Ona law school for digital journalists - copyright - 2013 (10-10-13)

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COPYRIGHT LAW

Law School for Digital JournalistsOctober 18, 2013

Jon Hart Eric Lieberman jhart@dowlohnes.com eric.lieberman@fusion.net

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〉Fundamental tension in the law that governs the flow of information

〉Copyright vs. Free Speech

Copyright vs.

Free Speech

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〉 Copyright is baked into U.S. Constitution

〉 “[Congress shall have the power] to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” • U.S. Constitution, Art. I, Section 8, Clause 8

From the Earliest Days of Our Republic

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〉 To encourage:• Writers to write• Composers to compose• Inventors to invent

〉 Law must protect the output of creative endeavors by granting creators a monopoly over exploitation of their creations

The Premise

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〉 So much for the romantic notion that artists create art because they must

〉 “No man but a blockhead ever wrote except for money.”• Samuel Johnson

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〉 On the other side stands the Free Speech

〉 “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

〉 “The most valuable amendment on the whole list.”• James Madison

〉 Stated another way (with apologies to Stewart Brand) “all information wants to be free.”

Free Speech

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〉 This tension has been exacerbated by the disruption we’ve seen over the last 15 years in information businesses• The digitization of content and the ease with

which digital content can be copied and distributed

• Elimination of distribution monopolies• Newspaper: newsprint and trucks• Broadcasters: broadcast spectrum• Book publishers: distribution channels• Record companies: discs

Technology Is Disruptive

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When the CompetingInterests Collide

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〉 Copyright isn’t something you apply for• Copyright springs into existence when a work

is fixed in a tangible medium of expression

〉 Copyright belongs to the “author” of the work• Employers own works created by their

employees• Work-made-for-hire agreements give

publishers copyright in works created by freelancers

Setting the Stage: Copyright Basics

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Works of authorship, including:

〉 Literary works (including newspapers, magazine, etc.), photos, motion pictures and other audiovisual works (e.g., TV and radio programs and ads), music, drama, choreography, computer programs, websites, apps, artistic works, sound recordings

〉 Collective works: Think of a magazine made up of freelance content

What Does Copyright Protect?

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〉Copyright does not protect:

• Facts• Ideas• Procedures• Discoveries

Copyright Protects Expression

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〉People are egocentric and myopic

〉New Yorkers think of the City as the center of the universe

Idea

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Expression

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Fact/Procedure

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Expression

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The Joy of Cooking

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〉 Right to make copies of the work

〉 Right to distribute the work

〉 Right to make derivative works

〉 Right to display or perform the work publicly

〉 Make digital audio transmissions of sound recordings

Exclusive Rights

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〉 Exclusive rights (assignment, work-made-for-hire, exclusive license) can only be conveyed in writing

〉 Written agreements – even where license, not ownership is being conveyed – are particularly important in times of transition, when norms are changing

Practical Tips: Writing Requirement

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〉 Publisher gets a license, not ownership〉 Terms of the license turn on the intent

of parties, determined from custom 〉 Content originally obtained for print

publication• First, North American print publication

rights• Digital rights?

Practical Tips: Default — When There’s No Contract

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〉 License rights are infinitely divisible• Bundle of sticks

〉 Typical limitations• Exclusive/Non-exclusive• Limited by medium

〉Print, broadcast, web, mobile

• By language• By territory• Number of uses/time

License Limitations

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〉 First publication rights (perhaps restricted to a particular territory in print)

〉 Often exclusive for 90 days, then non-exclusive

〉 Worldwide right to distribute electronically• Don’t limit yourself to “web” rights

〉Any current or future digital or optical means〉All media known or hereafter invented

Practical Tips: Minimum Rights

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〉 Right to edit〉 Right to sell reprints〉 Right to syndicate〉 Right to license to searchable

databases (such as Nexis)〉 Right to use name and likeness for

promotional purposes

Other Rights to Consider

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〉Create plain-English forms〉Don’t deviate lightly from the forms

• Multiple forms〉Centralize contract administration〉Hand write changes in the margins〉 Include a revision date

Practical Tips: Contract Administration

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〉 Attribution doesn’t excuse infringement• Plagiarism is an academic and journalistic

concept• Attribution may help with fair use argument

〉 Copyright notice isn’t required• Don’t assume a work is in the public domain just

because it lacks copyright notice

〉 But display notice anyway• © [DATE] [IDENTIFICATION OF PUBLISHER]

Copyright Misconceptions

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〉 Step 1: Is It Copyrighted?〉 Step 2: Do You Have Permission To

Use It?〉 Step 3: Can You Use It Anyway?〉 Unsure? Contact Counsel

Practical GuidanceWhen Can You Use

Content Created by Others?

