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Copyright Infringement, Plagiarism, and Client Demands

By Deb McAlister-Holland | Small Business

What’s a poor marketer to do when client demands cross the ethics line? Do you give up your own ethics — or risk losing a client? It’s not always an easy choice.

Lately, I’ve been surprised by client requests to create content in such a way that the request borders on copyright infringement or plagiarism. And I’ve been even more surprised that some otherwise intelligent business people don’t know the difference between the two, or don’t understand that they are both wrong.

Jonathan Bailey, publisher of Plagiarism Today, wrote an excellent article on his site that explains the difference between plagiarism and copyright infringement, by the way. You can find it here, and I highly recommend it to anyone who has content they want to protect – or uses online searches to help them research content.

I’m lucky. I can just say no, with a polite explanation, when someone asks me to act in a way that I find unethical. And I work with some of the greatest clients in the world, so when I explain an issue and suggest a work-around, they’re usually very receptive.

Not everyone has the luxury of walking away from paying work, and I’m starting to hear stories from writers, marketers, and freelancers of all kinds who are facing client demands to do things that they find unethical. Here are some questions that have come to my attention lately, with some facts that might have helped the marketer who faced the question. I’ve changed the names, but the situations are accurate.

Recycled Content: No Originality, Please

My daughter-in-law’s best friend Melissa runs a one-person PR and marketing shop. She takes on both short and long-term projects to create websites, blogs, collateral, advertising, and PR materials for a wide range of clients. Last year, a huge project that took months of her time turned into a collections nightmare leaving her in a financial hole she’s still overcoming. So this year, she’s not in a position to turn away work.

“I took on this accounting firm that wants me to build a website complete with a series of downloadable white papers or PDF’s that explain tax issues for their clients. They know exactly what they want, and aren’t shy about sending me links to other websites and articles, and saying, ‘Do this,’” she explains.

Until recently, she’d been able to create original work that met the client’s needs without a problem. Then she got this email from the client.

“Melissa: Lately, I’ve sent you several articles or webpages to post on our site. Instead of using what I sent, you’ve come up with similar things. But this time, I want you to take this article, and just rewrite it a little, and use it. I don’t want something similar, I want this – I love it. Please have it ready by Tuesday. Thanks!”

The link was to a magazine’s funny article about ridiculous tax deductions people tried to claim. The client’s message was clear: plagiarize another writer’s work, and commit copyright infringement by using it on her client’s blog.

She called, and asked what she should do. We talked, and it was soon apparent to me that she was afraid of being fired if she refused, and that being fired right wasn’t a risk she could afford to take. So I asked to see her contract with the client.

She had a good contract that included language that indemnified her if material, images, content, or information supplied or approved by the client is found to violate any legal standard including copyright claims.

So I told her to do what the client wanted, and send the copy with a cover note that advised the client not to publish it because she believed that it violated the intellectual property rights of the original author and the magazine that had published it. The cover note also reminded him that he was assuming liability and responsibility if he published it.

The client’s response read, “OK – you’ve covered your rear end. I get it. But I know what I want. Thanks for listening to the guy who pays your bills for once.”

So if you work for someone else, be wary of signing a standard work-for-hire contract that includes a clause that makes YOU responsible for delivering original work that does not infringe on anyone else’s copyrights. Substitute your own contract with an indemnification clause. Several writer’s groups have free contracts online, or if you are a freelance writer or designer and you need the appropriate language, send me an email or Twitter DM (@debmcalister), and I’ll point you towards one.

Implied Endorsements: Images Say a Lot

I work with a Dallas designer named Brad, who creates great websites and collateral for technology companies. He’s been working with a marketing automation vendor that specializes in helping companies in regulated industries avoid compliance troubles. The company is putting up a new home page, and one section of the page reads: “Acme is the only solution with built-in compliance controls that meet or exceed federal compliance standards.”

There’s nothing wrong with that claim as long as it’s true. The problem is that the client instructed Brad to add the logos of three federal agencies to the home page, directly below the compliance claim. The idea was that a visitor to the site who saw the logos of the federal agencies would assume that the client’s product had earned some kind of non-existent “seal of approval” from the agencies.

Earlier this month, when Brad said that specific approval would be required from the government agencies in questions before their logo could be used, the client said, “Oh, it’s OK. The government is shut down anyway!”

He did it, because he wanted to finish the project, get paid, and “never deal with those people again.” In this case, I think my friend made a mistake. He doesn’t have a contract that indemnified him for doing what the client told him to do — he works through one of those websites where freelancers bid on jobs, so he had nothing except a signed estimate. That leaves Brad vulnerable if there is a complaint over the implied endorsement.

Instant Content: Just Retype & Upload

An entrepreneur of my acquaintance recently asked me if I knew anyone looking for a part-time clerical job. “Maybe a college kid or young mom who wants to earn some Christmas money,” he said.

