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:

.

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.  

.

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. 

.

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. 

.

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.  

.

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.

Trademarks and Copyrights for Writers

Most writers know that they have legal rights to their work that are recognized by federal copyright laws.  Writers may not be aware how important trademark protections are for their work.  

This movie poster promoting "Her Husband's Trademark," is no longer protected by
federal copyright laws and is in the public domain. 

Copyright Law Protect Writers

Many writers understand that “copyright” is not a single, solitary right of ownership but instead there are several kinds of rights that can be sold by the writer to publishers in exchange for payment. Traditionally, selling copyrights has been how fiction writers have made their living.

Examples of copyrights include:

1. First Rights -  the publisher is given the right by the writer to be the first one to publish his or her work (article, short story, etc.)  in print media or digital publication.
2. First Electronic Rights -  the publisher is given the right by the writer to be the first one to publish his or her work (article, short story, etc.)  in an electronic publication only. 
3. First Web Rights - electronic rights are not identical to web rights.  An electronic publication is a form of storage that holds the work in electronic form.  Electronic rights may or may not include web rights (aka Internet rights), which is the right to public the work online.   
4. All Rights - every copyright that the writer has to his or her work (article, book, etc.).  Once this is transferred, the writer has no further connection with the work because that’s all been transferred to the buyer of the copyrights.  This is the exact opposite of a writer who writes under a work for hire contract.  In a work for hire situation, the writer is considered an employee of the publisher who is paid a fee for the work that he or she does, and all copyrights to that work product is “work made for hire” and the employee has no copyright ownership of it, that belongs to the employer who hired them to do the work.  Work for Hire means "no rights." 

Trademarks Are Different Than Copyrights

Legally, copyrights can be complicated and if writers aren’t careful, they can get manipulated by publishers into selling more than they intended and making less than they should for the work they have created.  It’s a necessary headache for many writers, this need to understand their legal copyright protections.

Added to that burden is the need to know what trademarks are and when writers may need to have trademark protections as well.  Trademark law exists to protect writers from "trademark infringement" just as copyright law protects them from "copyright infringement."

There’s a big difference between copyrights and trademarks.  Both are protected rights under federal law but they aren’t the same thing.   Moreover, it’s harder to get a trademark than a copyright even though there are situations where the trademark may end up even more vital to the writer than protecting their original copyright.  Trademarks, unlike copyrights, are not automatically created under the law for the protection of the creator / writer.

Warning for the Author and Indie Publisher of a Series of Novels 

This is particularly true of writers who decide to avoid the traditional publishing route, opting to publish their own work independently and acting as their own publishing company.  If a romance novelist, for instance, decides to write a series of Scottish Highlander Paranormal Romances and publish them on Amazon for Kindle, then that novelist and indie publisher may well need to consider trademark protections for their new romance series.

Why?  While the stories in each book within their series will have copyright protection, the following may need trademark protection:

• The Series Title (as a tool being used to market the collection of books);
• The Name of the Protagonist (if the entire series is dependent upon this one name or character); 
• The Name of the Setting (if the entire series is dependent upon this locale); and 
• The Name of the Indie Publishing Company (as a tool being used to market the collection of books).

Trademark Infringement: Consider Fan Fiction 

Federal trademark protection is based in a 1946 federal law known as The Lanham Act (aka the Trademark Act of 1946).  In this cornerstone statute, a trademark in the United States is defined as "… any word, term, name, symbol, or device, or any combination thereof" used in commerce to identify a service or good.

This means that a character’s name; as well as a fictional town where a cozy mystery series is set, for example; or the particular type of alien that appears in a science fiction work,  may be used to “identify” the series and therefore worthy of federal trademark protection.  Legally, there has to be a “distinctive source identifier” between the name, setting, or world-creation that can be shown to connect the readers immediately with the series itself.

This can be a big issue in fan fiction, for instance, where new stories are being written but use of the original work’s characters or setting results in infringement of the author’s trademarks.

The fanfiction writer’s defense?  Fair use doctrine (but this is getting way too complicated for a short blog post).