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〉 Probably yes〉 To be protected by copyright:

• Original expression• Fixed in medium• That’s it!• No need to register, or include copyright notice

to be protected• 1978 on – almost impossible to abandon.• Pre-1978 – very, very complex.

〉 Term of copyright. When in public domain?

Step 1: Is It Protected By Copyright?

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〉 Permission can be obtained from the copyright owner:• in writing• orally• even by silence, conduct, “custom and practice”

〉 Does context show a photo or article is intended to be used freely (“media” pages, a company’s typical PR channels, a band’s Facebook page)?

〉 Terms of use/license on website?〉 When in doubt, ask counsel

Step 2: Do You Have Permission?

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〉 Copyrighted work, no permission〉 Fair use/fair dealing is a defense〉 Defendant must overcome a

presumption of copyright infringement; “burden of proof” is on the defendant

Step 3: Can You Use Anyway? (Fair Use)

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〉 Fair use/ fair dealing attempts to reconcile monopoly rights of copyright owners with the societal interest in the free flow of information

〉 Balances competing claims regarding what’s in the public interest• Goal of copyright monopoly is not to benefit the

“author”• Rather, encouraging creative effort benefits

society

Fair Use/Fair Dealing

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〉 Limits the copyright owner’s right to control use of the work

〉 Copyright owner shouldn’t be allowed to prevent uses of the work that enrich our culture and do not significantly diminish the value of the original work

〉 Designed to ensure that copyright law doesn’t stifle the very creativity that copyright law is designed to foster

Fair Use/Fair Dealing

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〉 Fair use (U.S.)• Subjective, complex, highly fact-specific• No bright lines

〉 Forget whatever you’ve heard about it being OK to use x words, or y seconds of music or video

〉 The U.S. statute instructs courts to consider multiple, non-exclusive statutory and nonstatutory factors

〉 Risk adverse? Get permission

What’s a Protected Fair Use?

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〉Fair dealing (U.K., Canada, AU, NZ, etc.)• Categorical: Research, criticism,

news reporting, etc. • Brighter lines, less flexible

Fair Dealing

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1. Purpose and character of the use(Commercial vs. nonprofit/educational; criticism, comment, news reporting, scholarship, research, etc.)

2. Nature of original work(Published or unpublished; factual vs. creative)

3. Amount used in relation to work as a whole4. Effect on market for original work

Four Factor Test

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〉 The relevant question is not “can I use this photo (or video or illustration or text or music)?”

〉 It’s “can I use this photo, which was originally published in that context for my intended purpose?”

Fair Use: Practical Guidance

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〉 More likely to find fair use if the borrower uses the borrowed material in a way that’s transformative: altering the original with new expression, meaning, or message• Thumbnails in image search engine

〉Complete images, but different purpose• Clip of Ed Sullivan introducing the Four

Seasons in 1966 shown in Jersey Boys〉 Transformative uses add to the body of

work available to benefit the public

1. Transformative Use

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〉 Example: Murphy v. Millennium Radio

〉 Photo of DJs taken by freelancer for NJ Monthly “Best of New Jersey” feature

Millennium Radio Group

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〉 Not fair use to republish photo on station website to announce the award

〉 But, court said, if the photo had become controversial because it was risqué, it probably would have been fair use for a newspaper to republish it in connection with a news story on the controversy

Not Fair Use

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〉 That doesn’t mean that any use in connection with news reporting is OK

〉 If Forbes publishes a photo of Warren Buffet in connection with feature, Fortune can’t just re-use that photo because it’s easier to do so than to commission its own

〉 Same applies to other “favored” uses, such as teaching, scholarship, research

Fair Use Factor #1: Practical Guidance

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〉 For use to be transformative, borrower must add something• Newspaper stories about Miss Puerto Rico

republished risqué photos taken by freelancer before she was crowned

• By using the photographs in connection with editorial commentary, the newspaper “did not merely supersede the objects of the original creation, but instead used the works for a further purpose, giving them a new meaning or message.”

