36. Can I Use ADA Materials or Other Existing Material in Promoting My Practice?
Using material created by and belonging to others may be possible, depending on what you want to use, how you want to use it and whether you obtain permission as required by law.
Let’s take a specific example. Say you come across an article on a dental development and you want to place the article on your website — it’s good information, and you think it might impress your patients or attract new ones. It is likely that someone, probably the author or publisher, holds the copyright to that article. This is true whether or not the copyright owner has affixed a copyright notice to the article. To reprint the article in full, you will probably need permission from the copyright owner. It is best to secure written permission allowing you to copy the work and use it when, how, and where you want to. Failure to obtain such permission would in most cases be a violation of federal law.
The following works — published or unpublished — are generally covered by U.S. and international copyright laws:
• Text (written works of fiction and non-fiction)
• Musical materials (songs and musical compositions)
• Visual images and materials (illustrations, photographs, and Web page graphics)
Copyright laws make it illegal to use or copy any copyright protected work without obtaining the permission of the copyright owner, unless it falls within one of the narrow legal exceptions. Use of a copyright “notice” (i.e., “© 2014 John D. Smith”) is no longer required by law (although it is still a good idea to use such a notice on your own copyrighted material), so materials may be copyright protected even if you cannot find a copyright notice on them.
As noted above, there are some exceptions to the general rule requiring you to obtain copyright permission before using third-party material. One exception is for materials which are in the public domain (this includes some, but not all, materials published by the federal government). Another exception is “fair use,” which permits the use of limited portions of a work, including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports.
There are no “bright line” legal rules stating the specific number of words or percentage of a work allowed by fair use. Whether a particular use qualifies as fair use depends on all the circumstances. Your lawyer can help you determine what constitutes “fair use” of third-party materials, whether materials are in the public domain, and also how to properly use various materials in connection with marketing your practice.
Related References and Resources
• U.S. Copyright Office’s Frequently Asked Questions
37. Can I Use the ADA Logo to Market My Practice? How Can I Use the ADA Logo on My Website? What Rules Apply to the ADA Membership Logo?
You may use the ADA logo in certain approved ways, such as displaying the annual window decal the ADA provides to current members and using items available from the ADA Catalog, such as membership plaques and patient educational materials. However, the use of the ADA logo for practice marketing, such as in advertisements, on your website, or on your practice stationery, is not allowed. You certainly can inform the public and the profession, without using the ADA logo, that you are an ADA member. The ADA logo is a registered trademark of the American Dental Association. It is used to indicate source or sponsorship from or by the ADA itself. For this reason, members cannot identify or market themselves or their practice using it. Of course, it is impermissible to state or imply, whether using the ADA logo or not, that ADA membership represents a special level of certification or qualification.
Although use of the ADA logo is not allowed, the ADA has created two logos that members may use. One is the “Visit ADA.org” button, which member dentists may use to link their website to the ADA’s website. The other is the ADA Member logo that identifies you as an ADA member. It must be used only in association with individuals who are members and cannot be used to identify an entire practice, which could give the false impression that a dental practice (as opposed to an individual dentist) can be an ADA member.
“Framing” the ADA website is not allowed. Framing is when a Web page from one website appears inside a “frame” on another website, so that the page appears to be on the second website.
Related References and Resources
• ADA Logos
ADA.org/en/member-center/member-benefits/logos-multimedia-promotional-toolkits/ada-logos
38. Is My Website Exempt From These Traditional Practice Marketing Rules?
No. The rules that apply to traditional marketing vehicles also apply to marketing on the Internet. Your practice website and social media communications are by no means exempt.
39. Can I Send Information About Products Or Services To Patients, Or Provide Patient Lists To a Company That Wants To Send Them Information?
HIPAA imposes restrictions on covered dental practices that wish to send marketing communications to their patients (or allow others to send marketing communications to their patients). In many cases, the dental practice must have a valid, written patient authorization to use or disclose patient information for marketing communications, and the authorization must contain specific information. Under new rules that took effect on September 23, 2013, if a dental practice (or its business associate) receives “financial remuneration” (dollars) for making a marketing communication from a third party whose product or service is being marketed, or by someone else on the third party’s behalf, the dental practice is required to have a patient sign an authorization form if the dental practice will use patient information in order to make the marketing communication (e.g., patient names and addresses, or information about a patient’s dental condition). The authorization form must state that the dental practice received payment for making the communication. The new rule does not apply if the dentist receives nonfinancial or in-kind remuneration for making the communication if the communication is for a permissible purpose under HIPAA. There are several exceptions to the authorization requirement. For example, patient authorization is not required for face-to-face communications or for promotional gifts of nominal value.
The September 23, 2013 HIPAA rules also contain restrictions on providing patient lists to others. Under the new rules, even if a disclosure is permitted by HIPAA, a dental practice cannot exchange patient information for remuneration from or on behalf of the recipient of the information without a signed authorization from the patient that states that the dental practice will be remunerated for the disclosure. The new rule applies whether the remuneration is direct or indirect, and it applies whether or not the remuneration is financial (that is, the new rule also applies if the remuneration is nonfinancial or in-kind). There are limited exceptions to the new rule, such as the sale of a dental practice to another HIPAA covered entity (or to a buyer that will become a covered entity after the sale), and for related due diligence.
Related Resources and References
• Chapter 8: Practice Websites (addresses legal issues involved in online marketing)
• Chapter 15: HIPAA, State Law and PCI DSS: Patient Information
• HIPAA 20 Questions
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