As I was digging into this topic, I found very little about it from internet marketing experts or anyone else. Which leads me to believe a lot of people may not realize that mentioning statistics from certain companies or linking to a business’s blog post or extracting a quote from an article—even with attribution—could land you in some trouble.
Q1. How can companies be legally allowed to restrict people from mentioning their content or linking to the pages of their websites that they’ve made publicly available?
A1. The legal basis for these restrictions is twofold.
First, intellectual property rights such as copyright and trademark grant certain exclusive rights to the intellectual property owner.
Copyright protects original works of authorship that are fixed in a tangible medium of expression. Some examples of works covered by copyright are literary or written works, photographs, and graphic works. Copyright is automatically created when the work is fixed—i.e., when the words are saved or when the photograph is taken.
Copyright protection extends to the content on a website—specifically, the combination of words and structure that expresses the information, but not the factual information itself. Someone infringes on another’s copyright when they violate one of the copyright holder’s exclusive rights, such as the right to reproduce, distribute, or create derivative works. The fair use doctrine provides an exception, which allows others to use copyrighted works for certain, limited purposes.
Trademark law serves to protect against consumer confusion with a brand name or slogan and gives businesses the right to protect their commercial identity.
Q2. Are there any particular types of companies that are more likely than others to have policies restricting use of, referencing, or linking to their content?
Q4. What do companies that restrict use of and linking to their content typically forbid or require?
A4. There are many ways to restrict use of content. First, as mentioned above, copyright automatically protects many types of content and there doesn’t have to be a policy or statement about it in order for the work to be protected. Often times a citation policy will include the exact way to reference the corporate entity that is the owner of the work in accordance with their branding standards. Some entities also refuse the right to use the work unless permission is requested and granted prior to the use.
Q5. Why would companies want to prevent others from referencing their content in their blogs? After all it’s free publicity, right?
A5. Content creators typically want to retain a certain amount of control over their work such as how and where it is used, and in addition often want to ensure that they are fairly compensated for their work.
Alternatively, if use of the work is being given for free, they want to ensure that they are quoted or referenced in a particular way so that users know the source of the information. It also helps the user identify the source of the work so if they wish to utilize the work, they can contact the owner and make appropriate arrangements to use the work.
Q6. What could happen if you mentioned a company’s content or linked to a company’s website without realizing they have a policy in place that forbids it or that requires you have permission first?
The first step is often a request to take down the material and a threat of legal action, however depending on the egregiousness of the violation or a company’s tolerance for impermissible use of their content, they may skip this step and demand financial damages or file a lawsuit for an injunction and damages.
If the content is being hosted by another service, such as a website provider or social media site, those terms of service will also apply to you as well. Use of these types of sites always includes a provision that you have the legal right to use all of the content that you post on the site, and in order to insulate themselves from liability, the provider of the service has a legal duty to take steps to remove content that is infringing or otherwise in violation of another’s rights.
For example, if you produce a video that is hosted on YouTube and use a popular song as the background music, YouTube may take action against you in accordance with the Terms of Service that you agreed to when you created your account. These remedies include termination of your account and indemnification of YouTube for any claims that arise out of your use of their service.
Q7. Any other thoughts on what blog writers should watch out for and how they should protect themselves when using information they’ve found on other websites?
A7. Familiarize yourself with the basics of copyright and fair use for the purposes of protecting your own content and respecting the rights of others. The Electronic Frontier Foundation has some great free resources called the Legal Guide for Bloggers that contains an overview of the basics.
As a general rule, if you are not the creator of the content, then you don’t have the right to use it unless that right is specifically granted in a license or the use constitutes fair use. If you are using another’s content, familiarize yourself with their terms of service and take the appropriate steps to make sure that you are able to use the content in accordance with their terms and policies.
Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He is a creative and strategic thinker that works with business owners, entrepreneurs and individuals to prevent and resolve legal problems. Matt regularly writes about legal issues at the Lancaster Law Blog.