Fair Use Factor #1: Practical Guidance

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〉 If you borrow the essence of the original work, you can infringe without taking much

〉 Harper & Row sued The Nation for publishing a 300 word excerpt in advance of publication of Gerald Ford’s 30,000 word memoir• Time cancelled its contract to publish an

excerpt• Supreme Court found The Nation had

published “the heart of the book”

4. Effect on Market for Original

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〉 Question is not whether the copyright owner would like to have been paid

〉 But whether “unrestricted and widespread conduct of the sort engaged in by the defendant . . . Would result in substantially adverse impact on the potential market for the original.” Campbell v. Acuff-Rose

〉 Millennium Radio court stressed that freelancer was a “professional photographer”

Fair Use Factor #4: Practical Guidance

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〉 In U.S., no hard and fast rules: x minutes, y words〉 Don’t use the work the same way the copyright

owner did; use it in a manner that’s transformative• But only copyright owner can make derivative

works• And don’t remove gutter credit or copyright

notice (DMCA), or information about the photographer from within or adjacent to photo

〉 Don’t undercut the market for the original work〉 Consult a fair use expert on close calls〉 Post notice telling copyright owner how to contact

you to request takedown

Fair Use: PracticalGuidance

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〉 Facebook, Instagram, Pinterest, and other social media sites are tempting sources of photographs

〉 Technically easy to grab; legally more complicated• A photo belongs to the photographer, who took it• May not even have posted it• Terms of use don’t claim, or grant, right to reuse

rights (except, for example, within Pinterest)

Fair Use: A Social Media Illustration

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〉 Purpose and character of the use〉 Positive: news reporting, comment,

criticism, education〉 Transformative use: using the photo

for a purpose entirely different from the original; purpose

〉 Negative: commercial/for-profit

First Factor

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〉 Nature of the original work〉 Photos are generally considered

creative works, not just recitations of fact• Contrast Google Street View images

〉 Published vs. unpublished

Second Factor

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〉Amount and substantiality of the portion borrowed in relation to work as a whole

〉Almost always cuts against use of photo• Want to use the whole thing, not just an

excerpt

Third Factor

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〉Effect of use on market for original

〉 Images posted by professional photographers vs. images posted by amateurs with no intention to exploit commercially

Fourth Factor

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〉 Using photos to illustrate stories that include meaningful original text less risky than creating galleries of interesting images from around the web

〉 Small sizes are easier to defend than larger images

〉 Attribution helps the fair use argument• But “courtesy of” implies permission

Practical Advice

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〉Freelancer, photo agency etc.〉May be specific contractual terms.〉What about later use?〉A photo may be in your archives,

but its status may have changed in the interim.

Specific Situations:Professional Submission

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〉 Copyrighted owned by user〉 But clearly express or implied consent

for posting on site〉 To ensure other uses in the future, best

to get express consent〉 Note: Just because user submits

content, doesn’t mean s/he is the author

Specific Situations:User Submissions

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Specific Situations:Background Music

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〉 If embed code is provided, this must mean assume consent to embed

〉 YouTube Terms of Service:• “6. Your User Submissions and Conduct”

〉C. [B]y submitting User Submissions to YouTube, you hereby grant YouTube a worldwide . . . license to . . . perform the User Submissions in connection with the YouTube Website [which includes the embeddable player].”

〉 But some copyright owners’ TOS may require embedding without editing—e.g., to run their ads

Specific Situations:Videos with Embed Code

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〉 Very tricky〉 Could be multiple copyright holders (e.g.,

video, music)〉 Example: Clips from Sunday talk shows?

• Express consent?• Implied consent, custom and practice?• Depends on how used?• Commentary

〉 Some websites are aggressively taking and recutting others’ videos—they run a risk

Specific Situations:Video Clips

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〉 Are protected by copyright

〉 Circumstances may or may not indicate implied or express consent to use

〉 Facebook users retain copyrights

〉 Facebook TOS prohibit unauthorized copying

Specific Situations:Facebook Photos

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〉 Generally speaking:• Copyright plaintiff limited to single recovery

per allegedly infringed work〉Whether a book, movie, article, or photo〉Maximum statutory penalty for non-willful

infringement: $30,000〉Maximum statutory penalty for willful (bad faith)

infringement: $150,000

〉 But:• May have to pay the prevailing plaintiff’s

attorneys’ fees

Good News: Limited Damages

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〉 Section 230 immunity (discussed during Newsroom Law Session) specifically does not apply to claims of copyright or trademark infringement

