Sam Vander Wielen: [00:00:10] Hey, hey, hey. And welcome to another episode of On Your Terms. I’m your host, Sam Vander Wielen, an attorney-turned entrepreneur who helps coaches, courts creators, and online service providers legally protect and grow their online businesses using my DIY Legal Templates and my Ultimate Bundle program.

Sam Vander Wielen: [00:00:25] So, I am so excited to have t
his episode today. This is a highly requested topic in my community because so many people want to learn more about making sure that they’re sharing other people’s content properly. A lot of people are concerned that the content that they’re putting out there might be too closely inspired by or leaning on content that they’ve gotten from other people. So, I’m really excited because I’m hoping that today’s episode will be like your one-stop shop resource for learning how to legally share other people’s content, knowing how, when it’s too close to the line of copying other people’s content, and all that kind of stuff.

Sam Vander Wielen: [00:01:03] So, in today’s episode, I go over a number of things about copyrights, like copyright basics, like what copyrights – even – what copyright even is and what kind of content it falls, what falls under that category. I talk about who owns a copyright and how you can use somebody else’s work legally, and I give you all of the different ways. Plus, we talk in depth about the fair use exception. You might have heard about that before, but you might be confused about what it is and how to know when it is – when something you’re sharing is falling under the fair use exception. So, I go over all of those factors today, and I hope that you’re going to love this episode.

Sam Vander Wielen: [00:01:44] You’ll also want to keep your eyes peeled when you’re listening to this episode, because in just a couple of days I have a major new freebie that I’m dropping for you that was highly requested, something I did a survey about, you might remember, but you are getting that in just a couple of days. It’s a free legal email template. I’m so excited to share it with you. You’ll want to keep your eyes peeled for that. And, other than that, I just want to get into it and help you learn how to legally share other people’s content. So, let’s do it.

Sam Vander Wielen: [00:02:15] So, you know how they always say in marketing that you should market to people about what they want but then teach them what they really need. I feel like that’s kind of what I have done in the past couple of years around copyright, like making sure you’re not being a copycat and not copying other people’s material. Because so many people come to me all fired up about like, “Is this person using my content?” “Is this person too close to me?” “Every time I create this, you know, program, this person creates a similar program.” And I always say, like, “Of course, we need to handle copyrights. Yes. Don’t get me wrong. But we also need to make sure that you’re not the copycat by accident.”

Sam Vander Wielen: [00:02:54] Not necessarily in that case, not like the one that you’re worried about. I just kind of like to take care of the stuff in our own house before we go around criticizing everybody else’s, right. Because so often online, I think that people are accidentally copying other people, or accidentally, quote-unquote, being inspired by other people, and it’s a little too close for comfort. But, yet, then they are the same ones that are going around looking at what everybody else is doing and thinking that it’s too close to them.

Sam Vander Wielen: [00:03:21] So, this episode is both about making sure that you’re not accidentally the copycat, but this episode is going to be super helpful for you if you’re also somebody who is just really conscientious and you’re really concerned about wanting to properly share content on your social media channels, on your website, inside of your courses and programs with your clients.

Sam Vander Wielen: [00:03:43] I get questions all the time from people about like, “How do I share this guide?” Or, “How do we share this PDF or this part of this book or this chart that has been so helpful to me? I want to send it to my clients.” So, this episode is going to be super helpful in working through some of those issues.

Sam Vander Wielen: [00:04:00] Because the problem, from my perspective, is that when people don’t understand how they’re able to properly use or reference or share other people’s content, it leads to two major problems. One is then the illegal use of that content just from a lack of awareness and not knowing, maybe it’s accidental or maybe it’s on purpose and you just don’t care or whatever, but it’s illegal use of that content. Or, we also see a lot of times people not using content that you’d be perfectly fine using, and that would be super helpful to your audience because you’re so freaked out about accidentally copying somebody else that you’re like. “Oh, I’m not. I’m just not going to share this.” But, in reality it would actually be just fine.