The bottom line here:  writers who are publishing their stuff  (particularly a series) need to know about trademark infringement and protecting against it just like they need to know about copyrights.  

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.”
.

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.

.

.

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.

Copyright Infringement and Breach of Contract: the Tess Gerritsen Lesson

Tess Gerritsen has a couple of very interesting blog posts discussing her fight over what's hers regarding the movie Gravity.  (You may recognize Gerritsen more for her work as the author of the Rizzoli and Isles' mystery / thriller series.)

Read Garritsen's posts here - they are worth your time, Dear Reader:

• My GRAVITY lawsuit and How It Affects Every Writer Who Sells to Hollywood; and
• The Difference Between "Breach of Contract" and "Copyright Infringement".

Author's Breach of Contract Case Dismissed

The federal judge dismissed author Tess Gerritsen's case against Warner Brothers last week, but the dismissal is without prejudice to refiling.  Variety has an overview of what's just happened in the California breach of contract case.

I'm expecting Gerritsen to come back again; she's not writing from a position of defeat here.  She's lost a big battle, but she hasn't lost the war.

Contract Claims vs. Copyright Violations for Writers

Gerritsen sold rights to her story in a written contract.  When she believed that the contract had not been honored, she sued for breach of that contract.

The decision (assuming a new filing) will be based upon how the court reads the provisions of that deal as they jive with state law.  Part of her continued fight will be the legal connections between two corporations and what was transferred between them.

The rights themselves are her legal rights to the work she created.  The United States Copyright Office provides a nice summary.  These are protected by federal copyright law.

Here's something that I want to clarify, Dear Reader, after chattering about what was happening to Tess Gerritsen got a bit confusing in a conversation I had with a friend yesterday.

1.  You don't own a single "copyright" to your work.  There are several rights that make up "copyright law" and when those rights are violated, a federal claim for "copyright infringement" can arise.

2.  You can sell one or more of these rights for money.  That's how writers get published, of course.

Here's one thing I want to make clear to my friend and to you, Dear Reader: what exactly you are selling to the buyer needs to be clearly understood by both parties and made clear in your written agreement.  The contract will cover the rights that are described within it.

Here are some examples of copyrights:

• First North American Serial Rights (FNASR)
• First Print Rights
• First Electronic Rights
• Exclusive Rights
• Excerpt Rights

3.  It is possible for someone to take your work and use it after you've made a deal with them (i.e., a written agreement) and be liable to you both for breach of contract (for the rights sold in the agreement) as well as violation of federal copyright laws (for infringing on your rights that were NOT included in the contract).

Much good luck to Tess Gerritsen in her breach of contract fight.  

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.

Cool Public Domain Images: Free Photographs of Golden Age Movie Stars on Wikimedia Commons (Publicity Stills)

Images are becoming more and more important for websites and blogs, given the growing popularity of Pinterest and Google+, among other social media sites.  Finding quality photographs to accompany your words isn't hard to do on the web; however, tracking down great images in the public domain is not as easy.

You want public domain images because they are free to use.  Images (photos, infographics, clip art, etc.) are protected by copyright laws and they are not free for your use in your blog post or on your web page unless the creator has released their copyright, or the copyright protections do not apply for some reason.

For instance, federal government images are not protected by copyright and you are free to use images found at sites like NASA and the CDC.  

Publicity Stills: Another Source of Public Domain Images

Another great find for public domain images:  publicity stills that are in the public domain.  Like Fred Astaire dancing in promotion of the film "Daddy Long Legs" above, of the image below of Elvis Presley promoting "Jailhouse Rock."

Granted, both of these images are of stars dancing but maybe I'm in a dancing mood this morning - it's the first working day of 2014 and I'm excited about this year!  However, you can find lots of other great photographs to choose from by going to Wikimedia Commons and searching for "film stills"  or "publicity photos."  Lots to choose from - with famous faces and people doing things other than dancing.

These Hollywood Golden Era movie stills are free from copyright protection and in the public domain because they were published in the United States between 1923 and 1963 and any copyright was not renewed.  However, publicity stills by definition are generated for publicity and many, like news releases, are disseminated for widespread use with a release of copyright in order to promote an actor or a movie or a TV show.

