Fear Grips Blogs: Copyright Infringement

I think this issue is being tak­en a lit­tle too seri­ous­ly and literally–especially by the com­men­tors on Calacanis’s orig­i­nal post–because of one arti­cle, which was writ­ten in ear­ly 2002 if you read the fine print at the bot­tom (or read the URL). Were copy­right infringe­ment on blogs real­ly such a hot issue, we would have heard about it left and right the last two years. As Jason Calacanis proved with that one post, were any blogs to have been sued in the last two years for a dis­pute over Fair Use of an image in a blog, the news would have spread across the blo­gos­phere like wild­fire. And it hasn’t.

Here’s the backstory:
Re: Copyfight: Blogging Copyright Infringement
and…
Nanopublishing Weblog: Fair Use for pho­tos on the web and in blogs: a mod­est pro­pos­al to avoid a major battle

Someone sug­gest­ed request­ing infor­ma­tion regard­ing prop­er usage of pho­tographs from The American Society of Media Photographers (ASMP). While this is a good gen­er­al infor­ma­tion gath­er step, I doubt it will yield any­thing more than ASMP’s offi­cial posi­tion on blogs using pho­tographs in news cov­er­age. I sus­pect ASMP is going to give out ASMP’s take on Fair Use Copyright provisions–what is in ASMP’s best interests–not the unbi­ased intepre­ta­tion of the law.

To get a fair and unbi­ased inter­pre­ta­tion of the law one should con­sult an impar­tial expert, an intel­lec­tu­al prop­er­ty attor­ney licensed to prac­tice in Federal court. (I know a cou­ple if any­one needs a recommendation.)

An IP attor­ney will quote to from Section 107 of the United States Copyright Act (title 17, U.S. Code), which states:

§ 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. 

Now, the pro­vi­sion which his­tor­i­cal­ly caus­es the most argu­ment is num­ber one, which states “the pur­pose and char­ac­ter of the use, includ­ing whether such use is of a com­mer­cial nature or is for non­prof­it edu­ca­tion­al pur­pos­es.” This pro­vi­sion does NOT trans­late to: “as long you don’t make mon­ey, it’s OK.”

If I ripped off Wonkette’s web­site design and used it for my per­son­al, ad-free web­site I would still be in vio­la­tion of Copyright law. By the same token, just because CNN​.com is adver­tis­ing sup­port­ed does­n’t mean that it can’t post a screen­cap or even quo­ta­tions from The Design Weblog as part of a sto­ry on pro­fes­sion­al blogging.

The con­tent of most news blogs, includ­ing Weblogs, Inc’s blogs (to date), falls under the legal def­i­n­i­tion of press–we report on the news and review–“news report­ing” and “crit­i­cism, com­ment,” respec­tive­ly, direct from Section 107 above. In addi­tion to the explic­it pro­vi­sion of such use in the Copyright law as Fair Use, news report­ing et al is cov­ered under the First Amendment to the U.S. Constitution: “Congress shall make no law… abridg­ing the free­dom of speech, or of the press…”

Because of the rul­ing in Kelly v. Arriba Soft, which allowed the image index ser­vice at Arriba Soft to use thumb­nails of pho­tog­ra­ph­er Kelly’s images under Fair Use, a uni­lat­er­al move to using only thumb­nails (reduced size images) has been pro­posed by a cou­ple of blog­gers as a blan­ket solu­tion to alle­ga­tions of Copyright infringe­ment. But thumb­nails are not the answer.

Copyright law makes lit­tle dis­tinc­tion between a rep­re­sen­ta­tive piece of a copy­right­ed work and the whole; if the piece is enough to rep­re­sent the whole, if the piece is itself com­prised of orig­i­nal mate­r­i­al, then it enjoys the same pro­tec­tion as the whole. Thumbnails–and only those linked to the Kelly’s web­site for the full image–were the solu­tion in the Kelly case because the infringer was a site that indexed and cat­a­loged pho­tos en masse. It cat­a­logued thou­sands of pho­tographs and illus­tra­tions, and that was Arriba Soft’s busi­ness. They did­n’t do any­thing else but col­lect and dis­play images. This is a far cry from blogs that write news, reviews, and com­men­tary. Blogs are news and reviews sites, all of whom post hand-picked images express­ly and sole­ly for the pur­pos­es of report­ing, crit­i­cism, or comment.

Comparing blogs to image cat­a­logs is com­par­ing apples and oranges.

The answer to this sud­den dilem­na is do what has worked for blogs the last two years since that one unre­lat­ed case was writ­ten about, and, more to the point, what has worked for hun­dreds of years in jour­nal­ism: Credit the orig­i­nal source of the image/text and, when­ev­er pos­si­ble (e.g. an online source), link back to that source some­where in the (image cap­tion, body, or foot­er) of the blog post.

Disclaimer: I am not, nor have I ever been, an attor­ney. The above is my opin­ion based upon my decades of expe­ri­ence cre­at­ing and uti­liz­ing var­i­ous forms of intel­lec­tu­al prop­er­ty, includ­ing tens of thou­sands of pieces of Copyright pro­tect­ed mate­r­i­al, trade­marks, ser­vice marks, and Registered marks, and upon my expe­ri­ence as a client of, and in con­ver­sa­tions with, intel­lec­tu­al prop­er­ty attor­neys dur­ing those decades. Before form­ing any deci­sion toward course of action, always con­sult a prac­tic­ing intel­lec­tu­al prop­er­ty attor­ney. Look under “attor­neys – trade­mark” in your local Yellow Pages, or con­tact your local Bar Association for a recommendation.