Guide Through the Legal Jungle

Minimizing Risk when Delegating Company Social Media Activities. Use of Images.

Train Staff and Freelancers in Basic Copyright Principles

Communicate to freelancers and staff that all company social media postings should respect others’ intellectual property rights. Ensure that individuals handling the company’s social media accounts have general awareness of copyright, fair use, and other rights clearance issues – whether you accomplish that task via an in-house training session, a third party webinar, a company handbook, or alternative means.

The copyright infringement lawsuit filed by the North Jersey Media Group (NJMG) against the Fox News Network illustrates what can go wrong when a company does not provide clear guidance to staff responsible for social media. NJMG sued Fox after Fox posted an NJMG-owned iconic 9/11 image to a Facebook page promoting the Justice with Judge Jeanine television program. After Fox's argument that the use was entitled to a fair use protection was rejected in a summary judgment motion, Fox elected to defend its use in a jury trial scheduled for early 2016. (See Note)

Here’s how the 9/11 image found its way to the Justice with Judge Jeanine Facebook page, according to the Fox-NJMG court documents:

A Fox production assistant held principal responsibility for managing and posting content to the Justice with Judge Jeanine Facebook page. She found and selected the 9/11 image for posting on Facebook after conducting an internet search on Google. The decision to post the image was hers. The production assistant, who had majored in journalism and media studies, had no copyright law training in college nor during her three-year tenure at Fox.

While the production assistant had access to the legal department and had previously consulted with it regarding the fair use of photographs and videos on the television program, she had never sought legal advice for postings on the Facebook page and did not seek the advice of the legal department or anyone else associated with the program before posting the iconic 9/11 image.

 

Encourage Staff to Use Pre-Cleared Pools of Creative Materials

Staff persons with no copyright training should not meander the internet in search of images to post to the company’s webpage and social media accounts! Read that sentence again.

Even images that appear to be rights free or come with Creative Commons licenses can still be problematic. With respect to relying on fair use, not even experienced copyright attorneys can always accurately predict which uses a court will view as a qualified fair use.

It might not be possible – or even desirable – to have a legal consultation for every image to be posted to the company’s social media accounts. One potential solution is making a bank of pre-cleared images available to staff and freelancers. There are stock image libraries of all sizes with the larger ones offering millions of images.

What’s ironic about the Fox-NJMG copyright lawsuit is that Fox may have actually had a license to post that iconic 9/11 image. Fox subscribed to the Associated Press photo bank and the 9/11 image is among the images the AP makes available to subscribers. Fox discovered this fact in the middle of the proceedings and after the deadline to amend its answer to NJMG’s complaint. The court would not allow Fox to amend its answer to add the defense of license. (North Jersey Media Group v. Pirro, No. 13 Civ. 7153 (S.D.N.Y., Mar. 2, 2015)).

The Lesson. If you have a blanket license to an image library, encourage – or, even better, restrict staff and freelancers to using images from that image library. Companies can apply similar strategies to music and footage by subscribing to stock music and stock footage collections.

Of course, even using stock images requires a modicum of guidance as there are definitely wrong ways to use stock images.

(NOTE: This posting previously incorrectly reported that NJMG and Fox settled the dispute after Fox’s failed summary judgment motion attempt. While the parties reportedly came close to settlement, those discussions ultimately proved unsuccessful.)

What the 9th Circuit Does and Does Not Tell Us about Fair Use and the DMCA. Ruling in Lenz v. Universal Music (a.k.a. Prince and the Dancing Baby Case)

Background

Everyone will be blogging about this case so I’ll keep my background description short.

On February 7, 2007, Stephanie Lenz uploaded to YouTube a 29-second home video of her two children dancing to the Prince’s song, “Let’s Go Crazy”. Universal Music Publishing, Prince’s publishing administrator at the time, issued a takedown notice under the Digital Millennium Copyright Act (DMCA) and YouTube removed the video. Lenz objected to the takedown and, with the aid of the Electronic Frontier Foundation, launched a lawsuit against Universal Music. Lenz argues that her video usage of “Let’s Go Crazy” is a fair use and that Universal Music’s issuance of the takedown notice was bad faith and constitutes misrepresentation under the DMCA.

