Digital journal jdh

1. COPYRIGHT LAW
Law School for Digital Journalists
October 18, 2013
Jon Hart
jhart@dowlohnes.com
1
Eric Lieberman
eric.lieberman@fusion.net

2. Copyright
vs.
Free Speech
〉Fundamental tension in the law
that governs the flow of
information
〉Copyright vs. Free Speech
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3. From the Earliest Days of Our
Republic
〉 Copyright is baked into U.S. Constitution
〉 “[Congress shall have the power] to
promote the progress of science and useful
arts, by securing for limited times to
authors and inventors the exclusive right to
their respective writings and discoveries.”
• U.S. Constitution, Art. I, Section 8, Clause 8
3
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4. The Premise
〉 To encourage:
• Writers to write
• Composers to compose
• Inventors to invent
〉 Law must protect the output of creative
endeavors by granting creators a monopoly
over exploitation of their creations
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5. 〉 So much for the romantic notion that
artists create art because they must
〉 “No man but a blockhead ever wrote
except for money.”
• Samuel Johnson
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6. Free Speech
〉 On the other side stands the Free Speech
〉 “Congress shall make no law . . . abridging the
freedom of speech, or of the press.”
〉 “The most valuable amendment on the whole
list.”
• James Madison
〉 Stated another way (with apologies to Stewart
Brand) “all information wants to be free.”
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7. Technology Is Disruptive
〉 This tension has been exacerbated by the
disruption we’ve seen over the last 15 years in
information businesses
• The digitization of content and the ease with which
digital content can be copied and distributed
• Elimination of distribution monopolies
•
•
•
•
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Newspaper: newsprint and trucks
Broadcasters: broadcast spectrum
Book publishers: distribution channels
Record companies: discs
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8. When the Competing
Interests Collide
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9. 9
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10. 10
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11. Setting the Stage: Copyright
Basics
〉 Copyright isn’t something you apply for
• Copyright springs into existence when a work is
fixed in a tangible medium of expression
〉 Copyright belongs to the “author” of the
work
• Employers own works created by their employees
• Work-made-for-hire agreements give publishers
copyright in works created by freelancers
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12. What Does Copyright Protect?
Works of authorship, including:
〉 Literary works (including newspapers,
magazine, etc.), photos, motion pictures and
other audiovisual works (e.g., TV and radio
programs and ads), music, drama, choreography,
computer programs, websites, apps, artistic
works, sound recordings
〉 Collective works: Think of a magazine made
up of freelance content
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13. Copyright Protects Expression
〉 Copyright does not protect:
•
•
•
•
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Facts
Ideas
Procedures
Discoveries
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14. Idea
〉People are egocentric and myopic
〉New Yorkers think of the City as the
center of the universe
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15. Expression
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16. Fact/Procedure
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17. Expression
The Joy of Cooking
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18. Exclusive Rights
〉 Right to make copies of the work
〉 Right to distribute the work
〉 Right to make derivative works
〉 Right to display or perform the work publicly
〉 Make digital audio transmissions of sound
recordings
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19. Practical Tips:
Writing Requirement
〉 Exclusive rights (assignment, work-madefor-hire, exclusive license) can only be
conveyed in writing
〉 Written agreements – even where license,
not ownership is being conveyed – are
particularly important in times of transition,
when norms are changing
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20. Practical Tips: Default — When
There’s No Contract
〉 Publisher gets a license, not ownership
〉 Terms of the license turn on the intent of
parties, determined from custom
〉 Content originally obtained for print
publication
• First, North American print publication rights
• Digital rights?
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21. License Limitations
〉 License rights are infinitely divisible
• Bundle of sticks
〉 Typical limitations
• Exclusive/Non-exclusive
• Limited by medium
〉Print, broadcast, web, mobile
• By language
• By territory
• Number of uses/time
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22. Practical Tips: Minimum Rights
〉 First publication rights (perhaps restricted to a
particular territory in print)
〉 Often exclusive for 90 days, then non-exclusive
〉 Worldwide right to distribute electronically
• Don’t limit yourself to “web” rights
〉Any current or future digital or optical means
〉All media known or hereafter invented
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23. Other Rights to Consider
〉 Right to edit
〉 Right to sell reprints
〉 Right to syndicate
〉 Right to license to searchable databases (such
as Nexis)
〉 Right to use name and likeness for
promotional purposes
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24. Practical Tips: Contract
Administration
〉 Create plain-English forms
〉 Don’t deviate lightly from the forms
• Multiple forms
〉 Centralize contract administration
〉 Hand write changes in the margins
〉 Include a revision date
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25. Copyright Misconceptions
〉 Attribution doesn’t excuse infringement
• Plagiarism is an academic and journalistic concept
• Attribution may help with fair use argument
〉 Copyright notice isn’t required
• Don’t assume a work is in the public domain just because
it lacks copyright notice
〉 But display notice anyway
• © [DATE] [IDENTIFICATION OF PUBLISHER]
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26. Practical Guidance
When Can You Use Content
Created by Others?