You need to check before using newer images, however.  For details on more recent imagery, visit CreativeClearance.  Newer film stills may retain their copyright and you'll need to pay for their use in your publication (and a blog is an online publication).

From Wikimedia Commons:

As explained by Additional source information: This is a publicity photo taken to promote a film actor. As stated by film production expert Eve Light Honathaner in The Complete Film Production Handbook, (Focal Press, 2001 p. 211.):  "Publicity photos (star headshots) have traditionally not been copyrighted. Since they are disseminated to the public, they are generally considered public domain, and therefore clearance by the studio that produced them is not necessary."

Copyright Infringement of Recipes: Elizabeth Warren, Pow Wow Chow, and me.

Over the past week, I’ve been reading about Elizabeth Warren, currently a candidate in Massachusetts for the United States Senate and former head of the Consumer Financial Protection Bureau and apparently, NOT an American Indian.

I remember Elizabeth Warren as my law school professor at UT-Austin, long ago: she taught me one-half of the two semester long UCC course. Can’t remember which one.

I do remember visiting with Elizabeth Warren in her office several times; she and I shared the unique (masochistic?) resume builder of driving 3 hours a day to attend law school (me, back and forth from San Antonio to Austin in a refurbished 68 VW Bug; I can’t remember what she drove, but I do remember it was some place with lots of snow in the winter). 

I do not remember any American Indian references then; I have no recollection of tribal artifacts in her small office, nor do I remember anyone at UT thinking of Elizabeth Warren as a “woman of color.”  I thought we were two blonde, blue-eyed women sharing the difficulties of commuting to a top law school while being married and living on a shoestring budget.  She had me beat: she did one year of her commute while pregnant. 

I admired her then.  Now, I wonder how much that young, scared, law student believed was true and what may have been stretched.  Especially after reading the Wikipedia bio.  But I digress. 

Of course, no one really references her time in Austin, because why would they if she moved on to Harvard.  Yeah, I know. 

Somewhere between then and now it seems that Elizabeth Warren acknowledged an American Indian Heritage and with it, apparently, the desire to contribute to an American Indian cookbook entitled “Pow Wow Chow.”

What a name.  I cannot wait for Saturday Night Live on this one. 

Okay, here’s my point.  Elizabeth Warren is being accused of copyright infringement of RECIPES if not downright plagiarism because she submitted several recipes for publication as her own, and which were published in Pow Wow Chow – but seem to have an eerie similarity to some pretty high-falutin’ recipe sources. 

And by “eerie similarity” I mean they look exactly the same.  But you knew that.

Recipe Copyright Infringement and Plagiarism Claims Are Tricky

There are just so many ways you can cook some things, and the U.S. Copyright Office recognizes this.  You don’t violate a recipe copyright by listing ingredients for a dish, or by itemizing how those ingredients are to be put together and cooked into a finished product. 

You violate a recipe copyright by grabbing up the actual language used in the recipe as your own.  The description, the know-how stuff, that goes into the recipe along with the ingredients list and the amount of time it needs to bake at 350 degrees. 

It’s a hard case to prove, sure.  But recipe copyright infringement claims are real. 

• Remember the lawsuit filed against Jerry Seinfeld’s wife over her cookbook with recipes on how to get kids to eat their veggies (key – hide them with other stuff kids like)? 
• Or the Food Network show that got cancelled after its recipes were said to be plagarism of icons like Ina Garten and Martha Stewart?

Did Elizabeth Warren infringe on copyrights?  That’s a legal issue but consider this:  she apparently took three recipes verbatim from the New York Times and allowed them to appear as her own, under her byline as a Cherokee, in the Pow Wow Cookbook. 

Read the details here.
 
As for the claim to be an American Indian, I leave the commentary on that infringement to an American Indian, who wrote this open letter to Elizabeth Warren on the blog Polly’s Granddaughter, which I discovered while reading Michael Graham’s piece in the Boston Herald this week.