Sam Vander Wielen: [00:04:44] So, I’m hoping that by the end of this episode, we don’t have any of that confusion anymore. That’s the purpose of today’s episode. So, let’s just get right into it and figure out how do we legally share other people’s content.

Sam Vander Wielen: [00:04:57] I think the first thing that you need to know and always keep in mind when it comes to most legal things, let alone copyright in particular, is that there’s no perfect formula. So, I think – I remember being a young attorney and being thinking that the law was going to be a lot more straightforward than it was. And, I thought things would be very clear cut, right? Like, “Oh, Okay. One plus one equals two,” and that’ll be it. And so, there’ll be a clear answer. And little did I know, showing up to law school and pumpkin spice latte in hand, of course, that I was getting into an industry that was basically a series of factors. Like, everything in law school was like a factor test.

Sam Vander Wielen: [00:05:39] And so, you would get these elements of a law and then they would be like, you know, five elements to larceny and then you would have to go through. And it wasn’t just like if you hit all five. It was always like a balance test. So, it’s very hard. And I find that to be one of the more frustrating parts of my job because people come to me for clear cut answers, and I understand why you want clear cut answers, but they just don’t exist for the most part in the legal profession. And that is especially true when it comes to copyright.

Sam Vander Wielen: [00:06:09] So, what we’re going to go over today is kind of a like factor test of sorts that you’re going to have to think through and think of the balance, you know, kind of the totality of the circumstances. And, it’s something that you’re always going to have to, unfortunately, evaluate on a case-by-case basis. So, you’re not going to learn – typically speaking, you’re not going to learn like, “Okay. Every time I do this, it’ll be totally fine. Every time I do this, it’s not fine.” That doesn’t really exist in the law.

Sam Vander Wielen: [00:06:39] So, we’re going to talk through, though, what these factors are. So that I’m hoping that after this episode, you’re able to walk away with a working understanding of what the major ones are so that they’re going to be some easy, like, knockouts, right? Like, this is definitely not okay or this definitely is okay because I understand some of the factors. But there are always going to be those cases in the middle, so we’ll talk through it.

Sam Vander Wielen: [00:07:01] Of course, if you have questions, you can always reach out to me. Let me know. Drop them in the comments. You do all the things. But I think you’ll have a better understanding after today.

Sam Vander Wielen: [00:07:11] So, what kind of content falls under copyright to begin with? Because a lot of times people will contact me and ask me about copyright issues or they’re like, “Someone’s violating my copyright because they’re using my course name,” and it’s like, “No. That’s a trademark.”

Sam Vander Wielen: [00:07:26] So, there are a certain like set of things that fall under copyright. So, some of the major ones, we’re not going to list every single thing so this is not an exhaustive list. But some of the major things that fall under copyright law in America, meaning that they are protected by copyright and the U.S. copyright law, are literary works, like, first and foremost, written things. So, things like books, but even other written content.

Sam Vander Wielen: [00:07:52] Music is covered by copyright. Lyrics of those music, of those songs. Photographs and videos, sound recordings, and even architectural work, which I thought was really cool.

Sam Vander Wielen: [00:08:03] So, obviously, in what we do in the online space and for most online coaches and creatives, this is typically covering the bulk of what we do, right? All of the stuff you’re writing, all of these videos, all of the stuff you’re posting on social media, the videos and audio inside of your courses. Like, just so much of what we do is actually covered by copyright.

Sam Vander Wielen: [00:08:27] So, you might be thinking then what’s the difference between that and trademarks? Well, trademarks cover – there are design marks, word marks, and then sound marks as well. But the main ones that apply to what we do under trademarks are the design and word marks, and design marks are the things like logos, symbols. So, like the Nike swoosh, for example. The Target bullseye. So, those kinds of things are covered by design marks.

Sam Vander Wielen: [00:08:51] And then, word marks are things like covering, giving you a trademark for actual names, taglines, names of programs, names of businesses, slogans, all kinds of stuff like that. So, names of products. So, those kinds of things are covered by copyright.

