Quotes and Copyright: When Is It Okay to Use a Quotation?

Quotes are great!  I love them; bet you do too, Dear Reader.  Thing is: sometimes it’s fine to use a quote – but not always.  

Even if a quotation only involves a few words, it can still be protected by copyright law.  (Sometimes by trademark law, as well.)  And if it is legally protected, then the author owns them.  The quote is his or her property.  Use it, and you are stealing that property from a federal perspective.

So, when is it okay to use a quotation?  Here are a few tips and things to consider:

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Public Domain Is Your Best Resource

Any written words that have past their copyright expiration date are considered to be in the “public domain.”  The copyright has ended by the terms of the federal copyright laws.  The author no longer has property rights to the quotation.

The key here is to make sure that the quote is, indeed, free from copyright.  How to do this?

Well, you can confirm via the age of the quotation.  Anyone who has been dead for at least 100 years, you are pretty darn safe to use their stuff.  People like William Shakespeare, Lewis Carroll, or Plato, for instance.

But this isn’t always true.  Take versions of the Holy Bible.  Not every translation is free to use and in the public domain.  The King James Version:  yes.  The NIV: nope. 

Another example: Agatha Christie published her first novel in 1920 (The Mysterious Affair at Styles), and the Estate of Agatha Christie is vigilant about protecting her legacy – including quotes from her books and plays and letters.  Plus, her work is protected by the copyright laws of the United Kingdom as well as the United States.  

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Some Quotes Are Not Copyrighted

Not every quotation gets copyright protection under federal law.  Slogans for example aren’t copyright protected.  Some short phrases, ditto. 

For more on these exceptions to the rule, read:  “Copyright Protection for Short Phrases – Rich Stim,” by Mary Minow on the Stanford University Copyright and Fair Use blog. 

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Fair Use of a Copyrighted Quotation

Fair use is an exception to the protection of copyright and allows use of the copyrighted words.  Under the fair use doctrine, you can use a small excerpt from a published work without the author’s permission – if you are using it for certain purposes.

These include a review of the overall work (book, novel, play, etc.); a parody of the work; or for an educational purpose. 

Fair use is tricky.  Each case must be determined on its own circumstances.  Be careful here. 

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It Doesn’t Matter if the Quotation Has Been Published or Not

Copyright law does not apply only to works that have been published and shared with others.  Unpublished work is also protected by federal copyright laws.  

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What If You Want to Use a Quote that is Copyright-Protected?

To use a copyrighted quote, just ask.  Maybe you will be pleasantly surprised and the owner will be touched, even complimented, that you appreciate their work.  

Will they ask for money?  Not always, but sometimes.  That’s to be negotiated between you and the author.  You might pay a nominal sum, or you might be asked to fork a pretty hefty chunk of case.  All depends.  (This is called a “licensing fee.”) 

To quote your mother (and mothers everywhere), it never hurts to ask.

Fair Use and Copyright Infringement: The 2015 Dancing Baby Case and You, Dear Reader

There’s been lots of discussion about a recent Fair Use case that has come down from the United States Court of Appeals for the Ninth Circuit, Lenz v. Universal Music Corp., No. 13-16106 (9th Cir. Sept. 14, 2015).  Forbes, for example, lets its readers know that from this new court opinion, “[i]f a copyright holder ignores or neglects our unequivocal holding that it must consider fair use before sending a takedown notification, it is liable for damages.”
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Here’s what you need to know, Dear Reader, regarding “fair use” and “copyright infringement” now that the Dancing Baby Case opinion has been published.

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The Dancing Baby YouTube Video: Mommy Files a Lawsuit

Maybe you’ve heard of the "Dancing Baby Case."  Long ago, on February 7, 2007, Stephanie Lenz  sat down at her computer.  She went to the YouTube website and uploaded a 29-second personal video she had made of her two little kids dancing in the kitchen to Prince’s song, “Let’s Go Crazy.”  She shared the video on YouTube with anyone that wanted to see it.  

She named the video of her babies dancing in the kitchen, “Let’s Go Crazy.” In the video, early on, she asks her toddler son “what do think of the music?” and he responds by bouncing up and down.  

Meanwhile, over at Universal, a man named Sean Johnson had the full-time job of monitoring videos that were uploaded to YouTube for copyright infringement of Universal’s artists.  Among Universal’s artists was Prince, and it was Universal’s job to enforce and protect Prince’s song copyrights.

