“Curation” versus Fair Use: How to keep your content safe


fair use

By Kerry Gorgone, {grow} Contributing Columnist

“Content curation” is a powerful tool for marketing. By sharing someone else’s relevant, helpful content, you prove to your audience that you care about helping them—not just boosting your own site traffic.

But when does “curation” turn into copyright infringement? Too often, people will copy/paste an entire article onto their own site, then become indignant when the original author asks them to take it down.

This is from an actual email exchange with an agency website that did just that:

If you feel this is somehow in violation then feel free to waste your money and have your lawyers contact me. But be assured that its [sic] a two way street and I would advise you contacting direct next time before slandering us with a false statement like you did on our blog.

I am honestly shocked at your discord, the usual response we get is a ‘thank you’ and often an offer of a guest blog. We have provided both valuable links and distribution through our channels.

You’re “shocked” that someone didn’t thank you after you copied the entire text of their article and posted it on your own site? I find that difficult to believe, but let’s assume that some people genuinely don’t understand curation, copyright, or fair use.

In our litigious society, you MUST understand the difference between helpful curation and using content in a way that breaks the law. It boils down to understanding the concept of fair use.

What is Fair Use?

Fair use is a defense to a claim of copyright infringement. Just because you give somebody credit doesn;t mean it’s legal. Many people say that their use of someone else’s creative work is “fair” in a disclaimer post on the bottom of the page, as though that will shield them from liability. Only it won’t.

You only get to raise the “fair use” argument once you’ve been sued (and spent money on legal fees to defend yourself against the copyright infringement claim).

If you’ve never been sued, let me give you a visual: think about what it would look like if your business started hemorrhaging money, and nothing could stop the bleeding. Not a good scenario.

Keeping your content safe

There is no specific amount of someone else’s copyrighted work that you can always legally use. There are many “copyright urban legends” asserting things like “you can use 30 seconds of any movie without worrying” or “you can use 10 seconds of any song before you have to worry about copyright.” There simply is no magic number in a regulation somewhere.

For text, there is no set percentage of a work you can use without permission: whether the use is “fair” (and therefore legal) depends on the nature of the use and the specific facts of each case.

Bottom line, you can’t know at the outset whether your use of someone else’s copyrighted work constitutes “fair use” in the eyes of the law.

Once you’ve been sued for infringement, the court applies four factors to the facts of your case to assess whether the use was “fair:”

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
  2. The nature of the copyrighted work.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Here is the big concern: Did you profit from using the other person’s work? Did you sell posters of an artist’s painting, or publish a book that’s really just a compilation of other people’s blog posts?

And how much of the other person’s work did you use? A few key phrases to entice people to click the link to the original post, or the entire text of the post, word for word?

The court will also look at whether your use of the content undercuts the market for the creative work. If you’re selling prints of someone else’s photo, you’re obviously impacting an opportunity to sell the original prints.

By contrast, if you share a 30-second video of your adorable baby racing around the kitchen and dancing to a Prince song, are you undercutting the market for “Let’s Go Crazy?” Doubtful. And the Ninth Circuit U.S. Court of Appeals agrees. 

But if I re-post your entire article on my website, there will be no reason for anyone to visit your website. I’m essentially hijacking your site traffic. And linking to your original post in my carbon copy doesn’t make up for that: no one’s going to click that link when they can read the entire article without clicking.

Reposting someone else’s article word for word is not curation: it’s copyright infringement.

Safe curation

THIS is curation: I publish a blog post in which I say “Ann Handley raises an important point about brand bias in storytelling today on her blog,” with a link back to her site.

In this instance, I might use a small snippet or quote from Ann’s article, but I’m clearly not trying to steal her traffic. In fact, I’m actually trying to drive more traffic to her article. This is a use of content much more likely to be deemed “fair.”

Using parts of someone else’s work to criticize it or comment on it is also more likely to be fair use. It’s the copyright equivalent of saying “this stinks: smell it.” You’re not trying to take credit for the smelly stuff in the jar: you’re just commenting on how smelly it is, and warning others.

Fair use and visual content

Be especially careful using someone else’s visual content (pictures, videos, infographics) without permission. Some people post their copyrighted photos online and strategically optimize them for search so that people will easily find them and probably use them in their own digital content.

As soon as someone uses the content, the copyright holder pounces, threatening a lawsuit and demanding a financial settlement. Basically, it’s a trap!