Sam Vander Wielen: [00:09:06] But the actual content that we’re producing, like the written content, the blogs, the videos, the songs you might be making, that kind of stuff, that is all covered by copyright.

Sam Vander Wielen: [00:09:16] So, who then owns the copyright when you create something? So, once you create an original work, meaning that you have created something that is not copying off of somebody else and you, quote, fix it in a, quote, tangible medium, those are all, like, super annoying legal terms, otherwise known as, like, you taking a photograph and then it saves to your phone or you writing a blog post and posting it to your website, or you writing an e-book and putting it on your site, or you recording a podcast episode and posting it. That is when you have now created something in which you own the copyright to it. You are the author. You are the owner of that copyright.

Sam Vander Wielen: [00:09:54] You get inherent copyright rights in something when you create it, even without registering. So, a lot of people think that they don’t have any rights unless they send it off to the U.S. Copyright Office. That is not true. You do have common law copyright rights in whatever you create, whatever original work you fix in a tangible medium. However, you get a ton of additional benefits by you sending it off to the U.S. Copyright Office and registering it. That is something you can either do yourself or something you could hire an intellectual property attorney to do for you. No, I don’t do that. I don’t offer any legal services. So, yeah, you can look into that if possible. But let’s talk through the rest of today so that we have a better working understanding of what this all even means.

Sam Vander Wielen: [00:10:38] How then can you use somebody else’s work then? Okay. Now, we understand, like what even falls under a copyright so that you would understand, like what content you see from other people that they would have a copyright to. You then understand who owns it. They do if they’ve created an original work and they’ve fixed it in a tangible medium, meaning that they’ve put it, you know, out into the universe. And then, so how can we use it properly?

Sam Vander Wielen: [00:11:04] So, there are a few ways. Obviously, the first and foremost that you can purchase it, right? That’s how you can, quote-unquote, use somebody else’s copyright. Like, when you go to your local bookstore and you buy a book, the author of that book owns the copyright to that book, but you’re allowed to use it, okay, read it because you purchased it. That is permissible under the essential, like essentially like the license that they’ve given you when you’ve purchased it. But you only get to use it as they prescribe in their licensing agreement. Probably only for you, only for personal use, not for distribution, not for sharing, not for selling, not for reselling.

Sam Vander Wielen: [00:11:42] So, there are usually a lot of limitations. Like, for example, I sell DIY Legal Templates. You can purchase those from my site and then when you download them, even though I’m the copyright owner of that, I’m giving you permission to use it for yourself in the way that I describe as essentially it’s a limited license, meaning that you can use it and you can use it for your business and your website or whatever else. But you can’t start sending it out to other people, or you couldn’t download it and put it in your site and sell it for half price. Like, that’s how – you know, I essentially give you the right or the license to use it but only in the way that I tell you is okay, which you’re allowed to do when you own the copyright. So, obviously, purchase and then use through that limited license is one way, of course, that you can use somebody else’s work.

Sam Vander Wielen: [00:12:26] But then what do you do when you want to actually share it, which is probably the problem that you’re running into? So, one way is that you get a license to use it in that way. So, you’ll see a lot of times people will have, you know, they’ll get a license to share certain sports teams logos and stuff like this. And like, you know, people on Etsy will make stuff with Disney stuff, but they probably aren’t even doing the legitimate steps. But that’s what that would look like, right? That’s how they should go about it, is to get some sort of license to distribute and to share.

Sam Vander Wielen: [00:12:57] You can also get permission, obviously. Like, permission’s always the best thing that you can get from an author, is that you reach out, you say, “Hey, I’m teaching this course. Is it okay if I reference this part?” That would be in an ideal scenario. That’s always the best option. But it’s also really impractical because you’re probably not going to hear back from, like, Oprah about whether it’s okay to use her thing. But you could reach out to Oprah’s publisher, and a lot of times if it’s a book, for example, a lot of times on the inside jacket of a book, it’ll actually tell you who to contact and to ask about re-sharing and distributing this content. So, you can always try that. But again, not super practical.