Sean Johnson was Universal’s man on the scene; employed an assistant in their legal department who every day went to the YouTube website to search for uploads of Prince’s music.  If that search came back with search results for a Prince song, then he would watch the video on YouTube.  

He made the initial call on whether or not the video "embodied a Prince composition" by making “significant use of . . . the composition, specifically if the song was recognizable, was in a significant portion of the video or was the focus of the  video."  If he found something objectionable, he would share it with others at Universal.  Universal would then notify YouTube that the video should be taken down as a copyright violation if Universal believed the “composition was the focus.”

In the Universal review process, Stephanie Lenz’s home video of her kids dancing in the kitchen to a Prince song was considered to meet their criteria. YouTube was notified by Universal to take the Dancing Baby Video down.  YouTube did.

Result?  Mommy Stephanie Lenz filed suit under the Digital Millennium Copyright Act ("DMCA") section 17 U.S.C. § 512(f), arguing that Universal misrepresented in its takedown notification that her 29-second video was an infringing use of Prince’s work. 

What the Lenz case holds:

“Her claim boils down to a question of whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use. We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. We affirm the denial of the parties' cross-motions for summary judgment.”

The Dancing Baby Case and You, Dear Reader

It’s an important case for you, Dear Reader, no matter which side of the copyright you’re on:   whether you are a writer, photographer, or designer trying to protect your copyright, or you are a blogger or ebook author who wants to use an excerpt or image that may be protected by copyright law.  

Here are some things for you to know:

Lenz Is Not the End of the Road on Fair Use

1.  This is a recent federal appeals court decision in a fight that lasted 7 years.  It’s a big deal.  

The only higher court than a federal appeals court is the United States Supreme Court.  Whether or not this case will be appealed to the High Court is one question (actually, a petition for writ would be filed).  

First, they may request a full  hearing of all the justices in the Ninth Circuit in what’s called a “motion for rehearing en banc.”  If the motion is filed and it’s granted, the whole case gets reconsidered by all the justices on the Ninth Circuit, not just the ones that were assigned to hear the case and who issued this opinion.  

Even if the losing party in this case wants SCOTUS to review the Ninth Circuit decision, and can do so after the rehearing motion, odds are not in their favor.  First, SCOTUS only agrees to hear a handful of cases that request review.  Second, a review is no guarantee that things would go their way; they could lose again.  

My point:  this opinion isn't quite jelled yet, it could change.  Lawyers know that the odds aren't high that a rehearing is going to change things (if it were granted), so many read the current opinion as speaking for the Ninth Circuit.  And the odds are even more remote that SCOTUS is going to change things, and even if it did, this opinion will be good law in the Ninth Circuit until it does.  

So, Lenz is probably going to become finalized law ... unless it's not after additional review.  There is a remote chance that this fight isn't over.  

2.  This is a decision out of the Ninth Circuit.  There are several regions, or circuits, in the United States.  Texas, for instance, sits in the Fifth Circuit.  

Each federal court of appeals in each federal circuit has the independent authority of reviewing cases that come before it within its jurisdiction.  These independent reviews may or may not agree, or jive.  In fact, controversies and opposite rulings in different federal circuits are often the reason that SCOTUS does grant writ and take review: to make the final call when two or more circuits don’t agree on the answer to a legal question or issue.

My point:  Lenz may or may not be final law for the Ninth Circuit (yet).  Once it’s final, it may be considered as a respected federal court decision by everyone in this country.  But it’s not the end of the road on this issue.  If a similar case were to be heard before the Fifth Circuit, for instance, would that court answer in the same way?  We don’t know.   It’s possible for a similar case to be heard in another circuit (YOUR circuit) and that circuit rule opposite from the Ninth Circuit in Lenz.  

Lenz Doesn’t Answer Every Question on Fair Use

3.  Another point.  Lenz is not a case with clear cut answers for everyone.  Within Lenz, issues are left unclear and not every question is answered.  Lots of lawyers are chatting with each other about what all Lenz will mean in future copyright infringement cases.  For instance:

• Is “fair use” a particular type of affirmative defense or is it not an affirmative defense at all?
• What exactly does this mean for those companies that sent out those robotic, automated takedown requests in bulk? 
• If someone wants to send a takedown notice, then they have to consider fair use — but Lenz explains the “…copyright holder’s consideration of fair use need not be searching or intensive.”  So, how does a copyright holder establish in evidence that they considered fair use before they send their notice?  Is simply saying “I considered the fair use doctrine in this situation and determined it didn’t apply” going to be enough? 

