather than risk an infringement claim.

Contact the Intellectual Property and Business Attorneys at Revision Legal

For more information, contact the experienced Intellectual Property and Business Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.