Bloggers Beware An exploration of fair use and blogger rights

Statement of the Problem

Two sources of conflict exist with regard to bloggers and their use of copyright protection. The first is a misuse of content by online users. Lee (2008) describes this as a culture where users feel free to use any content they see online. The second, more troubling issue is a culture where corporate behemoths intimidate individual users and prevent claims of fair use. Ultimately, the voice of individuals, like bloggers, is quieted out of fear of a lawsuit. This opens up the potential for large corporations to assume control of content with little flexibility for fair use.

Both problems stem from a misunderstanding of rights. As the number of blogs and online voices continues to grow, it's critical to make sure everyone understands and asserts their rights to use content online.

copyright and fair use laws

Copyright law provides protection to the creator of a piece of work to disseminate that work as they wish. It is the means by which the work of artists is protected, which occurs at the time of creation (Copyright Basics, 2012). For the purposes of studying digital environments, it’s important to know what can and cannot be copyrighted. Generally, copyright protections, according to Title 17 of the United States Code (2016), cover literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, video, audiovisual, or audio work. Copyright does not extend to ideas or anything intangible. Only the creator of the work or "those deriving their rights through the author" are able to have copyright over a piece of work (Copyright Basics, 2012). Once copyright wears off, works enter the public domain and are free for use without penalty.

Section 107 of Title 17 covers Fair Use. This essentially creates an exception to copyright protections. It is different from items being in the public domain. An item can be fair use and still have copyright protections on it. The question is not whether the blogger, for example, used a copyrighted item, but how they used it. To qualify as fair use, the usage of content needs to pass a four-prong test. The criteria to “pass” or qualify the use of a work as fair use, considers the following: 1) the purpose of the work, 2) the nature (e.g. published/unpublished) of the work, 3) the amount of the original work used in the reproduction, 4) the impact on the market of the original copyrighted work (Copyright law, 2016).

The other element to consider with online environments is the Digital Millennium Copyright Act (DMCA), which was enacted in 1998 (n.d.). This act revised copyright law so that use of copyrighted work online could be better regulated. Essentially, the DMCA gives work on platforms, like YouTube, for example, an extra level of protection. If a copyright holder feels that work is used inappropriately, they can issue a takedown notice and the platform (e.g. YouTube) must take that content down. The person posting can issue a counter to this and claim that their use of the content is fair use. If this counter-claim is not followed by a lawsuit within 14 days of the receipt, then content is reposted (MediaNet, 2015).

Excerpt from Title 17

history of the problem: cases of copyright and fair use

Fair use is not a new phenomenon for courts to grapple with. Previously famous cases that used fair use as a defense demonstrated the level of subjectivity that arises for each case. An important distinction to make in understanding fair use is that it is not a question of whether or not a copyrighted item was used, but how it was used. The following cases set standards for how to evaluate fair use, an important consideration when looking at more recent case law and the potential legal problems bloggers can face.

Garry Mark Brod v. General Publishing Group, Inc. (2002)

In Garry Mark Brod v. General Publishing Group, Inc. (2002), fair use never rose as a defense because an issue at stake was whether or not copyright was shared between Brod and Collins, two contributors to a collection of photos.

Noelia Lorenzo Monge, et al. v. Maya Magazines Inc., et al. (2012)

In Noelia Lorenzo Monge, et al. v. Maya Magazines Inc., et al. (2012), Maya Magazines Inc. published four photographs from celebrities Noelia Lorenzo Monge and Jorge Reynoso that were unpublished. The court rejected Maya's claim of fair use, saying that they were not transformative enough and harmed the potential market for the photos.

Harper & Row, Publishers, Inc., Et Al. v. Nation Entertainment Et Al. (1985)

In Harper & Row, Publishers, Inc., Et Al. v. Nation Entertainment Et Al. (1985), the four-prong fair use test was leveraged to determine whether Ford's memoirs had been wrongfully published. Critical criteria used to evaluate in this case was the nature of the work – Ford's memoirs were not yet published – and the amount used.

Twin Peaks v. Publications Int’l, Ltd. (1993)

When Publications International Ltd published a guide on the cult television show, Twin Peaks (Twin Peaks v. Publications Int’l, Ltd., 1993), the content was so thorough that it threatened the sales of official byproducts of the show (Stim, 2013).

Luther R. Campbell AKA Luke Skyywalker, Et Al, Petitioners v. Acuff-Rose Music, Inc. (1994)

Luther R. Campbell AKA Luke Skyywalker, Et Al, Petitioners v. Acuff-Rose Music, Inc. (1994) is one of the most famous fair use cases in that it opened up testing content to a greater analytical process.

Why is this a problem now?

