Guide Through the Legal Jungle

Fair Use Explained in 50 Words?

A Fair Use Challenge

I am quoted in a Forbes article regarding how authors and writers can rely on copyright fair use when citing other textual works in their books and articles. The Forbes writer challenged me to provide a 35-50-word fair use rule of thumb to which authors and writers can refer when quoting other works.

A Rule of Thumb for Fair Use

Although I exceeded the desired word count by nine, here’s what I offered as a rule of thumb:

Use the quote for purposes of commentary, news reporting, or parody – though that need not be the primary purpose of your entire article or book. Quote as few words as possible to make your point. Note your fair use chances increase when quoting a factual work like a history rather than a highly creative work like a science fiction novel.

Caveats for Any Fair Use Rule of Thumb

Qualitative; Not Quantitative.  Fair use is not a quantitative test. It is a qualitative test. There is no bright line rule in determining what qualifies as fair use such as 250 words of text or 8 notes of a song or 10 seconds of a film.

Specific Circumstances Matter.   Instead, whether or not a particular use qualifies as a fair use depends on the specific circumstances of the use. Hence, there are certainly uses that do not meet all the criteria stated in my rule of thumb and still qualify as a fair use.

Fickle.   Fair use is often fickle and we cannot always answer with 100% certainty whether a particular use is a fair use. In those circumstances, authors have to evaluate the riskiness of citing the material without a license and how much of that risk they and their publishers are willing to accept.

You can read the full Forbes article, “What is Fair When it Comes to Fair Use?", by Henry DeVries here.

Copyright Registration for Your Podcast

This blog posting uses the term podcast; however, these guidelines for copyright registration apply to any original audio recording you produce.

Submit Your Application Electronically or On a Paper Form

You can register the copyright in your podcast as a basic claim using the Copyright Office’s online registration system or using a paper application form available from the Copyright Office’s website. Online registration is less expensive and has a faster processing time.

Determine Which Elements of the Podcast You Own

Your podcast potentially consists of two separate copyrightable elements. There is a copyright in the recording and a copyright in the underlying material (assuming the underlying material qualifies for copyright protection).

For example, suppose you write and develop a seminar on woodworking and then record a podcast featuring that seminar. There is a copyright in the seminar content you developed. There is also a separate copyright in the podcast recording of the seminar.

If you are the producer of the podcast but did not create the underlying content, claim ownership only in the sound recording. If you are also the owner of the underlying material, you may claim ownership in both the sound recording and the underlying material. By registering the underlying work and sound recording together in one application, you pay one filing fee instead of two.

More Resources on Copyright Registration:

How to Copyright Protect Your Work. Part One.

How to Copyright Protect Your Work. Part Two.

Copyright Protection for Internet Content. Part One. – Some Basics

Why You Must Check the Status of Your Copyright Registration Application

The Cyber Citizen’s Guide Through the Legal Jungle includes a sample of a completed copyright registration application for a podcast with explanatory notes.

Licensing for Music Samples

Sampling entails using portions of existing music in your new recording. For example, suppose you sample “I Will Always Love You” for a track on your forthcoming album.

Does sampling require permission? Most likely, yes.

Sampling may sometimes qualify as a fair use meaning your unauthorized use of the music is not copyright infringement. Unfortunately, there is no bright line rule for fair use. Using eight or four or even two bars of music does not guarantee a fair use determination. Instead, fair use depends on the specific circumstances of each situation.

As a result, it is risky to rely on fair use for sampling. Most commercially released albums obtain licenses for all sampled music. Which licenses you need depends on how you sample.

Licenses for Sampling the Song

If you go into a studio and record your own version of “I Will Always Love You”, you need a license only from the song copyright owner. Dolly Parton wrote “I Will Always Love You”. Velvet Apple Music, the music publisher that administers rights in the song, is the company you would contact for a sampling license.

Depending on the extent your album features “I Will Always Love You”, Velvet Apple Music might request partial ownership of your new song as compensation for the sample. Alternatively, Velvet Apple Music might be satisfied with a flat fee or percentage of the revenue generated by your new song without an ownership interest.

Licenses for Sampling the Sound Recording

Suppose instead you want to sample Whitney Houston’s 1992 performance of “I Will Always Love You”. In that case, you need permission from the sound recording owner. As compensation, the sound recording owner might ask for a set license fee or for a royalty. Sony BMG/Arista, Whitney Houston’s record label at the time of the recording, was the original sound recording owner. I’m not certain in whose ownership the recording landed after Arista’s demise.

You can not use the sound recording without using the underlying song. As a result, if you use Houston’s recorded performance, you are also using the underlying Dolly Parton song. In that case, you need licenses from both the song copyright owner and from the sound recording copyright owner.