4.  What we do know from Lenz (this isn’t an exhaustive list):

• If you are going to send someone a takedown request under Section 512(c), then you have to consider Fair Use;
• Deciding if something is a knowing misrepresentation is done by a subjective (not objective) standard;
• No damages are available for “impairment of … speech rights” but nominal damages are available to plaintiffs suing under Section 512.

The Dancing Baby Case and You

What does this mean to you, Dear Reader?  

Well, we have a federal appeals court decision on the books now that helps people who want to argue they have a fair use right to use someone else’s work without it being copyright infringement.  It should make humans check the work of their robots before they automatically demand a takedown. 

Given the current state of web publication (including social media), there’s a lot of grabbing of content and images (ESPECIALLY IMAGES) and this case helps those people.  The people using the stuff.  Arguably.  

But Lenz is muddy water.  So, while the Dancing Baby Case is getting lots of attention (and kudos to the Electronic Frontier Foundation (EFF) for all their hard work here), this case isn’t something that provides an easy guide to the people out there who own copyrights or those who want to use stuff they find on the web that is copyrighted.  

The reality remains that there’s a lot of copyright infringement going on right now, and at the same time, there’s a lot of bullying of nice and decent people who have a fair use right to use an image or other work.  There are good guys and bad guys on both sides of the issue:  using stuff fairly and infringing on copyrights wrongfully.  

And Universal was challenged for not considering "fair use" before sending YouTube that takedown notice.  But if Universal had stated, "we considered fair use and found it lacking here," then would they have met Lenz's standard?  

Will Lenz really work to block bullies from blocking fair use through manipulation of DCMA takedown notices?  

Bottom line:  You need to ask a lawyer if you have a question in your particular circumstance.  Copyright infringement and fair use remain complicated legal issues, and Lenz does NOT make things clear.   

For more, read:

Big, Confusing Mess Of A Fair Use Decision Over DMCA Takedowns at Techdirt.

Cutting and Pasting into Blog Posts: Don't Be Lazy

I have a client that is great about keeping up with her weekly blogging schedule.  She posts twice a week, period.  You can depend on it. 

And that's great.  

What isn't so great, though perfectly understandable, is taking a section of writing from another source (another post, a magazine article, a book) and then cutting and pasting the guts of that writing into a blog post with a brief introduction, "I really liked this [insert name of source material] because it's so on point! It's so true!"

Or something like that.  Why is this bad?  

Well, as my client points out this might (or might not) be within the fair use doctrine and therefore not any kind of copyright infringement and it's clearly not plagiarism because she's giving credit where credit is due (she's not trying to claim the stuff as her own). 

However, substitute the cut and paste for a hyperlink and the post becomes a sentence or two.  Insufficient original word count.

True, it's great to find something that you want to share from a book (or magazine article or blog post) that someone else has written and use it as the basis for a blog post.  There's also the time-saving benefit (as my client pointed out, these types of posts are helpful on days where posts are scheduled and there's a time crunch). 

But what are you really sharing of yourself here?  And, without going into geek-talk (my client hates going down this road), Google will not appreciate these kinds of blog posts.  At all.  

Here's what I think needs to happen.  

I think that when you share something, you need to give your reader more than "lookie."  I think you need to comment and give your opinion on why you are sharing this writing with them.  

If you don't have time for that, then go for a link list ... something like a Top Ten list, ten great sources of inspiration when you're dieting; ten great recipe sites; ten great med mal blogs, whatever.  That's pretty fast blogging and it's giving your reader more of you than one of these "lookie" posts does. 

Using Media Content on Your Blog or Web Site: First, Just Ask Permission.

You want to use content from a news article or television station's web site in your blog post - this could cover many things.  For lawyers, news coverage about big victories in the courtroom usually means a desire to place that coverage on their bio page at the law firm's web site.  The 21st Century's version of an Ego Wall.

However, as I've discussed here before on more than one occasion, if a lawyer pulls that story or that video and puts it on the firm's website willy-nilly, then copyright infringement may occur.  Those media stories (including photos and videos and audio interviews) are all the copyrighted work of these media outlets and should be respected.

What to do?  First things first, just ask.  Call or email the media source (this is really easy if you have the contact information of the reporter who just did your interview) and ask permission.  Alternatively, surf their site for words like "reprint" or "permission" and you will find things like this:

San Antonio Express News
Dallas Morning News
Houston Chronicle
The Associated Press.