〉 Step 1: Is It Copyrighted?
〉 Step 2: Do You Have Permission To Use It?
〉 Step 3: Can You Use It Anyway?
〉 Unsure? Contact Counsel
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27. Step 1: Is It Protected By
Copyright?
〉 Probably yes
〉 To be protected by copyright:
•
•
•
•
Original expression
Fixed in medium
That’s it!
No need to register, or include copyright notice to be
protected
• 1978 on – almost impossible to abandon.
• Pre-1978 – very, very complex.
〉 Term of copyright. When in public domain?
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28. 28
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29. Step 2: Do You Have Permission?
〉 Permission can be obtained from the copyright
owner:
• in writing
• orally
• even by silence, conduct, “custom and practice”
〉 Does context show a photo or article is intended
to be used freely (“media” pages, a company’s
typical PR channels, a band’s Facebook page)?
〉 Terms of use/license on website?
〉 When in doubt, ask counsel
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30. Step 3: Can You Use Anyway?
(Fair Use)
〉 Copyrighted work, no permission
〉 Fair use/fair dealing is a defense
〉 Defendant must overcome a presumption of
copyright infringement; “burden of proof” is
on the defendant
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31. Fair Use/Fair Dealing
〉 Fair use/ fair dealing attempts to reconcile
monopoly rights of copyright owners with the
societal interest in the free flow of information
〉 Balances competing claims regarding what’s in
the public interest
• Goal of copyright monopoly is not to benefit the
“author”
• Rather, encouraging creative effort benefits society
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32. Fair Use/Fair Dealing
〉 Limits the copyright owner’s right to control
use of the work
〉 Copyright owner shouldn’t be allowed to
prevent uses of the work that enrich our
culture and do not significantly diminish the
value of the original work
〉 Designed to ensure that copyright law doesn’t
stifle the very creativity that copyright law is
designed to foster
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33. What’s a Protected Fair Use?
〉 Fair use (U.S.)
•
•
Subjective, complex, highly fact-specific
No bright lines
〉 Forget whatever you’ve heard about it
being OK to use x words, or y seconds of
music or video
〉 The U.S. statute instructs courts to consider
multiple, non-exclusive statutory and
nonstatutory factors
〉 Risk adverse? Get permission
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34. Fair Dealing
〉 Fair dealing (U.K., Canada, AU, NZ, etc.)
• Categorical: Research, criticism, news
reporting, etc.
• Brighter lines, less flexible
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35. Four Factor Test
1. Purpose and character of the use
(Commercial vs. nonprofit/educational;
criticism, comment, news reporting,
scholarship, research, etc.)
2. Nature of original work
(Published or unpublished; factual vs. creative)
3. Amount used in relation to work as a whole
4. Effect on market for original work
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36. Fair Use: Practical Guidance
〉 The relevant question is not “can I use this
photo (or video or illustration or text or
music)?”
〉 It’s “can I use this photo, which was originally
published in that context for my intended
purpose?”
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37. 1.Transformative Use
〉 More likely to find fair use if the borrower
uses the borrowed material in a way that’s
transformative: altering the original with new
expression, meaning, or message
• Thumbnails in image search engine
〉Complete images, but different purpose
• Clip of Ed Sullivan introducing the Four Seasons in
1966 shown in Jersey Boys
〉 Transformative uses add to the body of work
available to benefit the public
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38. Millennium Radio Group
〉 Example: Murphy v.
Millennium Radio
〉 Photo of DJs taken by
freelancer for NJ Monthly
“Best of New Jersey”
feature
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39. Not Fair Use
〉 Not fair use to republish photo on station
website to announce the award
〉 But, court said, if the photo had become
controversial because it was risqué, it
probably would have been fair use for a
newspaper to republish it in connection
with a news story on the controversy
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40. Fair Use Factor #1: Practical Guidance
〉 That doesn’t mean that any use in connection
with news reporting is OK
〉 If Forbes publishes a photo of Warren Buffet in
connection with feature, Fortune can’t just reuse that photo because it’s easier to do so
than to commission its own
〉 Same applies to other “favored” uses, such as
teaching, scholarship, research
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41. Fair Use Factor #1: Practical Guidance
〉 For use to be transformative, borrower must
add something
• Newspaper stories about Miss Puerto Rico
republished risqué photos taken by freelancer before
she was crowned
• By using the photographs in connection with editorial
commentary, the newspaper “did not merely
supersede the objects of the original creation, but
instead used the works for a further purpose, giving
them a new meaning or message.”
