copyright contract-law internet
Protecting self from unknowingly posting copyrighted material
<p>Someone is getting me to make them a Facebook page. They are giving me the material. They also want me to edit (Photoshop) some images for them. I'm worried that I may be breaking copyright. If I get them to sign a contract agreeing that all material they provide me, they own the copyright for, and they agree to indemnify me, are these two things enough to protect me if someone makes a claim that I posted copyrighted material? </p>

<h2>Copyright Primer</h2>

<p>If <strong>you</strong> make a copy (or a derivative work like a Photoshopped photo) of a copyrighted work without the commercial copyright owner's permission then <strong>you</strong> are <em>prima facie</em> guilty of copyright infringement. Further, if you do not give attribution to or deal in a derogatory way with the holder of any moral copyright, you are breaching their rights as well. The commercial and moral copyright holder(s) may or may not be the same people.</p>

<p>If you are alleged to have infringed copyright you may be able to avail yourself of a fair dealing/use defense, however, in the circumstances you describe this is unlikely to be successful. Basically, what you are describing is <strong>not</strong> fair dealing/use.</p>

<p>It is unlikely that what you are proposing would be considered <em>criminal</em> infringement so you would not be subject to criminal sanctions like gaol time or fines.</p>

<p>You are open to being sued by the copyright (commercial and/or moral) holder. If you can prove innocent infringement (i.e. that you made all reasonable efforts to determine who the copyright holders are and sought their permission) then your damages are limited to an accounting of profits (i.e. you have to pay them the profit you made by breaching their copyright).</p>

<p>In the contract with your client you can require them to provide you with an indemnity against defense costs and damages: this means you can sue them if you get sued. Of course, if they have no money this doesn't really help. You can also take out insurance against this, however, their liability will be excluded if you breach the terms of your insurance contract.</p>

<h2>What you need to do</h2>

<ol>
<li>Find the copyright owner. For photos, the commercial copyright holder is usually the photographer or the photographer's employer: <strong>it is not the subject of the photograph!</strong> For text, the commercial copyright holder is usually the author or their employer. The moral copyright is usually held by the photographer/author unless they have assigned their right to someone else.</li>
<li>Get and document their permission and publish in accordance with the permission given (including attribution etc.).</li>
<li>If you cannot determine the copyright owner, you may be able to determine if the works are public domain. In general, anything created before the 20th century is public domain: things more recent than that are harder to be definitive about. Some author's such as the US government (but most other governments <em>do</em> claim copyright) specifically renounce copyright - all their works are public domain.</li>
<li>If you do inadvertently breach copyright, comply immediately with any request to stop.</li>
</ol>