Will you have to pay?  Maybe.  It's called a "licensing fee."  Balance that cost against dealing with a cease and desist letter (if you get one, Righthaven never bothered) or a claim for copyright infringement by the media's IP litigators. 

U.S. Supreme Court Throws Public Domain Under the Bus: Copyrights Can Be Applied to Longstanding Public Domain Works Under Berne Convention

In the often-confusing area of copyright, there was one bright line: works that had entered the public domain.  Find an image or a quote within the public domain and you never got to the question of copyright:  are you infringing?  is your work fair use?  It was black and white, night and day: once a work entered the public domain, there were no copyrights to respect - the copyrights had evaporated, and the works were free for anyone to use at any time.  Sweet. 

Until now, because that bright line just got fuzzy.  The United States Supreme Court has just ruled that Congress can take works in the public domain and slap them with a copyright.  Again.  This is true even if the work has been floating around in the public domain for years and years. 

Golan v Holder

Read the full opinion in Cause No. 10-545 before the United States Supreme Court, Golan et al v. Holder, -- U.S. -- (2012) here.  It's a six to two decision; Ginsburg writes for the majority; Breyer and Alito dissent; Kagan recused herself. 

Berne Convention Implementation Act of 1988

Why?  Seems the High Court believes that the United States of America must comply with a trade agreement entered into at The Convention for the Protection of Literary and Artistic Works, and signed at Berne, Switzerland on September 9, 1886.  You can read that treaty online here. 

That's because Congress already passed a federal law (the Berne Convention Implementation Act of 1988), stating that the United States must comply with "all acts, protocols, and revisions" of the  Berne Convention.  The Uruguay Round Agreements Act of 1984 amends 17 U.S.C. 104A, 109(b), and adds chapter 11 to title 17 and section 2319(a) to title 18. 

If you check the deal that is known as "the Berne Convention,"  you will find an agreement (treaty) between several nations around the world, copyrights are to be respected as long as a copyright legally exists in any of the countries that are signatories to the Berne Convention.

Read the list of countries that have signed the Berne Convention here.  Right now, there are 165 nations participating in the treaty.   

Which means that work you may have used legally on your blog - say, an excerpt from something written by Tolkein - may no longer be free for your use as public domain and now, subject to copyright.  

Cut and Pasting From the Web: Be Careful.

Last week, another client was happily posting away on their blog and proud of their word count.  Which was good.  However, most of that word count involved cutting and pasting from other web sites.  Not so good.

First of all, it's fine to share news releases.  They are written to be distributed -- the intent of that release is to get that message out.  So, sharing these cuts and paste excerpts in a blog post with an intro "news from Acme site this week" is not a bad, horrible (and by that I mean illegal) thing to do.

Second, it's fine to share information provided on government sites, for example in their "frequently asked questions" section.  Intro the cut and paste excerpt with something like "the [name of agency] recommends the following" and you're fine. 

Third, it's okay to share your own stuff.  Excerpts from your firm website in a firm blog post isn't violating anything.  Example:  the post is discussing a major product recall and you provide an excerpt from the site that discusses your state's products liability law. 

Here's where it's not okay.  It is not okay to take content from other sites - especially news sites - and cut and paste them into your blog post, wham bam.  My client, excited about coverage in the media, plugged media coverage into the blog without getting any okay from the media source.

Not to mention not checking with the news source to determine how much they wanted in payment for the use of their news story.  And its photos. 

Luckily, that post was not published online before someone checked with me and I pointed out that this was copyright infringement of the copyright held by the media source. 

Newspapers and television news departments publish news with photos and videos online because that is how they generate revenue.  They will share that content and those images with you, but they may want payment for the use.  Maybe it's a lot.  Maybe it's a little.

Point is: news stories and television videos - even if you are prominently a part of the story - should not be duplicated on your web site or blog without the permission of the copyright owner. 

Sure, you may think I am nit-picking.  After all, aren't you helping that news source by publicizing its work?  Sorry, but I don't know that the owner of the copyright will agree with that argument.  And, after all, isn't the story all about you and your victorious win, so don't you have some sort of indirect ownership right in the news article anyway?  No.  No you don't.     

Go ahead if you want to risk it.  Lots of sites do this, true.  However, now that NewsRight is out of the box, my nit-picking today may seem prophetical tomorrow.