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42. 4. Effect on Market for Original
〉 If you borrow the essence of the original
work, you can infringe without taking much
〉 Harper & Row sued The Nation for publishing
a 300 word excerpt in advance of publication
of Gerald Ford’s 30,000 word memoir
• Time cancelled its contract to publish an
excerpt
• Supreme Court found The Nation had
published “the heart of the book”
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43. Fair Use Factor #4: Practical Guidance
〉 Question is not whether the copyright owner would
like to have been paid
〉 But whether “unrestricted and widespread conduct
of the sort engaged in by the defendant . . . Would
result in substantially adverse impact on the
potential market for the original.” Campbell v. Acuff-Rose
〉 Millennium Radio court stressed that freelancer was a
“professional photographer”
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44. Fair Use: Practical
Guidance
〉 In U.S., no hard and fast rules: x minutes, y words
〉 Don’t use the work the same way the copyright owner did;
use it in a manner that’s transformative
• But only copyright owner can make derivative works
• And don’t remove gutter credit or copyright notice
(DMCA), or information about the photographer from
within or adjacent to photo
〉 Don’t undercut the market for the original work
〉 Consult a fair use expert on close calls
〉 Post notice telling copyright owner how to contact you to
request takedown
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45. Fair Use: A Social Media
Illustration
〉 Facebook, Instagram, Pinterest, and other social
media sites are tempting sources of
photographs
〉 Technically easy to grab; legally more
complicated
• A photo belongs to the photographer, who took it
• May not even have posted it
• Terms of use don’t claim, or grant, right to reuse rights
(except, for example, within Pinterest)
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46. First Factor
〉 Purpose and character of the use
〉 Positive: news reporting, comment, criticism,
education
〉 Transformative use: using the photo for a
purpose entirely different from the original;
purpose
〉 Negative: commercial/for-profit
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47. Second Factor
〉 Nature of the original work
〉 Photos are generally considered creative
works, not just recitations of fact
• Contrast Google Street View images
〉 Published vs. unpublished
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48. Third Factor
〉 Amount and substantiality of the portion
borrowed in relation to work as a whole
〉 Almost always cuts against use of photo
• Want to use the whole thing, not just an
excerpt
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49. Fourth Factor
〉 Effect of use on market for original
〉 Images posted by professional
photographers vs. images posted by
amateurs with no intention to exploit
commercially
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50. Practical Advice
〉 Using photos to illustrate stories that
include meaningful original text less risky
than creating galleries of interesting images
from around the web
〉 Small sizes are easier to defend than larger
images
〉 Attribution helps the fair use argument
• But “courtesy of” implies permission
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51. Specific Situations:
Professional Submission
〉 Freelancer, photo agency etc.
〉 May be specific contractual terms.
〉 What about later use?
〉 A photo may be in your archives, but its
status may have changed in the interim.
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52. Specific Situations:
User Submissions
〉 Copyrighted owned by user
〉 But clearly express or implied consent for
posting on site
〉 To ensure other uses in the future, best to
get express consent
〉 Note: Just because user submits content,
doesn’t mean s/he is the author
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53. Specific Situations:
Background Music
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54. Specific Situations:
Videos with Embed Code
〉 If embed code is provided, this must mean assume
consent to embed
〉 YouTube Terms of Service:
• “6. Your User Submissions and Conduct”
〉C. [B]y submitting User Submissions to YouTube, you
hereby grant YouTube a worldwide . . . license to . . .
perform the User Submissions in connection with the
YouTube Website [which includes the embeddable player].”
〉 But some copyright owners’ TOS may require
embedding without editing—e.g., to run their ads
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55. Specific Situations:
Video Clips
〉 Very tricky
〉 Could be multiple copyright holders (e.g., video, music)
〉 Example: Clips from Sunday talk shows?
•
•
•
•
Express consent?
Implied consent, custom and practice?
Depends on how used?