Sam Vander Wielen: [00:13:37] And, we kind of want you to have a system down so that, like, on the fly as you’re creating a course or you’re teaching something, or a topic comes up with a client and they’re like, they’re confused about something or want to learn more about an area and you want to share resource with them, it’s not going to be practical for you to reach out to other people. You’re instead going to need to know, like, how do I decide whether or not I can share this with that person?

Sam Vander Wielen: [00:14:06] Have you ever felt lost about where to begin with the legal side of protecting your online business? Some people say you can just wing it at the beginning and get officially set up later. Not a good idea, by the way. Whether you’re afraid to even start working with clients because you don’t want to do something wrong legally and then get in trouble or your business is growing and you sort of forgot to take care of the legal pieces, I’ve got you.

Sam Vander Wielen: [00:14:29] I don’t want you to live in fear of the internet police coming after you and your business, but you do have to do certain things and get certain things in place in order to legally and safely run your business online. As much as it just feels like an unregulated Wild Wild West online, that is very much not the case.

Sam Vander Wielen: [00:14:46] As an attorney-turned entrepreneur and former corporate litigator, I can assure you that there are rules. There are real steps that everybody who runs or starts an online business needs to take. And, you’re not behind at all. We can get you set up and following the rules right away. In fact, we can even do it today.

Sam Vander Wielen: [00:15:02] I want to teach you the five very simple steps to take to legally protect and grow your online business. You don’t need an MBA to be a successful entrepreneur and stay out of legal hot water, but you do need to dot your legal i’s and cross your t’s in a few key areas that can’t be skipped. That’s exactly what I’ll teach you in my free one-hour legal workshop called Five Steps to Legally Protect and Grow Your Online Business. Just head to mylegalworkshop.com, drop in your email address, pick the time, and I’ll send you a link to watch the workshop video whenever you have time.

Sam Vander Wielen: [00:15:32] This is the best place to begin if you’re just getting started legally legitimizing your business. So, head on over to mylegalworkshop.com and sign up to watch Five Steps to Legally Protect and Grow Your Online Business now.

Sam Vander Wielen: [00:15:47] The other way that you can share somebody else’s work, and the thing that we’re going to spend the rest of our time together today talking about, is that you can use somebody else’s work if your use falls under an exception like fair use. So, it would fall under an exception to the copyright law, which would say that you cannot use somebody else’s work. You can’t distribute, you can’t share, you can’t reference, you can’t do all of these things except if you fall under this fair use exception, which would then allow you to share somebody else’s work legally.

Sam Vander Wielen: [00:16:21] So, that’s what we’re going to spend the rest of our time today talking through, because this, in particular, like I was talking about earlier, is a balance test. This is a multifactorial thing where we have a lot of factors to this about what would make it okay to fall under the fair use exception and what makes it that you do fall under the fair use exception, what would definitely not. So, we’re going to go over those step by step by step. Let’s do it.

Sam Vander Wielen: [00:16:46] Okay. So, how do you know if you qualify for fair use? So, you have to evaluate the fair use factors, and I’m going to go over each of these today. I’m also going to link to a guide in the description below that’s from the U.S. Copyright Office. It’s a much more comprehensive guide so that you can read through it. I’m kind of giving you the cliff notes summary version of that today, but I am going to link to that below, and just remembering that there is no perfect formula or guarantee. So, you could think that you hit all of these factors and you think like, “Oh, for sure. I qualify under all these factors.” And then, a court decides that you don’t, right? Welcome to being a lawyer.

Sam Vander Wielen: [00:17:21] I used to show up for court all the time being like, “We got this man in the shade and we’re, like, totally fine.” And then, we get there. I was like, “I did not expect that.” So, it’s totally possible, but we’re going to do our best.

Sam Vander Wielen: [00:17:33] You know, courts consider these factors, and they also look at the entire circumstances of what you’re doing, how you were re-using it, what kind of work you were using, all that kind of stuff, to see if it’s okay. So, unfortunately, people don’t really know whether or not their use of somebody else’s work is going to be okay until they get sued and a court decides.