Better safe than sorry, folks.  Plus, it's the right thing to do.  Don't just plug those news articles into a blog post, even if you or your firm is the star of the story. 

NewsRight: Has Main Stream Media Found a Bigger and Better Righthaven Model? Many Think So. Bloggers, Beware.

This past month, concern has grown over NewsRight, which has many of Main Stream Media's biggest companies (Associated Press is its shareholder, others include the New York Times), working together in their fight to stop various web sites (bloggers, news aggregators) from profiting off their words.

You'll remember my post from long ago, where AP was wanting to be paid per word for its content.  If you quoted - or cut and pasted - over five words from one of its stories, AP expected to be paid. Five words, fork over $12.50.  

That didn't work, apparently.  And now, these MSM folk have banded together to form NewsRight.  You can read what they want you to know about this new venture on their website.

Meanwhile, consider what others are thinking. 

MediaPost hat tips to Righthaven as it discusses NewsRight as an attempt to stop "scrapping" of news stories by web sites. Techdirt considers NewsRight to be "Righthaven Lite," since they don't appear to be as sue-happy as Righthaven was (Righthaven would sue without any advance cease and desist notice).   At least one media law professor seems to agree - we won't see lots of lawsuits being filed (yet). 
 
And, for an different perspective, consider Nieman Labs optimistic take on things:  NewsRight is a good thing.  Really.  

Can Bloggers Be Protected Like Traditional Journalists Via State Shield Laws? Recent Court Rulings Say No.

While we were all enjoying the holiday season from Thanksgiving to the New Year, another opinion came down regarding defamation suits against bloggers that bloggers everywhere may be interested in reading.  It's the third case of which I'm aware where state shield laws are used as a defense by bloggers sued by defamation: Oregon isn't as blogger-friendly as New Jersey or California.

Oregon Shield Law - No to Bloggers

The latest ruling is an opinion that came down from a federal trial judge presiding over a defamation case filed against an blogger up in Oregon, and it’s an opinion issued right before trial began against blogger Crystal Cox.

Read the Oregon federal judge’s ruling here.

In the Oregon case, U.S. District Judge Marco Hernandez heard Cox’s argument that as an “investigative blogger” she was protected by the state’s shield law from revealing her sources to requests for their identity from plaintiff Obsidian Finance Group.  Cox’s claims had a confidential informant as the cornerstone of her claims which she published on her blog.

Judge Hernandez ruled against Cox.  His rationale?  Shield law is limited in its application to “traditional media” and blogging isn’t traditional media. 

Cox, he opined, had no traditional education in journalism.  She had no street creds from a “recognized news entity.” 

Result:  the crusading blogger risks a huge defamation judgment against her to the tune of $ 2.5 million.

New Jersey Shield Law - Maybe to Bloggers

If you’re following this stuff, this opinion may sound familiar.  There was a similar stance taken by the Supreme Court of New Jersey regarding their state’s shield law and online forum posts by another “investigative blogger.” 

Read the New Jersey Supreme Court opinion regarding bloggers and their state shield law here.
In the New Jersey case, Washington State resident Shellee Hale argued that she investigates and reports on corruption in the online adult entertainment industry, although admittedly she is not a traditional journalist (no journalism degree, no connection to a “recognized news entity”). 

Hale was sued by Too Much Media, LLC, a company that makes “adult entertainment” related software, for defamation and false light for comments about the company that she posted online in a forum.  Hale argued she was protected by the New Jersey Shield Law and lost - although the opinion was a victory for bloggers, overall.  (To read her posts as well as the lengthy opinion giving four bases for its decision, go to the opinion itself.)

The New Jersey Supreme Court’s rationale?  From the opinion:

New Jersey's Shield Law provides broad protection to the news media and is not limited to traditional news outlets like newspapers and magazines. But to ensure that the privilege does not apply to every self-appointed newsperson, the Legislature requires that other means of disseminating news be "similar" to traditional news sources to qualify for the law's coverage. We do not find that online message boards are similar to the types of news entities listed in the statute, and do not believe that the Legislature intended to provide an absolute privilege in defamation cases to people who post comments on message boards.

California Shield Law - Maybe to Bloggers

Meanwhile, the California courts have also ruled on the application of shield laws to the publications of bloggers.  In O'Grady v. Superior Court, a California appellate court ruled several years ago that its state shield law could encompass the work of non-traditional journalists, or citizen bloggers.