Commentary
〉 Some websites are aggressively taking and recutting
others’ videos—they run a risk
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56. Specific Situations:
Facebook Photos
〉 Are protected by copyright
〉 Circumstances may or may
not indicate implied or
express consent to use
〉 Facebook users retain
copyrights
〉 Facebook TOS prohibit
unauthorized copying
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57. Good News: Limited Damages
〉 Generally speaking:
• Copyright plaintiff limited to single recovery per
allegedly infringed work
〉Whether a book, movie, article, or photo
〉Maximum statutory penalty for non-willful infringement:
$30,000
〉Maximum statutory penalty for willful (bad faith) infringement:
$150,000
〉 But:
• May have to pay the prevailing plaintiff’s attorneys’ fees
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58. DMCA Safe Harbor
〉 Section 230 immunity (discussed during Newsroom
Law Session) specifically does not apply to claims of
copyright or trademark infringement
〉 Service providers are protected in the U.S. from
liability for copyright infringement based on content
posted by users by the Safe Harbor provision of the
DMCA
〉 There’s no similar immunity or safe harbor for claims
of trademark infringement
〉 DMCA creates a notice and takedown regime
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59. DMCA Safe Harbor
〉 To find refuge in the Safe Harbor, online
service providers must:
• Have no actual or constructive knowledge that
material is infringing
• Have no direct financial benefit from the
infringement, if the OSP has the “right and ability
to control”
• Have registered with the Copyright Office an
agent to receive notices of infringement
• Act “expeditiously” to remove or disable
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60. DMCA Safe Harbor
〉 To register a designated agent, go to
www.copyright.gov
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61. 61
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62. 62
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63. Creative Commons Licenses
〉 Copyright law was developed to limit unauthorized
copying of creative works: “Copy right”
〉 But copying is what computers do and how the
Internet works
〉 Some think traditional copyright inhibits the sharing
of ideas
〉 To make it easier to grant licenses to digital works,
CC has created a suite of predefined copyright
licenses, what they call “some rights reserved”
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64. Creative Commons Licenses
〉 Creative Commons is not an alternative to
copyright
〉 CC licenses are built on traditional copyright
〉 Predefined based on three fundamental
choices:
• Permitting commercial or only non-commercial use
• Permitting derivative works or not
• If derivatives permitted, then “Share-Alike” only?
〉 All require attribution
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65. Creative Commons Licenses
〉 Grounded in law: Legal code layer
〉 Accessible to non-lawyers: human readable
layer
〉 Machine readable layer
〉 Some sites (Google, Flickr, etc.) permit users
to search for content licensed under particular
CC licenses
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66. Right of Publicity
〉 In the U.S., everyone, celebrity or not, has the
right to control commercial use of his/her
persona (name, likeness, and other personally
identifying characteristics)
〉 Right is modern
• 1902, NY court rejected a claim by young
Abigail Roberson that her privacy had been
invaded by distribution of 25,000 posters
bearing her photograph and advertising Franklin
Mills Flour: “The Flour of our Family”
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67. Right Is Modern
1902: NY court rejected a
claim by Abigail Roberson that
her privacy had been invaded
by distribution of 25,000
posters bearing her
photograph
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68. Right of Publicity
〉 NY legislature didn’t like the result
〉 Passed a law prohibiting use of the “name,
portrait or picture” of any person “for
advertising purposes, or for the purposes of
trade”
〉 Many other states followed New York’s lead
• Some, like Massachusetts and Virginia, modeled their
statutes on the New York law
• Others, like California, crafted their own approaches
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69. Right of Publicity
〉 Although the scope of the right of publicity
varies from state to state, the fundamental
protection is the same
〉 You can’t make use of a person’s name,
likeness, or other personally identifying
characteristics for purposes of trade or
commerce
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70. Editorial vs. Purposes of Trade
Prohibition use of one’s persona
for purposes of trade or
commerce doesn’t mean you can’t
use photos of people in
connection with news stories or
that you can’t put a celebrity on
the cover of magazine without
permission
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71. Purposes of Trade or Commerce
〉 But General Mills can’t put David
Ortiz on the Wheaties box
without his permission
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72. Persona
〉 Name
• Houston nightclub: The Velvet Elvis
〉Portable Toilets: Here’s Johnny
• “The Worlds Foremost Commodian”
〉 Likeness
• Jackie Kennedy look-alikes
• Elvis and Woody Allen impersonators
〉 Voice
• Bette Midler: “Do You Want To Dance” (Ford)
• Tom Waits: Frito-Lay/Doritos ($2.375 million)
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73. Any Indicia By Which Plaintiff Is Identifiable
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74. Any Indicia By Which Plaintiff Is Identifiable
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75. Additional Resources
〉 Internet Law: A Field Guide (BNA Books 2008)
〉 Government Information
• Copyright: www.copyright.gov
• Privacy, advertising: www.FTC.gov
〉 Reporters Committee for Freedom of the Press:
Digital Journalist’s Legal Guide
• http://www.rcfp.org/djlg/
〉 Berkman Center for Internet & Society (Harvard):
Legal Guide
• http://www.citmedialaw.org/legal-guide
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76. COPYRIGHT LAW
Law School for Digital Journalists
October 18, 2013
Jon Hart
jhart@dowlohnes.com
76
Eric Lieberman
eric.lieberman@fusion.net