The blogosphere is growing in scope. According to WordPress.com (2017), there are over 24.6 billion blog views for over 400 million viewers monthly (WordPress, 2017). This comes from one of the most well-known platforms for blogging, used by millions of individuals as well as well-known companies. Again, this growth, according to Wordpress, shows no promise of slowing down, a projection that is promising in light of spreading creative works, but troublesome when considering copyright. Some worry that with so many blogs, monitoring proper fair use is essentially impossible. As a consequence, bloggers feel less threatened by copyright holders and a “warming effect” (Lee, 2008) is taking place. Bloggers feel more emboldened to assume fair use than check first.

On the other hand, there is also a threat for bloggers or any small publisher to creatively express themselves in the name of fair use. Companies have the resources and incentive to demand that individuals take down content on which they hold copyright protection. Contrary to Lee’s “warming effect,” this has the potential to create a chilling effect. Let’s look at recent digital cases that involve fair use to better understand the problem today.

Lenz v. Universal Music Corp. (2008)

A user was asked to remove a video of her son while Prince’s “Let’s Go Crazy” played in the background. This case was a victory for private users, because it forced the court to acknowledge that before takedown notices can be asserted as part of the DMCA, companies need to consider whether or not the use of content was fair.

Morel v. Getty Images (US), Inc. et al. (2014)

Daniel Morel's photos that he posted on Twitter were secured and distributed by Agence France-Presse and Getty Images. This case was viewed as a victory for photographers when courts ruled that, although the platform Twitter allowed for reposting of photographs, it did not extend fair use of photographs outside of that platform.

Righthaven LLC v. JAMA (2011)

The non-profit, Center for Intercultural Organizing (CIO) was sued for posting an article on their website that originally appeared in the Las Vegas Review-Journal. While there was no dispute that the article was entirely reposted, its use was not for commercial purposes, merely for educating its audience.

Katz v. Chevaldina (2015)

Katz v. Chevaldina (2015) demonstrates a victory among bloggers against high-power persons leveraging copyright laws in order to control content. The plaintiff's use of a photo on their blog was deemed fair because of transformative criticism that accompanied it (Center for Individual Rights, 2015).

Meyers' Midnight Sun

Before the planned release of Stephanie Meyer’s unpublished Midnight Sun (2008), excerpts were published illegally online. In response, Meyer posted her own version to her blog in order to save her fans from having to feel dishonest about their consumption of it (Lipton, 2010). This is an interesting case when considering the blogosphere because no legal action resulted.

Determining whether or not content used by bloggers is legal is a circulating discussion online, with articles created to assist bloggers to “not get caught.” (EFF, n.d.; Gorman, 2012; Dear Rich Staff, 2013; Martinez, 2015). Often the message that bloggers receive is to be overcautious in their use of content, when in fact they can be much more creative.

SOLUTION

Lipton (2010) focuses on social norms as being excellent regulators in the blogosphere, and indeed they are. Standard best practices can develop that drive blogger behavior in terms of how they reproduce content. Lipton also suggests that intention should be a criteria to consider when evaluating copyright and fair use law. But without making any significant changes to law, such as what happened when the DMCA was formed, the underlying problem can still be addressed. The digital culture still breeds fear among small publishers like personal bloggers against large corporations. Those participating in online communities, like blogs, need to be educated on their rights. Rules should be explained clearly by hosting parties that do not have an interest in the copyright holdings. While copyright and fair use laws are freely accessible to anyone, many individual bloggers do not know how to look for, or interpret these laws. Bred in the blogosphere, bloggers will likely consult other, unofficial blog posts and websites that do not adequately explain the individuals' rights in full. Who, then, can be trusted to deliver information on copyright and fair use?

Trying to enforce education on bloggers about copyright and fair use is likely to be as effective as conveying a company’s terms and conditions when one subscribes to a newsletter. Until the interest of that blogger is at stake, they will not care to educate themselves on fair use. So what can be done? When a copyright holder claims copyright infringement against a blogger via the DMCA, for example, the third party should provide accessible information outlining the blogger's rights. This isn't merely linking to Title 17, but explaining what the infringement claims mean in laymen's terms for the blogger. Questions that clearly outline what copyright infringement means, why someone might assert this claim, and what next steps a blogger can take should be provided as part of a takedown notice. This will have the effect of not only educating bloggers of their rights when it matters to them, but lessening the fear of asserting fair use as a defense.

Is it feasible?

Enforcing websites like Wordpress to convey blogger rights has logistical challenges. The first is identifying what hosting parties need to provide this information. Another challenge would be determining what "laymen's terms" are when describing copyright laws. Should the explanation of copyright and fair use across all hosting sites be the same, or do hosting parties have the right to determine how they want to write this dumbed-down legalese? A final challenge would arise from parties who have an interest in copyright. Corporations might consider this explanation of fair use to be counter to their interests. Is offering legal advice to potential copyright violators fair to the copyright holder? If anything, making this copyright and fair use information clear and accessible to bloggers upon the reception of a takedown notice can become a best practice, a social norm in the digital community. This will transform fair use from something abstract to possible.