From O'Grady: 

We decline the implicit invitation to embroil ourselves in questions of what constitutes "legitimate journalis[m]." The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish "legitimate" from "illegitimate" news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

Here’s something to think about:  if Cox had been interviewed on television, or by a “traditional journalist” for a  printed publication with an online presence that is a “recognized news entity” and told her tale – would her confidential source be protected by the shield law?  I think so.

Righthaven RIP: Assets Being Seized, Rumors of Righthaven Bankruptcy Roam the Web

Righthaven's going down, and going down fast:  today the news is that creditors are seizing assets of Righthaven, Inc. - the company that struck fear into many a blogger's heart as it filed copyright infringement lawsuits throughout Nevada and other states (South Carolina, Colorado) without so much as a cease and desist notice letter.

Righthaven is reported to be considering bankruptcy even as I type this. 

There's more.  Attorney Todd Kincannon is reportedly mounting a class action lawsuit against Righthaven, Inc. If you believe that you may have been harmed by the actions of Righthaven, Inc., then Mr. Kincannon wants to chat with you.

What did Righthaven do?  It bought the copyrights from various media sites and then sued websites and blogs for violation of federal copyright laws  (see my July 2010 post for details, "Profiting from Copyright Infringement - New Vegas Company Sues Bloggers After Buying Media Copyrights.")

What happened next?  After over 250 of these suits were filed (some reports are that they've filed over 275 cases), federal judges started acting.  The suits were blown out of court for things like standing problems.  (See, "Righthaven's Days May Be Numbered: Federal Judges Are Ruling Against Standing and More.")

And, Righthaven started losing cases.  In the asset seizure making news now, Righthaven defendant Wayne Hoehn is seeking to enforce a federal court order that orders Righthaven to pay Mr. Hoehn $34,000 as reimbursement of the legal fees that he had to pay to defend himself against their copyright lawsuit.

Righthaven whined to the federal judge, the Honorable Philip Pro of the United States District Court for the District of Nevada, asking him to stay the award because having to pay Mr. Hoehn right now might force Righthaven into bankruptcy.  Judge Pro was not swayed; the order stands.

So, right now, federal marshalls will be executing on Righthaven assets to meet that $34,000 award and Righthaven may be filing a bankruptcy petition (where the automatic stay might temporarily stop the marshalls).

For all things Righthaven, check out the excellent website that is monitoring all this:  RighthavenLawsuits.

Does this mean no more copyright infringement suits?  I doubt it.  I don't know that "copyright trolls" will have a big future - but those that own the copyrights are free to sue for federal copyright law violations.  Righthaven was acting as a middleman, in a way: buying those rights and then suing based upon them.

Take out Righthaven, what have you got?  No more middleman.  If it is cost-effective to sue for copyright violations, then owners will do so.  Maybe Righthaven's aftermath will be that they will be more inclined to file.

Righthaven's Days May Be Numbered: Federal Judges Are Ruling Against Standing and More

More than one federal district judge appears to have had enough with Righthaven's strategy of buying copyrights from various media sources (usually in Nevada) and then suing for copyright infringement under federal law without so much as a form cease and desist letter.  (For details on the Righthaven plan of action and its early success, read my prior posts on the subject.)

The worm turns.

Federal judges setting in more than one state don't seem to think that Righthaven is doing the right thing, apparently.  Standing has been found wanting.  Fair use has been found.  Copyright has been determined not to be at issue in the first place.

For a nice recap of these various court opinions, read David Kravets' article in Wired's June 20, 2011 issue, "Righthaven Loss: Judge Rules Reposting Entire Article Is Fair Use."

Today's news: Righthaven isn't paying attorneys' fees.

This morning, TechDirt reports that Righthaven is avoiding paying around $3000 in attorneys' fees to a defendant even though it's been ordered to do so by a federal judge.  The company has asked the court for a 30 day stay ... doesn't sound smart, but we'll see what happens.

Update on Mass Vegas Copyright Litigation from Winston & Strawn

Winston & Strawn has been monitoring a Las Vegas company I wrote about a couple of months back -- the corporation that bought copyrights from various Nevada news media and began suing websites and blogs, personal and commercial, who had cut and pasted copy from the news articles into their own sites.  Suing in federal court for violations of the Copyright Act. 

The company -- Righthaven -- got lots of media attention as it filed suit after suit, oftentimes against nonprofits and such.  Political affiliations and hidden agendas were questioned.  Biggest issue: Righthaven was doing this without bothering to first send a cease and desist.  (Rambo lives.)

