Fair Use and Social Media

According to an email I received today from Strafford CLE Webinars, “The number of active monthly users [of social media] worldwide are staggering–Pinterest (265 million), Instagram (one billion), Twitter (330 million), YouTube (2 billion), Facebook (2.4 billion), and WhatsApp (1.5 billion)–and increasing. Social media users are sharing, tweeting, pinning, and posting a variety of intellectual property, including pictures, videos, articles, and more, often without the permission of the owner.”

It’s a problem. What’s a copyright owner to do?

Copyright law gives the copyright owner the right to certain restrictions on the use of their works of authorship. 17 USC 106 says:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

If anyone other than the copyright owner does any of these things without the permission of the copyright owner, that person is infringing and is liable to the copyright owner under 17 USC 501 et seq.

“Reproduction” includes copying and pasting from and to social media. That would be infringement. Infringement, under 17 USC 106, is actionable. Infringers can get themselves sued … for some pretty hefty sums.

However, 17 USC 107 codifies a concept called “fair use.” It says:

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.
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Fair use is the grayest of all gray areas of the law. The finding literally can spin on the whim of a judge. As to those who use social media to infringe, in 17 USC 107(4) lies the kicker that argues against the prosecution of copyright infringement for all those copied-and-pasted videos, graphics, works of art, musical numbers, old movies, text, and other works of authorship against anyone and everyone who has infringed the copyright holder’s rights. All that copying and pasting gets the copyright holder’s name and samples of their work out there, often virally. The market for the copyright holder’s work therefore expands far beyond the original reach of the work or the rights holder, which, de facto, has a positive “…effect of the use upon the potential market for or value of the copyrighted work.”
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These days, there are authors (and I use that as a term of art, not necessarily just as the author of text) who put their work up on Facebook, YouTube, InstaGram, wherever in an effort to cause the work to go viral. The work can only do that if the author does not squish the sharing of the work. The marketing effect of copy-and-paste is huge and growing. However, that effect can backfire; a work can be copied in very high resolution and the recipient of the copied work can then use that copy just as s/he would the original. That could kill the market for the work.
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So how does the copyright holder balance the wonders of viral marketing vs. the deleterious effect of too much copy-and-paste?
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I tell my clients:
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  • PUT A WATERMARK ON YOUR SHARED WORK in such a place that no one can remove that watermark without destroying the work. That makes it MUCH less desirable to copy and paste, yet the image on the internet retains the character of the original image
  • PUT A COPYRIGHT NOTICE ON YOUR SHARED WORK. Just do it. Copyright attaches the instant a work is affixed in a tangible medium. Give the world notice of that fact.
  • REGISTER YOUR WORKS WITH THE US COPYRIGHT OFFICE BEFORE YOU SHARE IT. It’s cheap. Just do it.

Or the copyright holder can donate the work to the public domain. If this is what the author wants to do, p with abandon … and consider any copyright in any posted work abandoned. Nothing wrong with that, and it saves all the angst and pain of not being able to enforce your unregistered copyright (you can’t enforce your unregistered copyright in the USA).

The choice of how to proceed varies with each author … and it is, after all, the author’s choice.

A Christmas Copyright

“Deck the Halls” is a song in the public domain. So is Handel’s “Messiah” … the whole thing, including the ever-popular “Hallelujah” Chorus. Lots of popular Christmas songs are in the public domain (but lots are not).

Does that mean that you’re free to use these works wherever and whenever you want?

Well, no.

The works themselves are in the public domain; that means that a musician or chorus can perform them, arrange them, make a derivative work from them, do whatever creative thing they want to do with them … but that performance, arrangement, derivative work or other creative thing based on the song is absolutely protected by copyright. That means that, unless you own that copyright or have licensed rights under that copyright, you are NOT free to use that performance of the public-domain work. Your unlicensed use of the work would be considered copyright infringement.

Have you bought the recording? Great! You then bought the license to play the recording privately in your home or car … in private.

Suppose you’re having a party … can you still play the recording? That gets a bit more tenuous. The practical answer is likely that no one will enforce your technical infringement of the copyright license you purchased when you bought the CD, but technically you are infringing on the copyright.

Suppose you own a business and you play the audio in your business? There you’re going to run into trouble. The copyright police are ever-present, and they come into your place of business looking, feeling, smelling and acting just like normal customers … until you get the cease-and-desist letter from the copyright holder citing the date, time, place and song being played without license. It happens to big business (that’s why MUZAK® exists) … and it happens to mom-and-pop shops, even when the mom-and-pop shop is just playing the radio or a CD that Mom or Pop purchased. That’s public performance, and public performance is NOT licensed by the purchase of a copyright-protected audio recording of a performance, even of a song that is in the public domain.

Happy Holidays!

Handy Widget for Converting Currencies

I’m going to England in December. Because of this fact, I’m interested in converting pounds sterling to dollars and vice versa. I found this handy-dandy widget that does just that.

While this has absolutely nothing to do with intellectual property, I put it here as a service to my IP clients (and others) who travel internationally.

Will Phonetic Profanity Be OK to Register as a Trademark??

SCOTUS granted certiorari to and recently heard arguments on the case of a guy trying to register FUCT as a trademark. The question: Can a phonetically profane word be registered as a trademark?