“We want to add a section to our blog with a calendar of key dates and events. I found a couple of great calendars. They’re already written just the way we want it. It just needs to be retyped so we can upload it.”

When I said that he couldn’t do that because that would be copyright infringement, he laughed. “No it isn’t. It’s public information. We’re doing the conferences a favor by putting the date and the link on our site. Nobody is going to come after us for this.”

Of course, this is the same entrepreneur who once told me I should go into the business of selling media lists. “Just buy a single-user license to one of those media databases, and then resell the lists to small companies that want to do their own PR. It’s a no-brainer of a business sideline for somebody like you.”

This is a case where you’d have to decide for yourself whether to take the job of “just retyping and uploading” content you knew was stolen. As an hourly clerical employee, you probably aren’t personally liable for damages — so it’s a matter of your own conscience. I didn’t refer any job candidates to this man, figuring that if he’ll steal content, his ethics probably aren’t up to par in other areas either.

Get a Clue: Know the Law to Avoid Trouble

Recently, one of my clients produced a great-looking newsletter. It even included a gorgeous photograph of a celebrity, illustrating a story about how happy clients were with a new service the company was offering. I complimented the marketing manager who said it was a project handled by the company’s marketing intern.

I congratulated her on the celebrity endorsement she’d gotten. “It was easy,” she replied. “The photo was already online, so I just right-clicked and saved it, and then added a line in the copy about her.”

This isn’t some teenager working in an office for the first time. She’s nearly 30, and returned to an Ivy League university for an MBA after seven years at a large New York ad agency. When I tried to explain to her that why using the celebrity’s photo was wrong, this clueless woman argued, “Celebrities don’t have a right to privacy when they’re in a public place. Everybody knows that. Besides, they wouldn’t be celebrities if their photos weren’t used all over the place.

“There’s nothing wrong with using Google to search for an image and then reusing it. Everybody does it, and nobody cares. If they did, they’d use one of those programs that blocks copying.”

“Everybody” may do it, but that doesn’t make it legal. There are three separate legal issues in what she did, so I wasn’t surprised when the letters from lawyers started to arrive. The legal problems the intern’s actions created for the company included:

  • Copyright infringement against the photographer who owned the image she copied from the Internet. Just because you can right-click and save a photograph doesn’t mean you have the right to use it.
  • Violating the celebrity’s right of publicity, by using her name and likeness (in any context) without permission.
  • Tortious interference with an endorsement deal the celebrity had with a competing company. They had paid for the celebrity to endorse their business, and were not amused that a competitor was implying that the celebrity endorsed their product instead.

Neither the company nor the intern has any sort of defense here. It’s a clear case of copyright infringement and the misuse of the celebrity’s name and likeness (a right of publicity violation), and there’s no remedy. If the offending image had merely been published on a blog or a website, removing it and apologizing might have worked.

But it went to thousands of people via email, and distributed to thousands more in print. The company is trying to settle with the copyright holder and the celebrity now, and it looks as if they’re going to get off relatively lightly, with total payments of less than $50,000. It could have been much worse — but think how far $50,000 could have gone in other kinds of marketing (PR, social media, or advertising)!

Back to Basics: The Rules

Let’s recap the basic rules of plagiarism and copyright infringement. Plagiarism is taking someone else’s work and passing it off as your own.

Plagiarism isn’t necessarily illegal unless it’s coupled with another offense like copyright infringement, but it’s unethical and just plain wrong. Most of us figure this out somewhere around fourth grade, when teachers start explaining the difference between research and copying what you read.

Copyright infringement, on the other hand, is illegal. There is no defense, and the law provides for automatic triple damages if the copyright holder takes you to court.

Jonathan Bailey’s excellent article on the subject defines copyright infringement this way: Copyright law gives a copyright holder (usually the creator of the work) a set of rights that they and they alone can exploit legally (save for exceptions such as fair use). Those rights include:

  • The right to reproduce (copy) a work.
  • The right to create derivative works based upon it.
  • The right to distribute copies of the work to the public.
  • The right to publicly display or perform the work.

Last year, my husband shot videos of children in our 12-year-old’s circus class performing at the Lone Star Circus School’s end-of-school show. Then we posted them on YouTube for parents, friends, and family members who couldn’t attend the show or hadn’t gotten their own video to see. Universal Music Group (UMG) filed a DMCA take-down request with YouTube to block two of the videos, claiming that the not-for-profit group that put on the kid’s show hadn’t paid the required performance fees for the music they used, and that both the original performance and the video were acts of copyright infringement.

UMG didn’t seek damages — even companies known to sue at the drop of a hat evidently hesitate when it comes to going after kids and teenagers performing aerial stunts high above a concrete stage without safety lines or a net. But they could have.

To learn more about the specific legal problems mentioned in the examples above, click on these links:

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