What Bloggers Should Know About Copyright and Fair Use

Whether they know it or not, bloggers confront copyright issues every time they publish a post. If they’ve copied and quoted text, the odds are very good that the copied text was someone else’s copyrighted work. The same is true if they’ve displayed a photograph, graphic, or other image that they found on the internet. And, of course, what a blogger writes is generally his or her own copyrighted work with all the protections that status implies.

Those protections include the exclusive rights to copy, distribute, and display the copyrighted work. So where does that leave us if, say, we want to discuss a recent article in the Washington Post or to titter over a photograph of the drunken débutante of the week? The answer is Fair Use. The fair use doctrine provides that some limited use of copyrighted material is permitted even though it is unauthorized.

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Fair use isn’t, however, carte blanche to take the copyrighted works of others. And it’s not always easy to tell just how much copying fair use will cover. At the suggestion of Brian Ledbetter, of the recent snapped shot copyright dispute, I have pulled together some guidelines for bloggers on copyright and fair use. One of the reasons I’m so insistent about explaining fair use when it comes up is that many well-meaning people have been led to believe that it protects their activities when it doesn’t. By correcting the more common misunderstandings, I hope we can limit the damage, if you will, among bloggers and blog-readers, and get on with what we like to do.

DISCLAIMER (You knew there had to be one, right?): I am not a lawyer (UPDATE: I was not a lawyer at the time I wrote this; I am now, but that does not alter the fact that what follows is not legal advice) and I’m not qualified to give out legal advice. What follows is an informative guide to keeping out of copyright trouble based on my own experience in this particular area of U.S. law; it is not legal advice. It is not necessarily complete, nor should you rely on it if you find yourself facing accusations of copyright infringement. If you are in that situation, get an IP lawyer. The only way to entirely avoid the problem is to NOT COPY ANYTHING. The rest of us, who just can’t help ourselves, should read on…

Intellectual property is property just like any other. It can have value or be totally worthless. It can be passed from person to person, leased or rented, and bought and sold. Its owners can be individuals or corporations. And it can be stolen. For that reason, the law provides copyright owners with robust protection. But because we don’t want to completely wall off recent works from public discussion, the law also provides a limited exception.

1. What works are covered by copyright?
Literary works, musical works, dramatic works, pantomime and choreography, pictorial, graphical, and sculptural works, sound, and architectural works that are recorded in some manner. Most importantly for bloggers, this includes things like news articles and op-eds, photographs provided by the wire services or others, and our own original writing on our blogs.

It does not matter that the only place the work is recorded is the internet. Nor does it matter, generally, whether the author displays the “©” somewhere on, in, or near the work. Nor does it matter that the work is provided for you to view for free. Finally, it does not matter whether or not the author registered the work with the Copyright Office.

The bottom line: if it falls into one of those groups, is original, authored, and recorded in some manner, it can be covered by copyright.

2. What cannot be copyrighted?
Copyright only covers the expression of the author. It cannot cover facts or ideas. So, for example, no one can copyright a news event and prevent you from discussing it. You cannot take another person’s expression of the news event—the words or images he uses to describe it—but you can author your own.

Similarly, no one can copyright an idea, say, the idea of a girl lost in the forest as the basis of a children’s story. You cannot copy word for word another person’s story or even paraphrase his plot—that’s his expression of the idea—but you can write your own children’s story about the same idea.

Also, unoriginal works are not protected. So if I make a photocopy of Steven Spielberg’s next script, I cannot claim to own the copyright in the photocopied version.

The bottom line: No one can ever stop you from writing about the news. You are free to write about factual events and their sequence, including (generally) who said what and when or who did what and when.

3. How do I tell if something is copyrighted?
A good default position is to assume that if you are reading it (in the case of text) or seeing it (in the case of images or audiovisual works) or hearing it (in the case of music) then it is copyrighted. The vast majority of works available to you on the internet are subject to copyright. This goes double for any copyrightable work created in the last seventy-or-so years.

Unless you have good reason to believe that something is not currently protected by copyright, for example, because it has a notice that says “Public Domain” attached or because it is 500 years old, your best option is to assume that it is copyrighted.

I will note again for the sake of thoroughness that it does not matter that something is free for you to view; it can still be copyrighted. It does not matter that a work is easy to copy, like so much on the internet; it can still be copyrighted.

The bottom line for bloggers: Assume that something you find on the internet is copyrighted and act accordingly.