For an explanation of how songs differ from sound recordings, see the posting, What Is a Music Copyright?

Copyright Protection for Internet Content. Part Three. Are Tweets Copyright-Protected?

This is Part Three in the blog series, Copyright Protection for Internet Content.

As many readers know, the online social networking service called Twitter is the originator of the term, “tweet”. A tweet is a message with up to 140 characters. One can send, post, and read tweets on Twitter which refers to itself as a microblogging service.

QUESTIONS RELEVANT TO COPYRIGHT STATUS OF A TWEET

Is the Tweet Isolated or Part of a Longer Work? A single 140-character tweet is likely too short to qualify for copyright protection. However, a stream of tweets that together comprise one coherent story may qualify for copyright protection. For example, one might post in a series of consecutive tweets -

• a news story

• a lecture or a speech

• a poem

• a short work of fiction

Does the Tweet Simply State Facts? As already discussed in Part One and Part Two of this blog series, facts on their own are not copyright protected. Tweets are often factual and may not be eligible for copyright protection.

Does the Tweet Include Visual Images? A visual image included in a tweet is going to have the same copyright protections it would have if you were holding a hard-copy of the image in your hand. In other words, assume the visual image is copyright protected until you have information proving otherwise.

WHEN CAN YOU RE-USE TWEETS THAT ARE COPYRIGHT-PROTECTED

If you determine that copyright does protect the tweets you want to use, circumstances under which you can use those tweets include the following:

You Can Use Copyright-Protected Tweets If Twitter Says You Can Use Them

When a person posts to Twitter, the person does retain ownership of his/her tweets. However, via the Twitter Terms of Service, the person gives Twitter “a worldwide, non-exclusive, royalty-free license” to re-use his/her tweets in any way Twitter wants. That means Twitter can stream or share the tweets with other online and offline outlets – and it means Twitter may allow others to do the same.

Twitter, in fact, uses its license in posted tweets to encourage other outlets to re-use tweets and incorporate tweets into other media. Twitter has policies allowing others to embed tweets into blogs and websites (using the Embed Tweet command found on every Tweet) and re-use tweets in broadcast productions. You do not need to contact Twitter for permission to use tweets in this way as long as your use complies with its written policies for Embedding a Tweet on your website or blog, Guidelines for using Tweets in broadcast, or other Twitter policy relevant to your use.

Caveat about Visual Images. The permission from Twitter allows you to display any visual images included in the tweet as part of your re-use of the entire tweet. It does not allow you to strip visual images out of the tweet and use those visual images independently of the tweet. The Washington Post, Agence France and Getty Images learned this lesson the hard way when they were sued and lost a copyright infringement lawsuit for publishing and distributing photos of the Haitian earthquake uploaded to Twitter by Photojournalist Daniel Morel 2013.

You Can Use Copyright-Protected Tweets if Your Use Qualifies as a Fair Use

Depending on how and why you use the tweet(s), the fair use exception to copyright protection may apply. Unfortunately, fair use determinations are very subjective and case-specific. There is no bright line rule that tells you when something does or does not qualify as a fair use.

Copyright Protection for Internet Content. Part Two. - Who Owns the User Comments on Your Blog?

This is Part Two in the blog series, Copyright Protection for Internet Content.

Most blogs have an interactive element and invite readers to submit comments to each of the postings. If the comment qualifies for copyright protection, the person submitting the comment owns that copyright. Some comments may not qualify for copyright-protection because, for example, they are too short or consist only of factual information. Here are examples of comments that would not qualify for copyright protection:

“I Agree!” - Too short for copyright protection

“The last three teams to win the Super Bowl were the Seattle Seahawks, the Baltimore Ravens, and the New York Giants.” – Just a fact, which on its own is not eligible for copyright protection

Most agree that the blogger has an implied license to post reader comments even if the blogger has no written terms of service giving the blogger an express license to post the comments. Sometimes, the blogger will want to do more with the comments than simply post them in the blog comment section. For example, a blogger might want to use some comments in marketing materials for the blog or in a subsequent book based on the blog. To take such actions, the blogger should have provisions included in the blog’s terms of service authorizing such use. For example, here’s a provision that the fictitious blog, aptly titled the VeryBestBlog, might incorporate into its terms of service:

The VeryBestBlog does not claim ownership of comments or any other content you submit. However, by submitting a comment to the VeryBestBlog, you grant us the royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, publish, translate, create derivative works from, distribute, and display your comment, and to incorporate your comment in other works in any form, media, or technology now known or later developed.

Copyright Protection for Internet Content. Part One. – Some Basics

To what extent does copyright protect internet content such as blog comments, tweets, and online reviews? That’s the topic of this blog series. In this Part One of the series, I share a few copyright basics.