Follow the Lawsuits Being Filed Against Web Sites, Bloggers for Copyright Infringement by Nevada's Righthaven

I've posted in the past about Righthaven, and how they are building up quite a business by buying copyrights and then suing (without notice or cease and desist letters) for violations of federal copyright laws.  Go here to read about them.

Recently, I discovered a website that is tracking Righthaven's activities.  RighthavenLawsuits is not affiliated in any way with the company that has become a professional plaintiff.  Here, from the RighthavenLawsuits site:

This website is dedicated to gathering together and posting for Righthaven Defendants and the public information about Righthaven LLC -- the Las Vegas “technology company”that has been filing copyright infringement lawsuits in the U.S. District Court for the District of Nevada (and South Carolina and Colorado) against numerous unsuspecting website owners (almost always without notice) for copyright infringement of news articles originally published in the Las Vegas Review Journal (and Denver Post) and purportedly assigned to Righthaven (sample assignment here) which subsequently registers the copyright to such articles with the U.S. Copyright Office in order to then file suit in federal court.

This web site appears to be current and comprehensive.  Interesting to me: since my post in July 2010, the company has expanded its activity into South Carolina and Colorado.  What will happen next?  Will Righthaven's tenticles creep into other states - or will other companies pop up in these other states as direct competitors to Righthaven?  Money talks, you know.

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.

Are Westlaw and Lexis Violating Lawyer Copyrights By Publishing Legal Briefs and Memoranda In Their Databases? New York Lawsuit Filed for Damages Under U.S. Copyright Law

Well, this seems silly.  As a lawyer, whenever I filed something in the public record of a court case - and I did this for over 20 years - never once did I think WAIT, I better make sure I've protected my copyright on this thing.   I mean really.

However, two lawyers up in New York are suing both West Publishing Company and LexisNexis for having the audacity of taking documents like briefs and legal memoranda, copying them, and placing them on their databases.  That's right.  The lawyers are arguing that they are due actual and punitive damages for a violation of federal copyright laws because West and Lexis have digitally collected and sold these public records to their clients.

Oh my, oh my.

The lawsuit isn't new.  It was filed as White v. West Publishing Company & Reed Elsevier Inc. in the Southern District of New York back on February 22, 2012.  You can read the complaint here.

UCLA Law Professor Eugene Volokh wasted no time in writing about this, and his blog post is worth your time to read.  

From Professor Volokh's perspective, the issue here isn't the existence of a copyright -- he argues that the briefs are copyrighted material of the lawyers who wrote them (or maybe the law firm, or maybe the client, too - but this is a rabbit trail and Prof. V argues work for hire doesn't extend this far) -- it's the question of whether or not the fair use doctrine will apply here to allow the two big legal research companies the ability to share these briefs for their own profit under the fair use defense to copyright infringement under federal law.

Meanwhile, up in Canada there's another case dealing with a similar issue of copyright violation of lawyers whose briefs have been copied and then placed into legal software databases and it's been certified as a class action.  More on that case here.  

Another law professor shares his take on things over at the Law Librarian Blog; it comforted me to read that he thought this to be a little silly, too. 

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.  

Public Domain Infographics: Where to Find Free and Informative Graphics for Your Web Site or Blog

Infographics are hot these days, and for good reason.  A good infographic ("informative graphic") is more than just an image, a piece of clip art, or a photo: it's a tool that educates, even entertains, the reader.

Infographics are Copyright Protected - Unless They're Not

Thing is: there are lots of infographics out there on the web that are great, but their creators haven't released the copyright to their work.  Use those infographics on your site or blog without the creator's okay (and fee) at your own risk of an infringement claim -- or at the very least, the embarrassment of receiving and having to respond to a cease and desist letter.

Two options for you if you don't want to pay for the design: build your own infographic (it's pretty easy and can be free) or find a public domain infographic on the internet to use.

For how to build your own infographics, check our my earlier post.

Finding Public Domain Infographics

For locating free public domain infographics, think of places on the web where they have no expectation of copyright.  Like .gov sites - the government's infographics aren't protected by copyright and often government sites are publishing infographics in the hope that you will share them with your readers.