Winston is now reporting that Righthaven's days may be numbered.  One judge has decided, according to Winston's "special alert" that fair use applies.  Righthaven loses, although the winning defendant may have had to pay lotsa legal fees to defend itself and may find the victory bittersweet. 
For more, check out what Winston has for you.

Fair Use of Another's Copyrighted Work is Defined in Section 107 of the US Copyright Act (17 USC 101 - 810)

The United States Copyright Office provides some guidance regarding the fair use doctrine, as do other sites including Cornell University's LII - Wex and UCLA's Library. 

What is the Fair Use Doctrine?

In sum, it is a fair use of another's copyrighted work if you are using the work in order to provide criticism, in commentary, as part of news reporting, as part of teaching, in some form of scholarship, or in a research endeavor.

If there is litigation, courts are instructed to determine if the use is fair by applying a balancing test made up of several factors.  

Is Your Use a Fair Use?
The obvious place to start when considering whether or not your intended use of another's work comes within the fair use doctrine is to read the statutory definition itself.  According to the US Copyright Act, fair use is:

§ 107. Limitations on exclusive rights: Fair use


Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —
 (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;


(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Two Things of Note After Reading the Fair Use Doctrine's Statutory Definition

1.  Notice that the statute does not give any set number of words that can be used before there is copyright infringement. There isn't one.

2.  Also, notice that if you give the hyperlink before the cut and paste of another's work, that's not addressed here. Attribution may help regarding a plagarism claim, but it's not going to be a solid defense against copyright infringement.

As lawyers and law firm write blogs and content for web sites, they may feel comfortable making their own legal call on whether or not their work falls within the fair use doctrine. Non-lawyers should seek legal guidance from an attorney to be on the safe side.

Profiting from Copyright Infringement - New Vegas Company Sues Bloggers After Buying Media Copyrights

Beware. A new company based in Las Vegas thinks it's found the mother lode in media copyrights and the protections provided by federal law under the Copyright Act.

And after testing out their business model in Las Vegas, suing bloggers and website owners for unauthorized cut and pasting of work found in the Las Vegas Review-Journal, they're aiming for bigger game. National game.

Righthaven, which has only been in existence since March 2010, is busy every day apparently, surfing the web to find blogs and web sites where their news media clients' writing has been published, without permission.

According to Free Republic, they're busy suing without any advance notice (the proverbial "cease and desist" notice) and they're suing nonprofits like Ecological Internet.

Fair use?

Remember my earlier post -- I've already opined that the traditional media is really, really, really trying to limit (and by limit, I mean destroy) the fair use doctrine because of the crushing financial blow print media has felt from online publication.  

And, even if fair use is a valid defense to the allegation of copyright infringement in a courtroom, these actions will force bloggers and web site owners to hire attorneys and undertake the legal expense of proving their innocence in a court of law. 

Which maybe they can and cannot do -- it may be cheaper to settle than to fight for right.  Another common defense tactic, force the plaintiff to spend itself into submission, but this time a basic right -- fair use -- is at stake. 

Scary stuff, folks.

Lawyer Writer News Flash: AP May Not Believe in Fair Use - They Want Payment for Excerpts Over 4 Words Long

This has been up for awhile over at the Associated Press site, but I think most folk are either ignorant of this fee schedule, or they're just blatantly ignoring it.

Me, I think it's stupid. AP wants you to pay for ANY excerpt of any of their content that you use on your blog. That's right. Quote as little as FIVE (5) words, and AP wants you to pay them $12.50.

Are we being punked? No. Apparently the AP is serious. Stupid, but serious.

And rather than rant, I refer you to the article written by Derek Bambauer for the Harvard University blog, Info/Law.

They are so ... well, polite. They call it "overreaching."

Stupid, overreaching. Po-tay-to, Po-tah-to.

Lawyer Writer News Flash: Fair Use Doctrine & Excerpts on the Web: What's the Rule Now?

The New York Times has a nice, lengthy article dealing with something that's important for bloggers and web writers everywhere: when is the "fair use" doctrine protection against a challenge that you've violated someone's rights by using excerpts from their column/magazine/newspaper/book/etc.?

Apparently, that standard 4-part test we've all relied upon for years now to determine "fair use" is being challenged by those who are upset about some things.

And by some things, of course, I mean advertising dollars.

This is a big deal and getting bigger, and you need to read this article.