marketing breaking the law

Is Your Marketing Breaking the Law?

An interesting controversy popped up on Instagram a few months ago. I follow Josh Ostrovsky (@thefatjewish), a crass, over-the-top (and hilarious) insta-celeb who posts funny memes and photos on a daily basis. Back at the end of August, he landed in hot water when he was accused of plagiarism for not giving credit to the sources of memes and images he shared.

What made me sit up and pay attention to this case is the fact that so much marketing accidentally breaks the law. Who gives proper attribution to an image or meme shared on Facebook, Twitter, Instagram or Pinterest? Sharing content on social media is as easy as clicking a button, and very few of us give attribution when we share—half the time we don’t even know who the original source is!

While the case of Ostrovsky is a new one in the world of plagiarism and social media, there are plenty of other easily avoidable cases I see small businesses and marketing professionals make all the time. It stems from a misunderstanding of what intellectual property is and the steps professionals need to take before using an image.

What is intellectual property?

When someone creates a work of art—whether it’s a photo, poem or even a meme—it is their intellectual property.

Take a photographer for example. If they post one of their photos online, it does not mean that photo is up for grabs—regardless of whether or not it’s watermarked!

If you do a Google search and find an image you want to use for marketing purposes, you have a few options (ranked from riskiest to safest):

1. Attribute the source of the image

This is the way BuzzFeed operates. They source content and images from third party sites and attribute the source of the image. Most of the time, this works out fine, as other sites appreciate the link to their site (it’s great for SEO). In some cases, however, BuzzFeed will be asked to remove the posting, because they were not granted permission to use the image or content. While this is the easiest way to use images found online, it’s the riskiest and one that could get you sued.

2. Ask the owner for permission to use it

If you ask the owner for permission to use the photo for an upcoming blog post or newsletter, and they say yes, then have at it (but be sure to get the “yes” in writing). And ask how the owner would like the attribution to read.

3. Offer to pay the owner to license the image

If the owner of a photo says yes, it is very likely that they’ll want to be compensated (and they should be!) for their photo. The owner of the photo can license the rights to you for use under specific guidelines. This is what stock sites like iStock and 123rf do. Just be aware there are guidelines to specific photos on how you use them—e.g., you cannot use an editorial licensed photo if you’re trying to sell a product.

4. Offer to pay the owner to assign the rights of the photo

If you want to be the sole owner of the photo and essentially take over the intellectual rights, then you can ask the photographer to assign the intellectual property over to you. This will typically cost quite a bit as you are buying the original, creative work andpreventing others from using it. The Nike swoosh logo is a perfect case in point —a graphic designer assigned the rights to Niketo ensure they would be the only one that could use it.

Your best bet, and what we encourage Jansen Communications clients to do, is to license the photo. There are so many inexpensive stock sites out there—123rf, Dreamstime, Dollar Photo Club or iStock to name a few. Just be sure to read the use guidelines for any image you plan on using—and when in doubt, always attribute a source.


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