References

  • Center for Individual Rights (2015). Victory: Eleventh circuit upholds blogger's fair use of photo. Retrieved from https://www.cir-usa.org/cases/katz-v-chevaldina/
  • Chatowski, J.A. (2012, Sep 5). Case study: Monge v. Maya Magazines. Law 360. Retrieved from https://www.law360.com/articles/375640/case-study-monge-v-maya-magazines
  • Copyright.gov (n.d.). Executive summary: Digital Millennium Copyright Act. Retrieved from https://www.copyright.gov/reports/studies/dmca/dmca_executive.html
  • Copyright.gov (2017). Copyright law of the United States. Retrieved from https://www.copyright.gov/title17/
  • Dear Rich Staff. (2013, Aug 26). Making GIFs from book covers. Dear Rich: An Intellectual Property Blog. Retrieved from http://dearrichblog.blogspot.com/2013/08/making-gifs-from-book-covers.html
  • EFF (n.d.). Legal guide for bloggers. Retrieved from https://www.eff.org/issues/bloggers/legal/liability/IP
  • Estrin, J. (2013, Nov 23). Haitian photographer wins major U.S. copyright victory. The New York Times. Retrieved from https://lens.blogs.nytimes.com/2013/11/23/haitian-photographer-wins-major-u-s-copyright-victory/?_r=0
  • Foshee, A. W. (2014). Monge v. Maya Magazines, Inc: The demand for celebrity gossip and the doctrine of transformative use in the ninth circuit, 44. 5.
  • Garry Mark Brod v. General Publishing Group, Inc. 32 F. 231. (2002).
  • Gorman, E.D. (2012). Appropriate testing and resolution: How to determine whether appropriation art is transformative "fair use" or merely an unauthorized derivative? St. Mary's Law Journal, 43. 289.
  • Harper & Row, Publishers, Inc., Et Al. v. Nation Entertainment Et Al. 723 F.2d 195 (1985).
  • Katz v. Chevaldina, No. 14-14525 (11th Cir. 2015).
  • Lee, E. (2008). Warming up to user-generated content. University of Illinois Law Review, 1459.
  • Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150, 1152 (N.D. Cal. 2008).
  • Lipton, J.D. (2010). Copyright's Twilight Zone: Digital copyright lesson from the vampire blogosphere. Maryland Law Review, 70. 1
  • Luther R. Campbell AKA Luke Skyywalker, Et Al, Petitioners v. Acuff-Rose Music, Inc. 972 F.2d 1429 (1994)
  • Martinez, N. (2015, Jun 25). Fair use in blogging: Can bloggers use copyrighted images? Art Law Journal. Retrieved from http://artlawjournal.com/fair-blogging-bloggers-copyrighted-images/
  • MediaNet. (2015, May 27). FAQ: How does the DMCA really work? Retrieved from http://www.mndigital.com/blog/6-facts-understanding-dmca/
  • Noelia Lorenzo Monge, et al., v. Maya Magazines Inc., et al., Case Nos. 10-56710 and 11-55483 (9th Cir. August 14, 2012)
  • Righthaven LLC v. JAMA, No. 2:2010-cv-01322, 2011 WL 1541613 (D. Nev., April 22, 2011). Retrieved from https://www.copyright.gov/fair-use/summaries/righthaven-jama-dnev2011.pdf
  • Rice, T. (n.d.). What every blogger and freelance writer should know about internet copyright and libel laws. Upwork Blog. Retrieved from https://www.upwork.com/blog/2010/02/what-every-freelance-writer-bloggershould-know-about-internet-copyright-and-libel-laws/
  • Stim, R. (n.d.a.). Measuring fair use: The four factors. Stanford Copyright and Fair Use Website. Retrieved from http://fairuse.stanford.edu/overview/fair-use/four-factors/
  • Stim, R. (n.d.b.) The 'Fair Use' rule: When use of copyright material is acceptable. NOLO. Retrieved from http://www.nolo.com/legal-encyclopedia/fair-use-rule-copyright-material-30100.html
  • Stim, R. (n.d.c.). Websites: Five ways to stay out of trouble. Stanford University Libraries. Retrieved from http://fairuse.stanford.edu/overview/website-permissions/websites/
  • Stim, R. (2013). Summaries of fair use cases. Stanford University Libraries. Retrieved from http://fairuse.stanford.edu/overview/fair-use/cases/
  • United States Copyright Office. (2012). Copyright basics. Retrieved from https://www.copyright.gov/circs/circ01.pdf
  • Wordpress (2017). A live look at activity across WordPress.com. Retrieved from https://wordpress.com/activity/

Links to Image Sources

By Annie Rosean as part of COMM 6825, Marquette University, Spring 2017

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