4. What is fair use?
Now we get into the meat of it. The fair use doctrine provides that copyrighted material may be used even without authorization from the copyright holder for purposes including, but not necessarily limited to, “criticism, comment, news reporting, teaching, scholarship, or research.” This does not, however, let you copy, distribute, or display just anything if you are engaged in one of the listed activities.

Your use must be appropriate or “fair” given the copyright holder’s rights. If you end up, unfortunately, in court over this question, the factfinder (usually a judge) will examine four factors in detail, but we don’t need to think about them right now.

For copyright law, “fair” does not mean what you think is fair. The word has a legal meaning apart from common, every-day usage. Don’t be lulled into a false sense of security and think that just because you are a snarky news blog, you can ignore the copyright protections of legacy media.

5. Okay, so how much use is fair use?
Generally, excerpting portions of copyrighted text is permissible, especially when you are commenting on or criticizing the excerpts. For example, if you are writing about a current event and want to use part of a newspaper article in your discussion, you may quote portions of the text to aid your discussion. Be very careful, however, that you are making news comment and not just running an amateur news service where all you do is reproduce the significant bits of other people’s copyrighted works. That’s not fair use.

When it comes to photos, the problem is that it generally isn’t possible or desirable to copy, distribute, or display just a portion of the photo. In the particular area that concerns us—the internet—some courts have held that use of a photograph is fair if the purpose is to direct the viewer to the original and if it is of vastly reduced resolution. But do not let that fool you. That description also fits what legacy media outfits like CNN and the New York Times do and they pay good money to the wire services for the pleasure.

Bloggers may want to put themselves on stronger footing by reducing the resolution of displayed photos and hotlinking to the copyright holder’s original, but that does not necessarily make their use “fair.” The central issue in cases like this is the purpose of the blogger in displaying the photo. If he is just doing the same thing as the wire service—providing newsworthy images to interested viewers—he will likely still be infringing the copyright.

To get around this problem, the key is that your criticism or comment has to be about the photograph itself and not just the content that it depicts. In essence, you are making the photography part of the news story. You can accompany your criticism of the photography with discussion of the content, but without the former, you are just illustrating your news posts with photos that belong to someone else. Again, that’s what the legacy media does and they have to pay good money to do it.

6. What is not fair use?
You cannot take and republish entire copyrighted articles, even if it is free to view them on the author’s webspace. In fact, you cannot take and republish entire copyrighted articles, even if you paid to view them behind the author’s subscription wall. In short, there is no way to stretch the fair use doctrine to include copying entire textual works that are copyrighted. You’re not Google, don’t try it.

Also, copyright infringement is not cured by attribution. Think about it. I don’t get away with stealing my neighbor’s car just because I say who it really belongs to when I give it away or sell it. You’re confusing copyright infringement with plagiarism.

Finally, copyright infringement can still occur even if you make no money from the use and even if you cause the copyright holder to make more money. As the copyright holder, they have the exclusive right to copy, distribute, and display the work. There is no exception for not-for-profit, pajama-clad web-warriors, nor does the law penalize gigantic corporations who have copyrighted works.

7. How does this affect me in practice?
In reality, things aren’t so restricted. Copyright holders have neither the time nor the interest in pursuing every violation from small-time bloggers and other internet cranks. But that doesn’t mean that you are legally in the clear. It only means that you aren’t enough of a thorn in their side to cause them to call in the lawyers. I think you can probably get away with quite a bit more use than what is “fair.” Don’t think that the forbearance of copyright holders will last forever or will protect you in all circumstances.

Also, the fair use doctrine provides you a defense to accusations of copyright infringement. But having to assert this defense means that you could still end up in front of a judge. That’s a punishment all it’s own and entirely separate from the question of which party is “in the right.” Keep in mind that civil and cooperative engagement with the lawyers when they come knocking can get you a long way and might save you some grief.

Finally, to take a line from Stephen den Beste: Don’t Write Letters. I know that this is a superficial discussion of the subject; the purpose here is to help bloggers make smart decisions about what they put on their blogs, not teach a seminar on copyright law. Also, and most importantly, if you email me a question of the form: “Is [my usage] fair use?” I cannot reply. I’m happy to discuss the factual realities of copyright law, but I cannot and will not make a “ruling” as to your legal situation.

~ by Gabriel Malor on March 4, 2008.