We should assume that our audience will hold us accountable for third-party content on washingtonpost.com, whether it is embedded, copied or simply paraphrased. So follow common-sense rules: Don’t embed a video without having watched the entire clip. Know exactly what a block of foreign-language text says before excerpting it. Look at the entire Web page you link to before posting a link to ensure that other headlines and posts, side modules or ads are appropriate.
If the content we link to — or another part of that Web page — does not meet our standards for potentially offensive material, it still may be acceptable to post the link, based on its news value. But we should let users know what they will see before they click the link. (For example: “Warning: Some images on this site contain graphic images of war.”)
When linking to, embedding, aggregating or simply referring to non-Post content on washingtonpost.com, the first and best rule to remember is a paraphrased version of the Golden Rule: Use and credit the content the way you’d expect other sites to use and credit Post content. Misuse of non-Post content can cause serious harm to our reputation and expose the company to liability.
On any part of washingtonpost.com that is supplemented by third-party content, we must include attribution as a matter of course. It gives our users important information, makes us more transparent and properly credits other news organizations.
We should give credit every time we embed, excerpt or paraphrase others’ work on our site — no matter the platform the third-party used (print, blog, Twitter, etc.). We should give credit by both naming the content source and linking to the specific piece of content, if possible. When a story is being reported by many sources, we should link and credit the original report whenever it is possible to determine that source.
Using third-party copyrighted material
The copyright statute protects any original expression that is recorded in some way, such as text, sound recording and video recording. Facts cannot be copyrighted. Ideas cannot be copyrighted. But the original expression of an idea is protected by copyright as soon as it’s recorded. Once copyrighted, the work is protected from unauthorized copying, display, or use in a derivative work. A content creator does not need to register a work with the U.S. Copyright Office or include a copyright notice in order for it to be protected. Copyright terms are very lengthy. They can last more than 100 years before a work falls into the public domain.
When determining whether we can use third-party content, the first question is whether the content is copyrighted. The answer is probably yes. We should assume that a work is subject to copyright protection unless it’s a federal government work or it’s really, really old, in which case it may have passed into the public domain. You should consult with the Legal Department if you are at all uncertain about whether specific content is protected by copyright.
Permission can also be implied (or not) from the context in which the work appears (e.g., press kits).
EXAMPLE: Showing embedded videos from YouTube. The fact that YouTube has provided an embed code for a video does not mean that the copyright owner has given permission for the video to be streamed on the Web. In many cases, a person other than the copyright owner has posted the video to YouTube, without the copyright owner’s permission.
The Legal Department should be consulted if there is any question about whether we have express or implied permission to use a copyrighted work.
“Fair use” is a defense to using copyrighted work without permission. Unfortunately, there is no clear answer as to what sort of use constitutes a fair use. Courts look at multiple factors. Typically, courts weigh at least four of them. First, the purpose and character of the use. For example, is the use in the nature of commentary, criticism, or news reporting — which favors a finding of fair use — or is the use merely a reproduction of the original work (even if part of a news article). Second, the nature of the copyrighted work. Is the work highly creative or factual? Third, the amount/substantiality of the portion used in relation to the copyrighted work as a whole. It’s difficult to establish fair use if you copy an entire work, though possible (e.g., Google Images thumbnails have withstood legal challenge). Fourth, what is the effect of the use on the potential market for, or value of, the copyrighted work? Courts consider whether the use would displace sales of the original work and also whether there is a market to pay for licenses. Ultimately, it is very difficult to predict whether a court will find “fair use.” The U.S. Copyright Office sums it up well: “The distinction between ‘fair use’ and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.” The Legal Department should therefore be consulted whenever we wish to make use of copyrighted work and we have not obtained permission.
Here are some common misperceptions about copyright law:
- “It’s on the Web, so it’s okay to use.” To the contrary, there have been many lawsuits over the use of text and graphics from Web sites.
- “It’s on a user-generated content (UGC) site, so it’s free to use.” Not necessarily so. To take one example, a Creative Commons license does not guarantee that we can use an image on our Web site without permission. If you are at all uncertain about a photo’s origins, consult a photo editor. We should be especially cautious with these types of photos, seeking photo advice before publishing:
- Professional sports / sports events.
- White House photo ops.
- Celebrity handout photos.
- Corporate logos.
- Graphic images with nudity, violence or otherwise potentially offensive content .
The following Creative Commons licenses, however, do currently permit publication on commercial sites:
- “Public domain.”
- “Creative Commons, licensed for attribution.”
- “Creative Commons, attribution share alike.”
- “Creative Commons, attribution no derivatives.”
- “The photo [or other content] is clearly attributed to the source, so there’s no copyright issue.” Not so. Providing a clear and conspicuous credit to the person who created the content is not a legal defense to using that content without permission. As the U.S. Copyright Office says: “Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”
- “I used less than 30 seconds of the video” or “I used less than 250 words.” Wrong. There is no 30-second rule or 250-word rule, or any other bright-line rule, about what constitutes “fair use” of copyrighted content.
- “It’s in the public domain.” Unless it’s a federal government work, or a work that is really, really old, it’s probably not in the public domain.
It is imperative that you notify the Legal Department and an editor immediately if someone is claiming that we are misusing someone else’s content.
In this era of digital media, third parties may also make improper use of Post copyrighted content. If you discover possible instances of plagiarism, copyright infringement or other misuse of Washington Post content, logos and other intellectual property, especially on the Web, please send an e-mail to firstname.lastname@example.org. Please include the following information in the e-mail: (1) a link to or copy of the material that you believe is infringing on our intellectual property; (2) a link to or copy of the original Washington Post material (e.g., our article) that you believe is being misused; and (3) any other information that you think may be helpful or relevant (e.g., how or when you became aware of the misuse). The drop box is monitored by News and the Legal Department.