As a general rule, you should not use third party content on a website unless you have entered into a written agreement with that third party assigning all right, title, and interest in the content to you or, in the event the website is for a business, to that business. This rule applies whether the third party is someone you hired to write the content or simply the owner of another website.
U.S. Copyright law protects works of authorship when they are created in fixed form. Ownership of the copyright in the work generally belongs to the author of that work. The exception is when the work constitutes a "work for hire." Section 101 of the Copyright Act defines "work for hire" as follows:
- a work prepared by an employee within the scope of his or her employment; or
- a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. . . .
Thus, the Copyright Act is clear that a "work for hire" agreement is necessary for a work to constitute a "work for hire," unless the work was created by an employee on behalf of an employer.
In all other cases, an assignment of all right, title, and interest in the work is necessary to transfer rights in the work to a third party.
Are there any other exceptions that would allow you to use someone else's content? The fair use exception does provide a limited exception to the rules of copyright ownership. Section 107 of the Copyright Act provides as follows:
[T]he 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
So, unless your use of third party content falls within the fair use exception, you are going to need an agreement with the owner of the copyrighted work to be able to legally use the content. Otherwise, you will be infringing on the third party's copyright and risk being sued as an infringer.
-- Kristie Prinz