When Does Copyright Protection for Internet Content Begin?
Under current United States law, you have a valid copyright as soon as you create your work. You are the copyright owner of any original work you post online – provided that your content is eligible for copyright protection. Registration with the U.S. Copyright Office is not required for you to hold a valid copyright in your online work; however, registration does provide a number of benefits. With some limited exceptions such as copyright fair use, the copyright owner is the sole person who may use the copyrighted work or authorize others to use it.

What Does Copyright Law Protect?
In copyright jargon, copyright protects original works of authorship that are written down, recorded, or otherwise fixed. It takes very little to meet the originality threshold for copyright protection. Your work is original as long as you do not copy it from another source. That means copyright protection extends to a variety of offline and online works including books, poems, magazine articles, artwork, songs, sound recordings, designs and, of course, websites and other online materials.

What Does Copyright Law NOT Protect?
Not everything is eligible for copyright protection. Things that are not eligible for copyright protection include the following:

Ideas. Ideas are not protected by copyright but the expression of the idea is. Unfortunately, separating the “idea” from the “expression of the idea” is often subjective and not necessarily intuitive.

Names/Titles/Short Phrases. Names, titles, and short phrases lack the originality and creativity required for copyright protection. However, under certain conditions, they may be protected by other areas of law such as trademark and unfair competition laws.

Facts. While raw facts by themselves are not copyrightable, a compilation of facts may be eligible for copyright protection. Hence, a website that presents factual data – such as daily deals available for products across the internet – does not hold a copyright in the data itself but might have a copyright in the way it compiles or presents the data.

Up Next
In the next posting of this blog series, I’ll discuss who owns the user comments on a blog.

Why You Must Check the Status of Your Copyright Registration Application

I have previously explained the process for filing a copyright registration application. This blog post emphasizes the importance of checking the status of your application if you have not received any communications from the Copyright Office within the expected processing time.

The Copyright Office’s website provides estimates of current copyright registration processing times. At the time of this writing, processing for registration is running 3 to 4 1/2 months for applications filed electronically and 5 to 8 months fro applications filed on paper.

But occasionally an application “falls between the cracks” and that’s why you need to check. Here is an example of such a situation I’ve experienced in my law firm practice:

A client filed on its own a paper application in November 2010. In March 2012, the client engaged me to determine the status of the application. Upon contacting the Copyright Office, I learned that the Copyright Office had entered receipt of the application into its system in January 2011. However, it took no further action on the application because the deposit copy was damaged in the screening process. Damage and/or loss to mandatory deposits is not uncommon due to the Copyright Office’s extensive off-site bio-contaminant screening process. In my client’s situation, the Copyright Office explained that a request letter for a replacement copy should have been sent out to my client, but for some reason, this never happened. To resume the processing, the Copyright Office needed a replacement copy of the material being registered. Once we submitted the replacement copy, the registration was completed within a few weeks. Happy Ending!

For Additional Information on Copyright Registration

My book, The Cyber Citizen’s Guide Through the Legal Jungle: Internet Law for Your Professional Online Presence, includes an in-depth discussion of copyright registration. Its appendix includes fully annotated examples of completed copyright registration applications for a blog, website, podcast, and online newsletter.

(Hopefully Rare) Example of News Media’s Copyright Cluelessness

Kristen Pierson’s Facebook page describes her “as an internationally published music and portrait photographer specializing in concert photography and band portraits”. A New England community newspaper used one of Ms. Pierson’s photographs in an article about a Rhode Island-based singer. Ms. Pierson contacted the newspaper to tell them the photo belonged to her. She also sent the newspaper an invoice with a license fee for using the photograph.

In a reply voice-mail message to Ms. Pierson, an editor of the offending newspaper revealed a deep misunderstanding of copyright law. (You can listen to the voice-mail message here.) Here are the reasons the editor used to defend the newspaper’s use of the photograph – and why those defenses are wrong:

A Third Party Gave the Photo to the Newspaper. The photograph was emailed to the newspaper. Since the photograph was given to the newspaper and the newspaper didn’t take it from somebody, it was okay for the newspaper to publish the photograph.

WRONG! Receiving material from a third party does not eliminate your responsibility for checking the copyright status of the material and verifying that you have permission to publish the material.

Pierson Received a Credit. The publication of the photograph included Pierson’s watermark crediting the photo to her. The editor’s implication is providing a credit made the use permissible.

WRONG! Credit is irrelevant. Giving a credit or other attribution does not impact your infringement of someone else’s copyrighted material when you use it without permission.

Public Domain. The photograph is in the public domain because it was on Facebook. Hence, it was okay for the newspaper to use the photograph.

