Fair Use and Infringement

As a public relations writer, you will use information and materials from a variety of sources. Therefore, it is important for you to understand thoroughly the dividing line between fair use and copyright infringement.

Fair use of materials, in general, can be done for purposes of criticism, comment, news reporting, teaching, scholarship, or research. If you are writing something and want to use a quotation from a copyrighted article or book, you may do so as long as you give proper credit to the author and the source.

If you quote a lengthy passage from an article or a book, however, it is best to get permission. In general, using a paragraph from a 1,000-word article is acceptable, but using several paragraphs might constitute copyright infringement if permission has not been obtained. Writers should also be careful about using whole paragraphs of copy­righted material with only a few words changed. If the content and structure of the sentences are virtually the same, this constitutes not merely copyright infringement but also plagiarism, a form of theft.

Writers of company newsletters and magazines, primarily using information for news reporting purposes, generally are within the boundaries of the fair use concept. Writers who prepare materials directly supporting the sales of a product or service (news releases, advertisements, promotional brochures), however, need to be more concerned about copyright infringement.

The use of a selected quotation from an outside source in a product news release or sales brochure, for example, should be cleared with the source. The reason is that you're directly profiting from using someone else's material to sell goods and services.

In addition, using selected quotes may distort the author's meaning. For example, a research report may give a new computer product an overall poor performance rating but mention some good things about the product too. To use only the favorable quote from the review in a news release or advertisement, the computer company should clear the quote with the report's authors to avoid possible lawsuits.

Titles of books and plays cannot be copyrighted, but the principle of unfair compe­tition applies nevertheless. Lawyers say that a public relations staff should not copy anything if the intent is to capitalize on or take advantage of its current renown. The key to a lawsuit is whether an organization is in some way obtaining commercial advan­tage by implying that a service or product has the endorsement of or is closely allied with the literary property. This is also a problem in using names and logos that closely resemble registered trademarks of well-known companies.

The use of cartoons, illustrations, and photographs from outside sources (either previously published or unpublished) always requires copyright permission. Copyright infringement also extends to videotaping television documentaries or news programs if the intent is for widespread use of the material to internal or external audiences.

Another category that always requires copyright permission is musical material. The holders of musical copyrights do not permit use of any part of their compositions without prior written permission. It is forbidden to quote even a part of a lyric or to play only a few bars of a tune. But also keep in mind that most classical music, especial­ly that of the seventeenth and eighteenth centuries, is in the public domain and can be used without permission.

 

Guidelines for Using Copyrighted Materials

Public relations personnel can avoid costly lawsuits by observing the following guidelines:

• Ideas cannot be copyrighted, but expression of those ideas can be.

• Be careful about using the titles of movies, books, and songs as themes for public relations materials and programs.

• News releases and publicity photographs are not ordinarily copyrighted be­cause their purpose is widespread distribution and use by the media.

• Major public relations materials (brochures, pamphlets, newsletters, videotapes, and position papers) should be copyrighted if only to prevent unauthorized use and copying of the format by competitors.

• Copyrighted material intended to advance the sales and profits of an organiza­tion should not be used unless permission is obtained.

• Copyrighted material should not be taken out of context, particularly if it im­plies endorsement of the organization's products or services

• Reprints of an article should be ordered from the publisher.

• Permission must be obtained from the copyright owner to use segments of popular songs (written verses or sound recordings)

• Permission is required to use segments of television programs or motion pic­tures.

• Photographers retain rights to negatives, and permission must be obtained to reprint photos for uses other than originally agreed on.

• Photographs of celebrities living or dead cannot be used for promotion and publicity purposes without permission

• Permission is required to reprint cartoons and cartoon characters. Cartoons, like other artwork and illustrations, are copyrighted.

• Government documents are not copyrighted, but caution is necessary if the material is used in such a way as to imply endorsement of products or services.

• Private letters, or excepts from them, cannot be published or used in sales and publicity materials without the permission of the letter writer.

 

Trademark Law

An organization's name, products, slogans, and manufacturing processes are usu­ally trademarked. That means that these things are officially registered and their use is restricted to the owner or manufacturer. A trademark is legally protected and should be capitalized whenever it is used.

A trademark is a valuable asset zealously guarded by its owners. Sony, Coca-Cola, IBM, Porsche, McDonalds, and Reebok are all registered trademarks. So is the Mercedes-Benz star symbol.

Organizations and corporations protect their trademarks in various ways. One method is to establish standard policies on how the organization should use and display its trademarked names. You must know the registered trademarks of your company and how they may be used.

Companies also guard their trademarks by continually using them, sending adviso­ries to media outlets about proper use of these trademarks, placing advertisements in journalism publications reminding readers of trademarked names, and monitoring pub­lications to ensure that other organizations are not infringing on a trademark. If they are, legal action is threatened or taken.

In sum, make yourself familiar with what might be considered trademark infringe­ment. Even if you are innocent, the money and time spent fighting a lawsuit are rarely worthwhile.

Here are some guidelines the courts use to determine if a trademark has been infringed:

• Has the defendant used a name as a way of capitalizing on the reputation of another organization's trademark?

• Is there an intent to create confusion in the public mind? Is there an intent to imply a connection between the defendant's product and the item identified by the trademark?

• How similar are the two organizations? Are they providing the same kinds of services or products?

• Has the original organization actively protected the trademark by publicizing it and using it?

• Is the trademark unique? A trademark that merely describes a common prod­uct might be in trouble. Microsoft, for example, lost a bid to trademark the word "windows" for its exclusive use.