The US Patent & Trademark Office denied registration of the mark based on its obvious similarity to the past participle of a verb commonly recognized as profane. The case has wended its way through the appellate process (US District Court for DC, Federal Circuit) and now sits before the Nine Wise Ones where it asks them to decide whether a long-standing rule prohibiting the registration of profane words interferes with the trademark holder’s First Amendment free-speech rights. They heard oral arguments on 15 April 2019.

The Roberts Court has a history with disparaging marks, having allowed SLANTS (which the USPTO denied based on its derogatory reference to Orientals) only last year. But SLANTS is not outright profanity. FUCT, phonetically, is. It’ll be interesting to see what this blatantly conservative Court does with FUCT. Seems to me that either the trademark holder will be FUCT or the public will be.

Public Domain Expanded Nicely on 1/1/2019

For the first time in 20 years, the public domain for copyrighted works has expanded! Works that were copyrighted in 1923 were protected on 31 December 2018 but entered the public domain on 1 January 2019 … and that has happened now for the first time in 20 years thanks to the Sonny Bono Copyright Act.

Anyone can now re-publish the 1923 works, or use them in other projects, without asking permission or paying the former rights holders. Anyone can record new versions of the musical compositions; anyone can show the movies for a profit; anyone can even remake those movies. Project Gutenberg can give you the ebook of those 1923 works for free.

Works now in the public domain include some of the poetry by Edna St. Vincent Millay and Robert Frost; a couple of Agatha Christie mysteries; Khalil Gibran’s “The Prophet”; “The Ego and the Id” by Freud; writings by by Jane Austen, D.H. Lawrence, Edith Wharton, Jorge Luis Borges, Mikhail Bulgakov, Jean Cocteau, Italo Svevo, Aldous Huxley, Winston Churchill, G.K. Chesterton, Maria Montessori, Lu Xun, Joseph Conrad, Zane Grey, H.G. Wells, and Edgar Rice Burroughs; artwork by M. C. Escher, Pablo Picasso, Wassily Kandinsky, Max Ernst, and Man Ray.

Be careful with music, though. Some music published in 1923 is NOT in the public domain, and will not be until 2064 since rights over music recorded until 1972 is governed by state law.

IP Mosaic Conference – Blockchain Section

I was fortunate to be able to attend at least part of the Fourth Annual IP Mosaic Conference, held at my alma mater, UNH School of Law (formerly, and when I attended, Franklin Pierce Law Center). Less fortunately, I was sick and had to bag it, so I missed the section on blockchain.

But the conference organizers recorded the section on blockchain, which was the part of the conference I was really interested in, and they invite you to listen in.

Enjoy!

Collection vs. Individual Copyright Registration

According to a post by Heather Hummel on the Huffington Post’s blog:

Last spring when I discovered eight of my own images had been copyright infringed, I became particularly passionate about the legal rights of artists. I was fortunate that I had done a few things to help with protecting my work. One step was including a copyright statement, which is clearly stated, on my website. But, the most important step I took was not only registering my copyrights, but doing so in a timely manner. As such, several of my images that were stolen had already been registered with the U.S. Copyright Officeupon infringement. I can attest that it was worth the few pennies per image to do so.

For example, the fee for me to register 184 photos for 2013 and 134 photos for 2014 was $55 per batch.

This photographer registered copyright in her photographs by batching her photos and registering as a collection (the Copyright Office’s term is “collection,” not “batch”). This is a perfectly viable way to register copyright. It is cost-effective and it has teeth.

But wait.

A copyright infringement award is based on the percentage of the copyrighted work that is infringed. If the photographer registers only one or a very few photos in each registration and eats the $55/registration package fee, the percentage of the work that is infringed increases, here potentially by 100-fold or more.

Look at it this way. If you register 100 photos in one collection and someone infringes one of those photos, your maximum infringed percentage is 1%. Your recovery is 1% of the maximum recovery allowed for that infringement. If, though, you register 10 photos in one batch, your maximum infringed percentage is 10% and your potential recovery increases by a factor of 10. If you register each photo individually, your infringed percentage is potentially 100% and your recovery increases by a factor of 100.

It’s a trade-off, though; many photographers don’t want to spend $55 to register each and every photo; that simply gets cost-prohibitive very quickly. And that’s okay, as long as each photographer understands that the potential recovery for infringement goes down with increasing numbers of photos in the collection.

Matal v. Tam, ___ US ___ (2017)

SCOTUS handed down a HUGE trademark decision yesterday.

Matal v. Tam declares the language of 15 USC 1052(a), which prevents the registration of marks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead” to be unconstitutional under the First Amendment’s Free Speech clause.

Wow.

This opens up a whole new world of potential trademark registrations.

 

Free Legal Opinions and Orders Easily Accessible

This is pretty cool.

The Free Law Project is working to make available in one place all the free materials available on PACER. That includes opinions and orders from every federal court in the nation.

“Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case and docket information online from federal appellate, district, and bankruptcy courts, and the PACER Case Locator. PACER is provided by the Federal Judiciary in keeping with its commitment to providing public access to court information via a centralized service.” Note that the information is “public” access, not “free” access. Many documents on PACER require payment (at the whopping rate of $0.10/page, which can add up pretty fast if you’re talking about briefs and pleadings and motions and all the rest of it). The paid pages will not be available through the Free Law Project, but it will be easier to access the many opinions and orders that are available on PACER for free.