Fair Use

Blog and forum owners–and also corporations and all sorts of organizations–can make limited use of copyrighted material as long as they can claim that their use of said material falls under the provisions of fair use. Which would be even more awesome than it already is if it weren’t for one teensie, weensie, little detail:

There is no hard and fast rule to fair use.

Fair use, paraphrasing David L Amkraut (in a guest post over at The Book Designer), is an affirmative defense: the person accused of infringing on someone else’s copyright admits to the infringement, but claims that such use fall under fair use, and therefore should be allowed.

The courts will look at four factors to determine whether the defendant’s use of the material under copyright is indeed fair use–or plain old infringement. In layperson terms, the four factors are: purpose of use, the nature of the work, the amount of work used vs the whole of the protected work (or, in some instance, the weight of the quoted part vs the whole), and finally, the effect the use of the copyrighted work in that particular way would have on the rights of the copyright owner–such as the copy diminishing the market value of the original.

Below is what I wrote on Fair Use Doctrine for MyMedia.com:

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Please note that some of what follows was included in this post, and that I have written other posts similar to this in different venues, including PMs, blog posts, blog comments, etc.

Please also note that the post itself, with formatting to highlight quoted text, and bolded links to the source of the quotes, is itself a decent example of how to actually adhere to the fair use doctrine when using someone else’s material.

Finally, keep in mind that I am not a lawyer, I don’t play a lawyer online, and the following is not legal advice.

In the US, once a person writes something (or takes a photograph, or paints something), they automatically own the copyright. To fight over said copyright in court, it’s better if they register it, but it’s still already automatically under copyright to the person who wrote it/painted/photographed it.

Often people will want to use material or images that other people created, such as when discussing a book, a news piece, a speech, the lyrics of a song, etc. It is important, when doing so, not just to avoid plagiarizing the original content (link to other post goes here), but also to avoid violating the copyright of the original content. Because people can get in trouble—expensive trouble—for copyright violations.

However, most of us still want to use some of that content under copyright as springboards for discussion, to give our opinions on something, etc. So how can we do that and not run afoul of copyright law?

One, create original content.

Two, when you use someone else’s work as basis for your own content (such as writing a parody, analyzing a work, writing a review, or using someone’s analysis/review/post as a springboard for your own analysis/review/discussion) do your best to adhere to the principles of Fair Use.

Note: the Fair Use doctrine is a defense, not a free pass, and there are no hard and fast rules for its use. In fact, it can get confusing if and when it gets to a court of law. Therefore, keep the following guidelines in mind as you write.

One of the easiest ways to ensure you are on the right side of the Fair Use doctrine is to never lift entire content, and to always provide original content—analysis, editorial, opinion, etc—to go with it.

From the Fair Use page

If you merely reprint or repost a copyrighted work without anything more, however, it is less likely to qualify for protection under this prong. If you include additional text, audio, or video that comments or expands on the original material, this will enhance your claim of fair use.

It’s also best to limit how much of the original text is taken/reposted. In this context, less of the other person’s material and more of yours is best.

Again from the Fair Use page

If the excerpt in question diminishes the value of the original or embodies a substantial part of the efforts of the author, even an excerpt may constitute an infringing use. If you limit your use of copyrighted text, video, or other materials to only the portion that is necessary to accomplish your purpose or convey your message, it will increase the likelihood that a court will find your use is a fair use.

The fair use page has some basic, easy to follow tips on how to avoid copyright liability when linking, quoting, etc:

Still from the Fair Use page

While there is no definitive test for determining whether your use of another’s copyrighted work is a fair use, there are several things you can do to minimize your risk of copyright liability:
· Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;
· Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;
· Add something new or beneficial (don’t just copy it — improve it!);
· If your source is nonfiction, limit your copying to the facts and data; and
· Seek out Creative Commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.

In more layman terms, when quoting someone/something:

+ always provide original commentary/content to go with the quote,
+ always format so the quoted material is clearly distinct from the original content you provide,
+ always quote the smallest bit of the whole that will make sense–sometimes a line, sometimes a paragraph—and strive to make sure that your contribution is more, both in length and in actual content (as in, opinion/discussion/interpretation of the article or piece you are quoting, rather than just a summary)
+ always state (or imply) that your purpose in quoting (and more so when using images) is to encourage discussion of the topic/item at hand
+ even when posting about news items, it’s best to stick with the headline as part of your title and then rewrite most the item/article/whatever in your words, and always include visible links to the source.
+ song lyrics are protected by copyright, so a link to your source with only a line or two (the refrain, perhaps) is best.
+ always link correctly—to the specific source, not just a generic website—and add a credit line when the author is known (this line can be an online name, which can be considered a pseudonym of the author)

Very important:images are protected by copyright too, and just because you uploaded them to your computer or your photobucket or pinned in Pinterest, it doesn’t make them yours,so here are some basic guidelines when using someone else’s images:

What to do: do not grab images from Google or anywhere else unless you know who owns the copyright and have their permission to use it (hint: if you took the picture, you own the copyright), or unless you are sure your use of the image falls under the principle of fair use.

Fair use: fair use is a defense for copyright infringement.

Keep in mind, you are still using something that doesn’t belong to you, so it’s only when you are using that something to educate, to discuss it, to make a parody, to deconstruct/analyse, or to transform it, that you are likely to be ok

Thumbnails and signatures: if you are transforming the image sufficiently (cropping to thumbnail, for example) you are probably okay, though acknowledgement of the source always helps.

Screen captures, movie posters, book covers, music album covers, most actors/artists images: as long as you are discussing the content of whatever image you are posting, you are covered by fair use. Posting the movie poster without any content related to the movie doesn’t work.

When in doubt: do not use the image.

Educate yourself: a good primer for copyright use: the Digital Media Law Project.

If/when you have permission from the copyright holder, you can go crazy as long as you include that permission in the post (i.e., “crossposted with permission of so-and-so, author/copyright holder”) or with the image.

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And just in case you missed it: I am not a lawyer and the above is not legal advice. I am not liable if someone sues you for copyright infringement. It is your exclusive responsibility to educate yourself on copyright and fair use.

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Read more on this blog under the copyright tag. Also, available from Duke’s Center for the Study of the Public Domain, the book Bound by Law? Tales from the Public Domain (A comic book and treatise on copyright at the same time.)

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