Only use other people’s photos or visual content if you have their written permission.

Or, avoid the whole mess and use your own photos. It’s easier than ever now, with smartphone cameras taking such high-quality images.

You could pay to use stock photos, but your content will express your own personality and style better if you use your own.

The benefit of Creative Commons

Some authors and artists choose to release their work under a Creative Commons license. These licenses allow companies or individuals to use the work, provided people comply with the terms of the license.

Some Creative Commons licenses require only that you give credit to the author. Others are more restrictive, specifying “no commercial use” or “no derivative works” (new works based on the original).

One caveat: you can’t be sure that the person who uploaded the “Creative Commons” photo and chose the license actually owns it! So, once again, taking your own pictures and creating your own visuals is the safest option.

And for those who think copy/pasting is curation, I quote Dr. Peter Venkman from Ghostbusters: “My friend, don’t be a jerk.” 

For more detailed information on the issue of fair use, visit the United States Copyright Office website.

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Instructional Design Manager, Enterprise Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Google+ and Twitter.

Illustration courtesy signgenerator.org

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3 Free Content Curation Tools That’ll Enhance Your Social Posts


Social media is an important part of your small business marketing plan. Coming up with relevant and interesting content to post on a regular basis (that isn’t just about your biz) requires a little extra time.

At this point, you might be thinking that you don’t have time to sit around, browse the web, find great content and then post it to your social media accounts. Thankfully, there are free and low cost tools out there designed for busy small businesses like you. 

You can use curation tools. These social media tools find or suggest content that your audience will like and make it easy for you to share it. Here’s a list of three to check out:

1. Swayy

Swayy is focused entirely on social media curation. You tell it what topics you’re interested in and it’ll generate a list of related content. It also looks at your posts, your audience’s interests and their engagement with your business to add to the list.

The content is presented in a visual way, making it easy to scroll through and find interesting items to share. Here’s what a curated list of content looks like:

3 Free Content Curation Tools That'll Enhance Your Social Posts

If you what to share something, you can do so immediately or schedule it to appear at a later date. Swayy will analyze how well it did with your audience and refine the content search for the next time around. You can also view your analytics reports in real-time.

The free version gives you one dashboard. If you want to add to it, plans start at $ 9 a month.

2. Zite

Similar to Swayy, Zite gives you a list of content that matches your interests. As you look through the content, you can “like it” and the site will suggest similar content. As your list of liked content grows, the site hones in on your taste and gives you specifically tailored content to check out.

It has a clean layout, mimicking that of a newspaper or magazine. Here’s an example of what you’ll see:

3 Free Content Curation Tools That'll Enhance Your Social Posts

When you find a must-share article, you can post it directly to your site or social networks.

Added bonus: It’s free.

3. Hootsuite

Hootsuite is a popular social media tool. Many small business owners use it to manage multiple social sites, but it suggests content too. There’s a “suggested content” section where you can select topics of interest and get a list of popular posts that fit in that category.

If you see something you like, you can post it to your account with a few easy clicks. Here’s what it looks like: 

3 Free Content Curation Tools That'll Enhance Your Social Posts

As you can see, the content is set up in a list format, which is a different look than other tools.

As mentioned, Hootsuite is not just a curation tool. It’s a social media management tool as well, so you can access several social sites all from one dashboard, which is helpful for Aly Silverio, founder of independent clothing line Jawbreaking.

“It’s awesome being able to line up our tweets and not have to worry about constantly being on our phones to post tweets,” she says.

You get a double feature with this tool: curation and management.

There is a free version, with limited features. Paid plans start at $ 9.99 a month.

How to get started

Before you dive into any of these platforms, figure out what specific goals you want to achieve. Are you hoping to drive more visitors to your website? Would you like to find relevant content to share with your audience? Are you curious about whether or not your audience enjoys the content you’re sharing?

Once you know what you’d like to achieve, try out the free versions of the platforms and select one that fits your needs. 

Which social media curation tools are your favorites? Let us know in the comments section below.

Get more helpful content tips by subscribing to our weekly email newsletter, or checking our more content on our blog here

Kylie Jane Wakefield is a freelance writer and content creator in Los Angeles. She’s written for NewsCred, CMO.com, Forbes, Tablet Magazine, and The Jewish Journal of Los Angeles.

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