WRONG! Just because material is on Facebook, Twitter, or other social media network does not place it in the public domain. While there are limited ways in which you can re-use material posted in social media (as allowed by the social media networks’ Terms of Use which typically restrict re-use to use within the network), you can’t take that material and use it in anyway you please.

What the Jersey Boys TV Clip Case Teaches Us about Fair Use

Background

Dodger Productions and Dodger Theatricals (“Dodger”) produced the musical Jersey Boys, a historical dramatization about the musical group, the Four Seasons, and the lives of its members. The musical uses a seven-second clip from a 1966 episode of The Ed Sullivan Show.

SOFA Entertainment owns the copyright in all the episodes of The Ed Sullivan Show as part of its film library which SOFA licenses for a fee. Dodger obtained no license and paid no fee for its use of the clip. SOFA sued for copyright infringement. The court decided that Jersey Boys use of the clip qualified as a fair use and SOFA lost the lawsuit. Not only did SOFA lose the lawsuit, but SOFA lost the lawsuit in a big way!

You can read the 9th Circuit decision in SOFA Entertainment v. Dodger Productions here.

How Jersey Boys Uses The Ed Sullivan Show Clip

Specifically, the seven second clip shows host, Ed Sullivan, introducing the January 2, 1966 performance of the Four Seasons. That 1966 appearance on The Ed Sullivan Show was a turning point for the Four Seasons. During the musical production, the clip plays on a screen while one of the live-stage actors tells the audience about the relevance of that television appearance. After the seven-second clip finishes, the live-stage actors perform Dawn, one of the Four Seasons’ signature songs.

Lesson One – Short, Transformative Uses Are Likely to Be Fair Use

I am a believer in strong copyright laws that protect copyright owners. I also believe that the court was correct to characterize Jersey Boys use as a fair use. My reasons for agreeing with the court’s fair use determination include the following:

• the clip was short (only 7 seconds)
• the use of the clip made a historical point
• the clip was not utilized purely for its entertainment value
• the specific clip was one of the few clips that could fulfill the purpose for which Jersey Boys used it

Lesson Two – Overreaching Rights Owners Can Get Smacked Down

While I am a proponent of vigorously enforced copyright laws, I also recognize that some copyright owners can be over-aggressive bullies and bring copyright infringement claims that have no merit. Apparently, the California federal courts think so too. The courts ruled that because SOFA’s copyright infringement claim against the Jersey Boys clip use was objectively unreasonable, SOFA would have to pay the Dodger’s attorneys’ fees and costs (a whopping $155,000). A significant factor in the court’s decision was that SOFA was sophisticated and knowledgeable about copyright infringement, had been involved in similar lawsuits, and should have recognized the Jersey Boys use as a fair use.

Lesson Three – Unauthorized Uses Frequently Come to the Attention of the Rights Owner

SOFA discovered the use of the clip because a SOFA executive just happened to attend a performance of Jersey Boys. A cautionary tale for producers who are counting on their unauthorized use of other people’s material going unnoticed.

Creating Ads with No Trademark or Copyright Issues

Most small businesses do some form of advertising or promotion. Commercials like to evoke images of popular culture including contemporary music, upcoming sports events, celebrities, and current events. In doing so, a small business might unknowingly step on the toes of a copyright or trademark owner. Here are some suggestions on how businesses can produce creative advertisements while staying in compliance with copyright and trademark laws.

Don’t Overestimate Fair Use Protection.
Assume that your business will require permission before using anyone else’s music, images, text, or other copyrighted material in your advertisements. It is true that the fair use exception to copyright protection does allow one to use a small portion of someone else’s copyrighted work without running afoul of copyright law. However, fair use determinations are very fact specific and, as a general rule, promotional and advertising uses do not qualify as fair use.

Understand Nominative Use versus Promotional Use.
Recognize the difference between nominative use and promotional use when it comes to well-known names, words, and phrases. If your sweepstakes rules indicate that first prize is Super Bowl tickets, you are using “Super Bowl” in a nominative manner to identify the prize. Such a nominative use is legal. On the other hand, if the headline on your homepage invites all visitors to enter the company’s Super Bowl Sweepstakes, that is a promotional use and you should expect to receive a cease-and-desist letter from the NFL.

Use Stock Images and Music.
Incorporating materials from stock houses into an advertisement can eliminate many of the licensing headaches and legal risks of using someone else’s material.

Don’t Forget Independent Artists.
One potential downside to material from large stock houses is that the material may have been in many other projects and may have been seen many times before. A creative solution I encourage clients to explore is using original music, art, poetry, and other content from independent art¬ists. There are thousands of talented and just-about-to-be-famous writers, filmmakers, visual artists, and musicians who welcome the exposure offered by inclusion in a promotional ad and will license rights for a fair but comparatively modest fee.