〉 Service providers are protected in the U.S. from liability for copyright infringement based on content posted by users by the Safe Harbor provision of the DMCA

〉 There’s no similar immunity or safe harbor for claims of trademark infringement

〉 DMCA creates a notice and takedown regime

DMCA Safe Harbor

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〉 To find refuge in the Safe Harbor, online service providers must:• Have no actual or constructive

knowledge that material is infringing• Have no direct financial benefit from the

infringement, if the OSP has the “right and ability to control”

• Have registered with the Copyright Office an agent to receive notices of infringement

• Act “expeditiously” to remove or disable

DMCA Safe Harbor

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〉 To register a designated agent, go to www.copyright.gov

DMCA Safe Harbor

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〉 Copyright law was developed to limit unauthorized copying of creative works: “Copy right”

〉 But copying is what computers do and how the Internet works

〉 Some think traditional copyright inhibits the sharing of ideas

〉 To make it easier to grant licenses to digital works, CC has created a suite of predefined copyright licenses, what they call “some rights reserved”

Creative Commons Licenses

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〉 Creative Commons is not an alternative to copyright

〉 CC licenses are built on traditional copyright

〉 Predefined based on three fundamental choices:• Permitting commercial or only non-

commercial use• Permitting derivative works or not• If derivatives permitted, then “Share-Alike”

only?〉 All require attribution

Creative Commons Licenses

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〉 Grounded in law: Legal code layer〉 Accessible to non-lawyers: human

readable layer〉 Machine readable layer〉 Some sites (Google, Flickr, etc.)

permit users to search for content licensed under particular CC licenses

Creative Commons Licenses

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〉 In the U.S., everyone, celebrity or not, has the right to control commercial use of his/her persona (name, likeness, and other personally identifying characteristics)

〉 Right is modern• 1902, NY court rejected a claim by young

Abigail Roberson that her privacy had been invaded by distribution of 25,000 posters bearing her photograph and advertising Franklin Mills Flour: “The Flour of our Family”

Right of Publicity

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1902: NY court rejected a claim by Abigail Roberson that her privacy had been invaded by distribution of 25,000 posters bearing her photograph

Right Is Modern

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〉 NY legislature didn’t like the result〉 Passed a law prohibiting use of the

“name, portrait or picture” of any person “for advertising purposes, or for the purposes of trade”

〉 Many other states followed New York’s lead• Some, like Massachusetts and Virginia,

modeled their statutes on the New York law• Others, like California, crafted their own

approaches

Right of Publicity

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〉 Although the scope of the right of publicity varies from state to state, the fundamental protection is the same

〉 You can’t make use of a person’s name, likeness, or other personally identifying characteristics for purposes of trade or commerce

Right of Publicity

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Prohibition use of one’s persona for purposes of trade or commerce doesn’t mean you can’t use photos of people in connection with news stories or that you can’t put a celebrity on the cover of magazine without permission

Editorial vs. Purposes of Trade

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〉 But General Mills can’t put David Ortiz on the Wheaties box without his permission

Purposes of Trade or Commerce

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〉 Name• Houston nightclub: The Velvet Elvis

〉Portable Toilets: Here’s Johnny • “The Worlds Foremost Commodian”

〉 Likeness• Jackie Kennedy look-alikes• Elvis and Woody Allen impersonators

〉 Voice• Bette Midler: “Do You Want To Dance” (Ford)• Tom Waits: Frito-Lay/Doritos ($2.375 million)

Persona

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Any Indicia By Which Plaintiff Is Identifiable

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Any Indicia By Which Plaintiff Is Identifiable

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〉 Internet Law: A Field Guide (BNA Books 2008)

〉 Government Information• Copyright: www.copyright.gov• Privacy, advertising: www.FTC.gov

〉 Reporters Committee for Freedom of the Press: Digital Journalist’s Legal Guide• http://www.rcfp.org/djlg/

〉 Berkman Center for Internet & Society (Harvard): Legal Guide• http://www.citmedialaw.org/legal-guide

Additional Resources

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COPYRIGHT LAW

Law School for Digital JournalistsOctober 18, 2013

Jon Hart Eric Lieberman jhart@dowlohnes.com eric.lieberman@fusion.net