Sam Vander Wielen: [00:17:56] I think you put yourself in a really good position, and you would also put yourself in a good position to just talk to somebody if they ever contacted you and said, “Hey, I don’t like how you’re using my work,” or something like that, or they accused you of something. I think you would be able to show them like, “Hey, I went through all this to make sure I was using it in a best way possible and things would hopefully be okay for you,” but it’s just very convoluted.

Sam Vander Wielen: [00:18:21] Okay. So, what are the factors then that U.S. Copyright Law looks to in deciding whether or not your use of somebody else’s content qualifies under the fair use exception? The first is whether or not you’re using the other person’s content in a commercial versus an educational manner. So, when we say commercial, we mean you’re selling it or you’re using it in something that you are selling.

Sam Vander Wielen: [00:18:48] So, my ears always perk up when somebody tells me that they want to use somebody else’s content or book or videos or whatever inside of their course, for example, and it’s a paid course. So, that’s a little concerning to me because then you’re kind of building your course off the back of somebody else’s copyrighted work. So, that’s a little concerning. It’s not necessarily – again, none of these factors in and of themselves are necessarily good or bad or, like, totally knock you out or totally allow you. It’s just something to consider when we’re looking at the rest of the factors that we’re going to talk about today.

Sam Vander Wielen: [00:19:22] But we want to make sure that we are putting our own unique spin. So, you should essentially be coming up with your own theories or your own way of presenting things, your own methodology, so that you’re not relying on the ones that are created by other people. So, of course, we can absorb and learn. We can properly reference. We can differentiate ourselves too, right? So, you can read about somebody else’s theory and then think, like, this -this is actually why I don’t agree with this, why I don’t think – this is what I think they have wrong, or what I like to do differently. Like, what works differently for me and what works differently for my customers? So, that’s a great way where it’s like, of course, you’re inspired by something you’ve taken in some information, but you’re also doing it differently.

Sam Vander Wielen: [00:20:04] So, we’re not copying, we’re not doing what other people are doing and just trying to, like, change a couple words. That’s plagiarism. That’s just straight up plagiarism. That’s copyright theft, intellectual property theft, all kinds of stuff. That’s not what we’re doing here. We are doing our own thing, doing it on our own terms. That’s how we’re doing it. So, when in doubt, you need permission or you need to have a license to use it in a certain way, or you need to fall under the fair use exception or some other exception under U.S. Copyright Law that allows you to use other people’s content legally.

Sam Vander Wielen: [00:20:38] So, I hope that after today, you now feel more comfortable with some of the factors and you feel like you can kind of go through and see, like, which ones would definitely knock out your use of somebody else’s content. But I always say, you know, so many of my customers will ask me about like sharing content and resources and all these things, and I’m like, you know, it’s actually really helpful just to share resources. Like, you’d be surprised how much people appreciate it when you put together a PDF of your favorite resources and you just link to it, so you’re not presenting the resources as if they’re your own. You’re not copying and pasting the content in your PDF. You’re linking to it and sending people or creating a page on your website or whatever it is however you want to do it. But people find that really, really valuable because it is valuable. You’re saving people a lot of time and money and energy and effort by putting together these resources for them.

Sam Vander Wielen: [00:21:30] So, don’t be afraid to offer your customers, you know, a link and a resource and kind of a compilation of those resources as a way of pointing them back to the original author, the original creator of that work. And, I always say to that whenever you’re leading a course or you’re teaching some sort of program, instead of you teaching from a book and then basically giving all the content away, do it more like they did in college and tell people when they purchase the program that they have to go purchase this book, or better yet, send it to them as a client gift. So, you can include.

Sam Vander Wielen: [00:22:06] Like, if you’re – a lot of what you’re going to talk about is in this one book or it’s kind of like a prerequisite that somebody read something before they would join your course or something like that because you’re going to talk about it a lot, then have them purchase it. Support the author, support the original creator of the work, and if you can, please send them to independent bookstores or small companies to do so. But, you know, it’s really, I think, like it’s much easier than we make it. And, I see a lot of people just get hung up on this and they hold back on creating courses and all that kind of stuff.

