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.
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.”
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.
So how does the copyright holder balance the wonders of viral marketing vs. the deleterious effect of too much copy-and-paste?
I tell my clients:
  • 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.

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!

American Broadcasting Companies vs. Aereo, Inc.

A couple of weeks ago, overshadowed by the Hobby Lobby decision, SCOTUS handed down a copyright decision that may substantially limit the ability of transmitters to transmit copyrighted broadcasts without a license to do so.

In American Broadcasting Cos. v. Aereo, Inc., 573 US ___ (2014), Aereo is a subscription broadcasting service that sold “…to its subscribers a technologically complex service that allows them to watch television programs over the internet at about the same time as the programs are broadcast over the air.” Slip Op. at 1. The technology is detailed in the case, so I do not reproduce it here; suffice it to say that through a complex series of technological events, each Aereo subscriber ends up having his or her own dedicated antenna through which copyrighted content is streamed to one computer only. The US District Court for the Southern District of New York, affirmed by the US Court of Appeals for the Second Circuit, found that this technology does not infringe the rights of the copyright holders of the shows that Aereo streams to its users because, first, Aereo does not “perform” within the meaning of the Copyright Act and, second, even if it does “perform,” it does not do so “publicly” because there is a dedicated antenna connected to only one computer, making the streaming a private showing, thus falling outside the “public” performance requirement of the Act to qualify as infringement.

SCOTUS disagrees. In a 6-3 decision delivered by Justice Breyer (the dissent comprises Justices Scalia, Thomas and Alito; all others concur in the majority opinion), the Court decreed that the 1976 Copyright Act was put in place, in large part, to overturn their decision in Fortnightly Corp v. United Artists Television, Inc., 392 US 390 (1968), which held that community-antenna television falls outside of the scope of the Copyright Act of 1952. Given the clear intent of Congress to make such activities fall very definitely within the scope of the Copyright Act, and given that Aereo’s activity are not substantially different from those of Fortnightly, the Court felt duty-bound to overturn the Court of Appeals for the Second Circuit’s holding that Aereo’s activities do not infringe copyright. SCOTUS holds for the plaintiff in determining whether (a) Aereo “performs” within the meaning of the Act and (b) Aereo performs “publicly” within the meaning of the Act.

There is language in the case that indicates that this case can be read narrowly, but this case puts rebroadcasters on notice: The act of rebroadcasting is a “transmission” within the meaning of the Act, and the viewer and broadcaster “perform publicly” within the meaning of the Act.

I advise my clients that it’s always easiest, best, cheapest to get a license to use the copyrighted works of others. This case just goes to show that this advice is still good.

The oral arguments on both sides are actually interesting for those of us who like copyright matters.

Daisy Baker’s subject of copyright lawsuit: From Business Review Albany, NY

Daisy Baker’s subject of lawsuit – The Business Review Albany: .

I keep telling people that COPYRIGHT LAW HAS TEETH.

This is an example of those teeth. The plaintiff, copyright holder ASCAP, is going after Daisy Baker’s, which is a business local to me (well, sort of local…the next city over), for allowing performance of music on which copyright exists. The business is the venue in which the music was allegedly played without license. The article doesn’t say whether ASCAP is also going after the performers (they could).

It’s easy (very easy) to license music from ASCAP or BMI (the two big copyright holders in the music world). It’s cheap to license the music. It’s expensive to defend a copyright infringement suit (lawyers cost money…), and then to pay the statutory remedies that are available for a registered copyright, perhaps trebled, perhaps with plaintiff’s reasonable attorney fees added in…. Why go there when it’s so easy and cheap to license the music to begin with??

Canada's looking at new copyright laws

Canada set to try again on new copyright law – washingtonpost.com.

Now, isn’t this interesting. Canadian lawmakers realize that the current copyright laws are — um — outdated, pre-internet, pre-P2P, pre-very-easy-download, and they’re looking to do something about their own law.

The US regularly updates its copyright laws, but the US, so far, has laws that have little to do with reality. Peer-to-peer (“P2P”) sites abound with content that clearly violates copyright law, and that content is downloaded by tens of thousands of people worldwide. How will the US keep up with this deluge of potential copyright infringement cases (there aren’t enough federal courts to hear these cases) unless we pass legislation that automatically compensates the copyright holder whenever a download is made. One way that this can be accomplished: advertising revenue for the copyright holder paid by the P2P site which enables the download. Another, better, way is for every P2P or .torrent site to charge a fee (one-time or membership, that doesn’t matter) for the downloads.

How about it, Congress?

Scoff at copyright law at your peril…

More trouble ahead for copyright scofflaws – Ask the Editors | Tri-City Herald : Mid-Columbia news .

The RIAA cases may have ground to a slow halt, but that does not mean that the copyright laws are to be ignored.

The Associated Press v. All Headline News case in New York settled with an undisclosed settlement payable to AP for the unauthorized use of AP stories and headlines by All Headline News. This case stresses the doctrine, first established by the US Supreme Court in 1918, that facts cannot be copyrighted but “hot news” gives a publisher the right to sue and collect damages even on facts.

In Europe, publishers have renewed their outcry for tough copyright laws protecting written materials as the publishers consider that the internet may provide them with additional streams of revenue.

Remember, in the US, the only two factors in a copyright infringement suit that plaintiff must prove are (1) a valid copyright exists and (2) a substantially similar copy exists. That’s it. No intent need be shown. No money need change hands. Copyright infringement is strict liability land. And damages are stiff.

Ain't No Plagiarism in Harry Potter Says Publisher – Yahoo News

Ain’t No Plagiarism in Harry Potter Says Publisher – Yahoo News.

Hmm. Copyright infringement and plagiarism seems to be coming out of my ears these days. Here the plagiarism, if found, would be for the general plot line. Harry Potter fought in the Triwizard Tournament and rode the Hogwarts Express (a train); the claimant’s wizard was a hostage and rode a train. The claimant’s book is The Adventures of Willy the Wizard No. 1, Livid Land.

The grounds for copyright infringement in the US are: (1) a valid copyright, which the estate of Adrian Jacobs may indeed have; and (2) a SUBSTANTIALLY similar work, which is where I think the estate falls flat. Lots of characters are held hostage and ride on trains. Not so many characters are wizards, but surely a wizard riding on a train and getting into a hostage situation … plagiarism?? Harry does many, many things besides ride on the train and get into a hostage situation.

The Hogwarts Express entered the Harry Potter lexicon with the first book. So did Voldemort … and Voldemort took a hostage in the second book (a witch named Ginny Weasley). The fourth book,  which all the hoopla is about, was published in July, 2000. I will point out that it’s now 2009; the book has been around for awhile. Why the wait to sue, Plaintiff?

Seems to me that this is one of the more stupid lawsuits. Best wishes to Rowling defending this one; it shouldn’t be too tough to do.