When does copying cross the line?

The new client and I were discussing the brochure he wanted to produce. After discussing his general objectives and some thoughts about design, he handed me a brochure and said, “Everything you’ll need is in here.”
Even a quick skim told me that it was an excellent, well-written brochure. The content was spot-on, and the writing was delightfully captivating and informative. “So you want me to convey the same basic messages?”
He looked puzzled. “No. I want you to use what’s there. It says exactly what I want us to say.”

“You want me to use these exact words?” He nodded, so I took a deep breath and considered how to pose the next question. “You do realize that this is another company’s brochure?”

He nodded, adding, “They’re a great company. I love their products. In fact, I stop by one of their places whenever I’m out west. I’ve been modeling our company and products on what they do.”

“But you can’t copy their words.”

“Why not?”

Every word of that story is true. And no, it wasn’t the only conversation like that I’ve had over the years. Each time, I’ve explained the concept of copyrights and shared the legal consequences of violating someone else’s copyright.
Now, I have to interrupt here to note that I’m neither an attorney nor have I ever played one on TV, so what I’m discussing here does not constitute legal advice. But I can safely advise you that if you think it’s perfectly acceptable to take another company’s materials and repurpose them as your own, you’d better have a pretty good attorney on your speed dial.

Sometimes, it isn’t simply copying someone’s words and claiming them as your own. I frequently run into situations where clients will lift articles or items from other companies’ publications and drop them into their own. They’ll put a credit line on the story to show where it came from, so that’s not copyright infringement, is it?

Actually, it is. If you reprint something without getting the copyright owner’s permission, you’ve broken the law, even if you cite the source. How can that be? The simple answer is that you’ve taken somebody else’s property and used it without asking. It’s like borrowing their car to drive to Cleveland and back without their knowledge.

“Wait!” you protest. “We’re not doing a bad thing. Actually, we’re complimenting whoever wrote the piece by giving it a wider audience.” I always appreciate compliments, but I earn a living by writing. People pay me to use the things I write to help them communicate with customers and other stakeholders. If you take something I’ve written and use it for the same purpose, you should pay for it, too. After all, would you do your job for nothing if I promised that I would appreciate the fact that you did it well?

Copyright laws are not simple. Their inherent gray areas are the very reason intellectual property attorneys tend to drive much nicer cars than writers do. But they are based on a simple system of ethics that says it isn’t right to take something that belongs to somebody else without compensating them or at least obtaining their permission. And the law has held that a story, a paragraph, a brochure, or a book can be just as much someone’s property as their car or home.

“It’s either the result of ignorance of the law and the ethics behind that law, or it’s a misunderstanding of a concept called “fair use”.”

Most infringement that I’ve seen isn’t a deliberate attempt to steal. It’s either the result of ignorance of the law and the ethics behind that law, or it’s a misunderstanding of a murky concept called “fair use.” Many people encounter this concept in their college years, because it’s important in the academic world.

While the aforementioned intellectual property attorneys could consume your annual salary detailing the finer points of fair use, the basic idea is that you can copy material without copyright infringement for certain purposes, such as commenting upon it or developing a formal critique.

For example, if a drama professor wanted his students to understand how dialogue may be used to advance a plot, he could reprint several lines from a David Mamet play that illustrated the idea without fear that he’d be accused of infringement. That’s fair use. But he can’t reprint the entire play or even a full act so his students don’t have to pay for a copy at the university bookstore. That would constitute infringement.

Similarly, if you were writing an article for your company’s newsletter and wanted to share a concept I’ve mentioned in this article, you could quote me by reprinting a sentence or maybe even an entire paragraph, and you’d be okay under fair use. But if you went ahead and reprinted this entire article without asking, or used a paragraph from it in something you’re writing and claimed it as your own, you would be in violation of the law.

Again, there are many gray areas in copyright law, but rest assured that copying the full length or a substantial part of something almost never falls under the rubric of fair use. (Fair use does protect parodies, so if you wrote a humorous imitation of this column, you’d probably be okay.)

So what do you do if someone else has already found the perfect words to describe what you want to convey? One option is simple and polite: ask for permission. More often than not, people will be flattered that you want to reprint something they wrote and will be happy to give you the okay (perhaps for a credit line and a copy of the finished piece). Or, the author or copyright owner might request a payment to allow you to use the content. That’s called licensing, and it typically costs far less to license existing content than to develop something new.

Alternately, you could develop words of your own using the other piece as inspiration. Just be sure that it’s different enough that nobody would conclude that yours is a barely cloaked imitation. Just changing every fourth word or substituting a different name probably isn’t going to convince a judge that you’re on solid legal ground.

You may get away with copyright infringement. Then again, you may also get away with robbing a bank. Both actions are different examples of the same thing: the theft of something that belongs to somebody else. That’s why both carry legal penalties to dissuade people from committing those acts. It boils down to simple morality: if you wouldn’t steal something from another person’s home or another business, you shouldn’t steal their intellectual property, either.