Here is Part II of A Crash Course in Copyright (as it relates to marketing) for Cannabis Entrepreneurs. Again, my disclaimer: I’m not an attorney. This series of articles is simply what I’ve learned and experienced.
What Constitutes Copyright Infringement?
In Part I we discussed a little about infringement within the cannabis industry. So, what constitutes copyright infringement? It’s easier to do than you think, and you probably do it all the time without knowing. It used to be hard to make a copy. You have a physical book and you want to make a copy of it, that’s a big job. In the digital world with sharing and mashup Internet culture, you likely commit copyright infringement all the time without even knowing. By the way, not knowing is not a defense. Essentially, copyright infringement happens when you make a copy without the legal right to do so. Very aptly named, right?
Let’s do an easy example. Again, I write an article. I put it out there. You copy and paste it or scrape my RSS feed and post it on your own site. Copyright infringement. Here’s an example that may not be so obvious though. Let’s say a friend of yours posts a great photograph of a trichome that they took on Instagram. You think it’s awesome and you want to share it elsewhere, so you download it to your hard drive and then you upload it to Facebook or Twitter. You’ve committed copyright infringement. Get this, just downloading it to your desktop was infringement because you made an illegal copy. Publishing it isn’t the criteria, but publishing it is how you could get caught. They’re both instances of making a copy without the right to do so. I see this constantly in the cannabis industry.
Here’s another story that will give you pause about when you can be guilty of copyright infringement. In our case, running The Cannabis Marketing Lab, throughout the years we have often been media sponsors for various cannabis industry conferences. Usually we’re friends with the people who run those conferences. We promote the conference on the blog and then at the conference we get listed as a media sponsor. One time this happened. We agreed to promote a conference and we were given banner ads and graphics to promote the event. We did use them in a post and then years later we get a cease and desist and a demand for money based on the fact that the banner that we published on the blog contained an image from a photographer and there was no right granted by that photographer for their image to be used. We look into it with our friends and turns out that yes, a designer they had used went and took a picture off of the Internet — probably Google images — and used it to create the banner. That’s copyright infringement. Not just for them, for us. It doesn’t matter that we didn’t know. It doesn’t matter that we didn’t create the banner. We made a copy we didn’t have a right to. That’s tough. In this case, luckily, our friends took care of us. They settled with the photographer on behalf of both of us.
What if they hadn’t been cool about it though? We would have had some remedies, but they would have been difficult because it was a handshake deal with people that are friends in the cannabis industry. We didn’t have any sort of contract. If we would have had a contract there would have been an indemnity clause, which means if you do something bad that causes us damage then you will compensate us. Even then, we would have still been guilty of infringement. We would have had to settle with the photographer and then after that go to our friends based on the indemnity provision in the contract. That’s something to take to heart when we do handshake-type deals like this.
Let me give you one more example, because this is what I came across a couple weeks ago on Facebook. The advice that was given to a question was dangerous, in my opinion. Anyway, the question was, “If you’re doing a Facebook Live video or any kind of video that so many people are doing these days, and you have music playing in the background while you do the video — and that’s a copyrighted song — are you guilty of infringement?” The answer is, “It depends, but yes.”
There is criteria here about how substantial the use was. The duration, how well it’s heard — all of these things. But she’s asking because people are doing videos with background music to enhance the video all the time. Somehow, they think that’s different from mixing in that track in Garage Band, because that would be infringement, but it’s just in the background. Nope, that’s a copy of a copyrighted work. Again, there are some criteria, but if you’ve let a whole song play on purpose because it enhances your video that you’re doing for commercial reasons, you could get in trouble for that.
That brings up the topic of fair use, because that’s probably what’s running through some of your minds right now. “Wait a minute, isn’t there this concept of fair use where I’m allowed to use other people’s copyrighted stuff?” Yes, there is, but let’s talk about what fair use is not. Fair use is not copying my article and then providing a link back to the article. That does not mean anything, you have still committed copyright infringement. Providing attribution — for example, you take that Instagram trichome picture and you attribute it back to the original source — is meaningless, it doesn’t matter. Copyright infringement. This is my favorite one, because it happens all the time on YouTube. Someone will post some copyright material and they will say, “This is not my content and I have no ownership of it, blah blah blah.” Yeah, we know that, you committed copyright infringement, it doesn’t matter. Again, seen a LOT in the cannabis industry.
What fair use is, is when you copy copyrighted material done for a very limited and transformative purpose such as commentary, review, critique, parody. These uses can be done without permission from the copyright owner. But let me make this clear, millions and millions of dollars have been spent litigating what fair use is and no one’s still entirely sure. Here’s the thing to keep in mind as a cannabis business owner, the purpose and character of the use — including whether it’s commercial or nonprofit — matters. You can guess which side is going to hurt.
If you’re doing it for commercial purposes, fair use is very restricted. Don’t rely on fair use to get you by, because it’s very complicated and you may get in trouble. Back to the background music example, these people are intentionally playing music to enhance their video which they’re using for marketing or promotional purposes. If someone were so inclined to do so, they would probably be busted for infringement.
Ok, so that was Part II of A Crash Course in Copyright (as it relates to marketing) for Cannabis Entrepreneurs. Stay tuned later in the week as I release the third part. Next up: How to Legally Gain Copyright from Someone Else.