After eight years of litigation, here is what the 9th Circuit does and does not reveal about copyright fair use and the DMCA in its opinion issued on September 14, 2015.

The 9th Circuit Does Tell Us

DMCA Takedowns Require a Fair Use Consideration. A copyright owner must consider the existence of fair use before sending a DMCA takedown notice.

A Fair Use Is a Legally Authorized Use. The DMCA unambiguously contemplates fair use as a use authorized by the law. As a result, If the online content uses the copyright owner’s material in a manner that qualifies as a fair use, the copyright owner may not send a DMCA takedown notice. This is because, under such circumstances, the copyright owner may not legitimately make the required DMCA takedown statement that the copyright owner has a “good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”

Copyright Owner’s Fair Use Assessment Need Not Be Correct; Good Faith Is Sufficient. The copyright owner sending a DMCA takedown notice need only have a subjective good faith belief that fair use does not apply. As long as it holds such a good faith belief, the copyright owner is not liable for any DMCA misrepresentation - even if a court subsequently reaches the opposite conclusion and decides that fair use does indeed apply.

Intensive Analysis Is Not Required. In order to comply with DMCA requirements, the copyright owner’s fair use analysis need not be searching or intensive.

Computers May Perform Fair Use Analysis. Computer algorithms can be a valid mechanism for considering fair use as part of the copyright owner’s identification of content to be taken down. This is the view of the majority. The dissenting judge – who agreed with the final result but disagreed with portions of the majority’s analysis – believes that a copyright owner may rely solely on a computer algorithm only if the computer algorithm can apply the four-factor copyright test indicated in the Copyright Act. While perhaps not impossible, getting a computer to apply what is a subjective and often fickle four-factor determination seems like quite a challenge.

Willful Blindness Negates Good Faith. The willful blindness doctrine may be used to determine whether a copyright owner made a misrepresentation in its DMCA takedown request. In other words, if a copyright owner subjectively believes that there is a high probability that a particular use qualifies as a fair use and takes deliberate actions to avoid learning of the fair use, then the copyright owner’s sending a takedown notice for removal of the material is a DMCA misrepresentation.

Damages Available Even If Plaintiff Suffers No Actual Loss. A plaintiff whose material is removed as a result of a DMCA takedown notice with a misrepresentation does not need to demonstrate any actual monetary loss in order to recover damages. Such a plaintiff may seek recovery of nominal damages from the copyright owner.

The 9th Circuit Does NOT Tell Us

Is It Fair Use? The 9th Circuit does not decide whether using 29 seconds of a copyrighted song in a family video and posting that video to the internet qualifies as a fair use of the song. That determination remains for the lower court. It could be quite some time before we have a court’s answer to this underlying fair use question. Commentators indicate that the Lenz parties might seek a Supreme Court review of the DMCA misrepresentation issue.

How Does a Copyright Owner Satisfy the Good Faith Standard? While the 9th Circuit reveals that the copyright owner’s good faith belief that fair use does not apply is sufficient for the DMCA required fair use consideration, it does not provide many details on how copyright owners should get to this good faith belief.

Here’s how Universal Music handled its YouTube DMCA takedown selection process An assistant in the Universal Music legal department monitored YouTube on a daily basis. For those videos including Prince songs, the assistant evaluated whether the video made significant use of the song, whether the song was recognizable in the video, whether the song was in a significant portion of the video, and the song was the focus of the video. While none of the Universal Music video evaluation guidelines explicitly included consideration of the fair use doctrine, the assistant did not issue DMCA takedown notices for videos that used a second or less of a Prince song or in which the Prince song was distorted by a noisy environment.

The majority of the 9th Circuit did not render a decision on whether Universal Music’s process satisfied the good faith fair use determination required by the DMCA. Instead, it decided there was a factual dispute regarding whether Universal Music’s procedure satisfied the good faith requirement and left the question for the lower court. In contrast, the dissenting judge says that Universal Music’s policy did not meet the good faith standard because Universal Music did not clearly include a fair use consideration as part of its DMCA selection process.

You can view the Lenz family video on YouTube here. You can read the full 9th Circuit opinion here.