Sam Vander Wielen: [00:22:36] The very last thing I do want to say is that if you’re getting too hung up on whether so much of your content is taken from other people, it might be an invitation for you to step back and make sure that you have something original to offer here, like something that you’re not just taking from other people, like a buffet and putting it together and repackaging it as your own course. But sometimes I think why people get freaked out about this is because they haven’t really taken the time to develop their own unique strategy or products. If you feel confident, like when I sat down and wrote my legal templates or when I’ve created my business, I felt confident that this all came from me. That also really helped. And I feel like what part of what helps in that was that I didn’t look at what other people were doing.

Sam Vander Wielen: [00:23:23] So, there’s a difference between getting educated and having to go through schooling or certification programs, reading books, whatever, to booster your expertise and then observing and consuming a lot of the peers in this industry. If you are doing the latter, if you are doing a lot of consuming and a lot of following your peers and all the people who you see on Instagram are all people who do what you do and, like, you know, you consider that research or something like this, I would really encourage you to turn all that off to get rid of it, to go back to episode one of my On Your Terms podcast and listen to how I talk about how this community over competition B.S. that has been perpetuated has made you.

Sam Vander Wielen: [00:24:06] It’s not anything to do, by the way, just spoiler alert, it has nothing to do with being supportive of people who do what you do. You should be super supportive and nice and just not care about it at all because there’s room for all of us. That whole episode is talking to you about just not consuming all of their stuff and following them. Because what I see so often is that then those are the people who get stuck in this loop of like, “Is my content too close to them?” “Am I allowed to share about this because I might have gotten inspired by this person?” It’s like, you know, what would be easier if you just weren’t inspired by them in the first place.

Sam Vander Wielen: [00:24:39] So, again, there’s a difference between the educational component and going to experts people outside this field, to school, to whatever, versus consuming all this content from your peers in the industry and from on social media and all of that. I would really encourage you to put on some blinders, put your head down, and build your own business on your terms. So, I feel like that’s a really good way to wrap up.

Sam Vander Wielen: [00:25:04] Thank you so much for watching this episode today, for listening to this episode today. I will drop some links below. I have a blog post about how to legally share content that I wrote a few years ago that has a lot of good resources in it. I’m going to link to that below. I’m also going to share the Copyrights Basics, a PDF that comes from the U.S. Copyright Office. That is a great thing to have on-hand for your business to just better understand copyrights in general, like when to register your own work, what it means to register, how you go about it, how to share other people’s content under the fair use exception, all of that. And last but not least, I will also link below to the fair use guide that also comes from the U.S. Copyright Office. I would definitely check that out if you want to learn more about how to fall under the fair use exception and legally share other people’s content.

Sam Vander Wielen: [00:25:50] So, thank you so much for listening to this episode of On Your Terms. I can’t wait to see you next week.

Sam Vander Wielen: [00:25:58] Thanks so much for listening to the On Your Terms Podcast. Make sure to follow on Apple Podcasts, Spotify, or wherever you like to listen to podcast. You can also check out all of our podcast episodes, show notes, links and more at samvanderwielen.com/podcast. You can learn more about legally protecting your business and take my free legal workshop, Five Steps to Legally Protect and Grow your Online Business, at samvanderwielen.com. And to stay connected and follow along, follow me on Instagram, @samvanderwielen, and send me a DM to say hi.

Sam Vander Wielen: [00:26:37] Just remember that although I am a attorney, I am not your attorney and I am not offering you legal advice in today’s episode. This episode and all of my episodes are informational and educational only. It is not a substitute for seeking out your own advice from your own lawyer. And, please keep in mind that I can’t offer you legal advice. I don’t ever offer any legal services, but I think I offer some pretty good information.

© 2022 Sam Vander Wielen LLC | All Rights Reserved | Any use of this intellectual property owned by Sam Vander Wielen LLC may not be used in connection with the sale or distribution of any content (free or paid, written or verbal), product, and/or service by you without prior written consent from Sam Vander Wielen LLC.