Hint:  Go to Google Images and type in a search phrase related to your subject matter, including the word "infographic."  Next, search through the results for infographics appearing on .gov web sites; go to the site itself and confirm that it is an image within the public domain.  Eureka! You've found your public domain infographic.

Another suggestion: sites where the creator has released his or her copyright in order to promote their work.  (Wikimedia Commons is a good place to find public domain images but not so much public domain infographics at this point.)  This may be a graphics design site, or an individual artist's portfolio page.

Here, it may be in the public domain or you may need to credit the infographic to the creator and perhaps provide a link to their site, but they won't be asking you for payment.  The best bet is to find an infographic that fits your needs and email the creator asking if he or she is willing to have you publish their work on your site at no charge if you give them credit / linkage.

For a few public domain infographic sources, check out:

1. Department of Homeland Security (often provided with news releases)
2. Centers for Disease Control  (search among the various issues for infographics)
3. U.S. Census Bureau
4. NASA
5. Office of the Governor of your state (often provided with news releases or with blog posts).

Here is an example of a federal infographic that accompanied news of a Homeland Security financial felony bust in New York where the grand jury came back with indictments:

Prenda Law Facing Federal Sanctions as Pirated Porn Copyright Infringement Practice Blows Up in a Big Way

Prenda Law, have you heard about them yet?  After three different clients asked me if I had heard about Prenda Law and was this the same as Righthaven, I thought I'd corral some information here in one post with lots of links to more detailed coverage in various other posts and news coverage.  And there's a court case or two to follow, as well, if you'd like.

Prenda Law: a Law Firm Targeting a Specific Niche

Prenda Law is a boutique law firm based in Chicago that in a manner akin to Righthaven has sought to dig for gold in federal copyright infringement law; however, unlike Righthaven, Prenda Law has much more of a TMZ twist to things.

There's porn involved.

That's right: pornography; specifically, pornography copyright rights.

Seems this group of lawyers got the idea of going after copyright infringement cases by filing federal lawsuits based upon federal copyright laws seeking damages from those defendants who downloaded porn from websites illegally.

Pirated Porn as a practice area.

Initially, the law firm had to file complaints with "John Does" as defendants until they could get federal court subpoenas to obtain names from the Internet Service Providers of their porn-downloading clients.  The Internet companies were asked to open their files, reveal the names associated with specific IP addresses whose download histories showed the computer at that address had grabbed  porn from sites without permission or payment.

The problem is that Prenda Law doesn't seem to have real live clients in all this.  

Prenda Law's clients seem to be lacking substance: what will Judge Wright do?

Federal Judges Not So Happy With Prenda Law's Plan

Defendants and ISPs in these cases didn't set idly by, and things exploded earlier this month when a federal judge set a show cause hearing for sanctions against Prenda Law asking that the defendants show cause why they shouldn't be sanctioned by the federal court for filing sham pleadings.

Elsewhere in the country, two men have challenged Prenda Law so far, alleging that they never gave their permission for their names to be used in these lawsuits and as a result, the law firm has committed identity theft.  In Florida, a Prenda Law case was dismissed by a federal judge after no one could point to lawyer and client in the courtroom (link to that hearing transcript shown below).

(After reading that transcript, am I the only one thinking of Chinatown and "she's my daughter ... she's my sister" here?)

Prenda Law faced off with U.S. District Court Judge Otis Wright in a Los Angeles courtroom earlier this month; it wasn't pretty -- and lots of lawyers all over the country are talking about what happened in that courtroom back on March 11 - and what will happen when that show cause hearing resumes on April 2, 2013.

