If your crowdfunding campaign includes any audio or visual elements you MUST consider issues of copyright ownership.

A copyright provides protection for literary, musical, or artistic works. Copyright is automatic and the owner (the person that created the work) receives certain rights as soon as a work is completed, even if no copyright symbol (©) is used.

Who owns the work?

Determine the ownership of any copyrighted work you plan to use before your campaign goes live. The simplest determination will be for those works you create yourself. You are the copyright holder, so you can do whatever you want with the work.

The next group of works includes those that you might obtain from a stock or creative commons type image repository. These works will have specific rights, and those rights will be dependent on the license granted to you when you obtain the work. The license will often be spelled out in the websites terms or with each individual work. Make sure you can use the work for business purposes; some sites may only allow personal use.

Works may also fall into what is called the public domain. This means the work no longer has copyright protection. Works in the public domain can be used in any way or manner. Use of a work that is in the public domain requires no permission. As a general rule, a work is in the public domain if it was first published before 1923. However, works published after this date may also be in the public domain, but the process to make such a determination is often complex.

Finally, if you cannot determine that your works fall into one of the above categories it is prudent to assume you will need permission to use that work. You may obtain permission to use a work through a number of avenues, but you WILL need the permission of the copyright owner.

Do you have a fair use right to the work?

Too many campaigns simply assume they can use any work they find on the internet and that some “fair use” argument will give them that right. Fair use is not a magic potion, it is not what you think is a “fair use” of someone’s work, but instead a very narrow exception to the normal rights of copyright holders. Fair use, legally speaking, is about benefiting the public good, not harming the copyright holder.

This becomes clear when we look at what the actual law says:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

The language is VERY specific. If you want to claim you have a fair use to use a work, you must be using the work for criticism, comment, news reporting, teaching, or research. Most crowdfunding campaigns will not be able to show that a fair use exemption exits for their use of another’s work. That isn’t to say that exceptions don’t exist, but as a general rule, it is not common. A careful case-by-case review of each work for which you plan to make such a claim needs to be made.

What if I just ignore all this?

 Sadly, because of how complicated this subject can become, many campaigns just skip making sure they have proper permission. Do not gamble your campaign’s success on the hope that someone does not notice your infringement! Federal copyright protection gives copyright owners a number of very powerful tools for protecting their works, including damages. The most common action taken by copyright holders, though, is shutting down campaigns using the Digital Millennium Copyright Act. Yes, the copyright holder can completely shut down your campaign.

In the end, it is not worth the risk. Determine what sort of permissions you need to use a work and get it. Otherwise, just use something else.