April 2013 Order to Show Cause - Federal Judge Gets Specific

Here is what Judge Wright has ordered for the April hearing (excerpted from the order as signed by the Judge):

Thus, the Court amends its February 7, 2013 Order to Show Cause (ECF No. 48) to include sanctions against the persons and entities in subparagraphs a–m below:

a) John Steele, of Steele Hansmeier PLLC, Prenda Law, Inc., and/or Livewire Holdings LLC;
b) Paul Hansmeier, of Steele Hansmeier PLLC and/or Livewire Holdings LLC;
c) Paul Duffy, of Prenda Law, Inc.;
d) Angela Van Den Hemel, of Prenda Law, Inc.;
e) Mark Lutz, of Prenda Law, Inc., AF Holdings LLC and/or Ingenuity 13 LLC;
f) Alan Cooper, of AF Holdings LLC;
g) Peter Hansemeier, of 6881 Forensics, LLC;
h) Prenda Law, Inc.;
i) Livewire Holdings LLC;
j) Steele Hansmeier PLLC;
k) AF Holdings LLC;
l) Ingenuity 13 LLC; and
m) 6881 Forensics, LLC.
These persons and entities are ORDERED to appear on March 29, 2013, at 10:30 a.m., TO SHOW CAUSE for the following:
1) Why they should not be sanctioned for their participation, direction, and execution of the acts described in the Court’s February 7, 2013 Order to Show Cause;
2) Why they should not be sanctioned for failing to notify the Court of all parties that have a financial interest in the outcome of litigation;
3) Why they should not be sanctioned for defrauding the Court by misrepresenting the nature and relationship of the individuals and entities in subparagraphs a–m above;
4) Why John Steele and Paul Hansmeier should not be sanctioned for failing to make a pro hac vice appearance before the Court, given their involvement as “senior attorneys” in the cases; and
5) Why the individuals in subparagraphs a–g above should not be sanctioned for contravening the Court’s March 5, 2013 Order (ECF No. 66) and failing to appear on March 11, 2013.

For more: 

1. read the transcript of an earlier Florida judge dismissing a similar case filed by Prenda Law which we can assume that Judge Wright has read -- and one which TechDirt describes as worthy of a movie script.
2. read Popehat's continuing summary of events here (Ken of Popehat was present in the California courtroom on March 11). 
3. read ArsTechnica's continuing coverage of things here: it's good, too.

Image:  Wikimedia Commons, public domain

Legal Stuff

This is boring legal stuff that applies both to my RebaKennedy.com web site as well as this blog.  Just so you know ….

.

It’s All Me.

.

I own both this web site and blog and I am the only person who contributes to them.  If you visit or shop here (should I ever sell anything here, haven't so far), then you accept the following terms and conditions.  Please read this information.
.

Texas

.

I am in Texas.  The laws of the State of Texas apply to all that I do here, and by visiting my site or my blog, you agree that the laws of the Lone Star State apply, as well, should any controversy arise between us.  

.

Disclaimer

.

I am providing information here that I think may help you because it’s helped me.  Information regarding writing, especially writing that is published on the web, and related legal issues with all that entails.

Everything provided on my web site and blog is provided on an “as is” basis, and I’m not making any representations or warranties, expressed or implied, about the operation of the site or blog or any of the information, content, or products included or referenced here.   

If you use my site or blog, then I hope you enjoy it and find it helpful to you as you simplify your life.  However, I’m not giving you any guarantees here.  By reading my site or blog, you are expressly agreeing that your use of the blog or site is in your wheelhouse and at your own risk.  I’m not your doctor, your lawyer, your therapist, your editor, or your grandma.

Insofar as all applicable law allows, I disclaim all warranties, express or implied, that this site, or its servers, or any email sent by me, is free from viruses or other evil and harmful things.  I will not be liable for any damages of any kind arising from the use of the site or the blog.

Now, as for as the substance of the stuff found on my site or blog, I research things and try to be as accurate as possible.  Still, we’re all only human and so here’s my legal lingo on this issue:

I do not represent nor do I endorse the accuracy of any of the information found on my site or blog, and this includes the information that can be found on any site or blog that is linked in my content.  

The information contained in or accessed from any hyperlinked location is out of my control and I am in no way warranting what those site owners or bloggers are doing or may have done with their stuff.  Anyone reading my site or blog acknowledges that if they rely on the stuff that they find on third party sites as hyperlinked in my content is at their sole risk. 

Privacy Policy

I do not collect information here like some other sites or bloggers choose to do, using services like FeedBlitz, for instance.  I do not provide newsletters.  I do not collect personal information and I do not have any kind of mailing list database.   If you send a comment that may have too much personal information from my perspective, then I may edit that personal stuff out of the comment before it’s published to protect your privacy. 

Using Content Found on my Site or Blog

.

1.      Copyright

All the content placed on either the website or the blog – and this means the written content as well as the graphics, images, data compilations, you get the idea, is my property.  I own it. 

It is protected by the copyright laws of the United States as well as those copyright laws established in other countries.  It’s exciting to think I have readers in other countries and therefore need to mention international copyright laws.  Love that. 

If I have released something into the public domain, then this will be clearly stated and explained in the blog post, or on the web site page. 

.

2.     Licensure

I’m fine with your personal use of the content on my web site and blog and I officially grant you the limited license to access my site and blog and read the stuff and maybe even save some of it for your own self.  That’s cool, I like the idea that some of this stuff will help you and you want to save it!

However, I have been the victim of thieves taking my stuff and then selling it as their own stuff and that’s not right.  Even worse, I’ve had scoundrels take my content and then put it into pdfs and send those puppies out to try and entice people to download those things, which are traps for their malware or other evil plans. 

So, here is the official legal lingo that points to that sort of evildoing:  I do not grant a license to anyone to take my stuff and modify it, even a part of it, unless they have my written consent on a paper document and my official pen and ink okey dokey to do so.

I do not license anyone to reproduce, copy, duplicate, sell, resell, or in any other way use or exploit for their for-profit or commercial purpose anything on either my web site or blog.  I do not license any downloading or copying of anything found on the site or blog for your own commercial use, period. 

.

Comment Policy

Comments are great.  Love them.  However, I hate spam and trolls, too.  So I have things set up so I have to approve comments before they appear on the web site or blog.  Anyone is welcome to comment, submit suggestions, reviews, ideas, new info, etc. and questions are always great. 

However, I reserve the right to edit the stuff that appears on my web site and blog.  This means that I reserve the right to omit and not publish anything submitted that is illegal, vile, obscene, threatening,  hateful, or objectionable, and this includes submissions that are or may be defamatory, invasive of someone’s privacy, possibly infringing on someone else’s copyright or trademark, or in some other way potentially harmful to third parties.

This reservation of my rights also includes the right not to publish on my site any submissions that have or may include software viruses, political stuff, advertising aka commercial solicitation, mass mailing, or other things that you might consider to be “spam.”

If I think you are using a phony email address, then I reserve my right not to publish your submission.  In fact, if I think that your submission is in misleading in any way as to your real identity and purpose, then I reserve the right not to publish it. 

As for comments that do get published, by submitting your stuff you are allowing me an irrevocable, non-exclusive, free, and perpetual, right to use that submission on my site and blog, which includes my ability to publish it, modify or change it (for instance, to remove personal information and protect your privacy), translate it, distribute it, and display the content throughout the world in any media. 

This includes the right to use your name as you submitted it with your comment.  You are warranting that the stuff you submit is your stuff, and that you own the rights to that comment’s content.  If you have been sneaky and it’s not really yours, then you will indemnify me for any and all claims that might result from your bad acts here. 

Bottom line, I cannot and do not take responsibility and I assume no legal liability for any comments or other submissions that are posted and published here that come from any third party.

Same goes for trying out any products (software, keyboards, etc.). that you read about on my site or blog.  Try this stuff and use it at your own discretion and after you’ve done your own research.  I will not be legally liable for any harm or injury suffered by someone using a product recommended or discussed on my site or blog, whatever the cause. 

Questions

If you have any questions on any of these things – or about anything else related to my web site or blog, then please feel free to get in touch with me and ask!  The current contact information will be located in the Contact information sections of the web site and blog.  (Same stuff in two places.)

.

Changing Stuff

I reserve the right to change my mind.  I may change anything on the site or blog and that includes this Legal Stuff from time to time.  (Legally, I’m reserving my right to modification.)

And if anything here (including the Legal Stuff) is found to be invalid, void, or otherwise not legally enforceable for some reason, then that specific part of the site or blog, will be severed and removed but everything else on the site and blog will not be affected and will still be cool, i.e., it remains valid and enforceable.