Can I Do That Online? Copyright Law, Video, and Online Posting

Can I Do ThatOnline?Copyright Law &Online Posting

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Saper Law Offices, LLC is an intellectual property and business law firm with significant transactional and both federal and state litigation experience. We primarily concentrate in the following areas of law:

Trademarks Copyrights Trade Secrets Corporate Matters Internet and Cyber Space Entertainment

2Can I Do That Online? Copyright Law & Online Posting

Defamation IP Licensing Advertising Media Sponsorship and Advertising

Agreements Business Contracts

Topics covered Overview of copyright law

Social media terms of use

Do social media sites own my content?

DMCA — take down notice procedures

Posting/sharing news stories

Vacation photos, a trip to the courthouse?

Posting professional photos on a personal site

Side issues, model releases/right of publicity, defamation, file sharing, etc.


What’s a copyright? A copyright is a set of exclusive rights given to an

original author to regulate the use of a particular expression of ideas.

Copyright is available for original works of authorship fixed in any tangible medium of expression.


Rights of a copyright holder Make copies of the work Prepare derivative works Distribute copies of the

work to the public Perform the work publicly Display the work publicly

Need to register your copyright with the U.S. Copyright Office• Registration required to

sue…• Should register within 3

months• Can file online http

://www.copyright.gov/eco/


http://www.copyright.gov/eco/



Consequences of infringement Injunction Impoundment and/or destruction Damages

Actual Damages Statutory Damages

$750-up to $150,000 for willful infringement Attorneys fees


Fair Use17 U.S.C. § 107

“The fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”


http://www.copyright.gov/title17/92chap1.html%23107

Determining Fair Use17 U.S.C. § 107Factors to be considered in determining Fair Use:• Purpose and character of use

(commercial or nonprofit, educational)• Nature of copyrighted work• Amount of portion of work used in relation to work as a

whole• Effect on value of the work or use in market by copyright

holder


Social media guidelinesFacebook Terms of Service (TOS)“Protecting Other People's Rights” “We respect other people's rights, and expect you to do the same. You

will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law.”

“We can remove any content or information you post on Facebook if we believe that it violates this Statement.

“If you repeatedly infringe other people‘s intellectual property rights, we will disable your account when appropriate.”


Social media guidelinesYouTube Terms of Service“Your Content and Conduct” “You shall be solely responsible for your own Content and the

consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit...”

“You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant YouTube all of the license rights granted herein.”


Social media guidelinesFlickr’s Terms of ServiceUsers agree not to:

“…upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (”Rights“) of any party…”


Social media guidelinesTwitter’s Terms of Service“Twitter respects the intellectual property rights of others and expects users of the Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us.

…We reserve the right to remove Content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Twitter will also terminate a user’s account if the user is determined to be a repeat infringer.”


Digital Millennium Copyright Act (DMCA)

How does a service provider qualify for protection?• In addition to informing its customers of its policies, a

service provider must follow the proper notice and takedown procedures and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

• If Facebook (for example) follows the take-down requirements of the Act, it will be insulated from a claim for monetary damages and injunctive relief.


DMCA takedown exampleHere's an example with YouTube of how the takedown procedures work:• Alice puts a copy of Bob's video on her YouTube page.• Bob, searching the Internet, finds Alice's copy.• Charlie, Bob's lawyer, sends a letter to YouTube's designated agent

including: – Contact information.– The name of the video that was copied.– The URL (Web address) of the copied video.– A statement that he has a good faith belief that the material is not legal.– A statement that, under penalty of perjury, Charlie is authorized to act for the

copyright holder.– His signature.

• YouTube takes the video down.• YouTube tells Alice that they have taken the video down.


DMCA takedown exampleYouTube DMCA takedown example (continued…)• Alice now has the option of sending a counter-notice to YouTube, if

she feels the video was taken down unfairly. The notice includes: – Contact information.– Identification of the removed video.– A statement under penalty of perjury that Alice has a good faith belief the material

was mistakenly taken down.– A statement consenting to the jurisdiction of Alice's local US Federal District Court,

or, if outside the US, to a US Federal District Court in any jurisdiction in which YouTube is found.

– Her signature.

• YouTube then waits 10-14 business days for a lawsuit to be filed by Bob.

• If Bob does not file a lawsuit, then YouTube may put the material back up.


So, what’s the problem?• The law, and social media site guidelines, largely prohibits

users who do not hold the copyright from posting copyrighted material.

• But, media outlets encourage users to “share” or “like” their stories, tourist attractions use social media for promotions, and professional photographers post their work online.


What’s a user to do?• Just because copyright owners invite users to “share,”

view, and discuss their work, does not give users free reign to post copyrighted material at will.

• The following examples illustrate some issues and give users points to consider before posting material online.


Posting news storiesChicagoTribune.com’s Copyright statement:“The Content is intended for the personal use of users of the chicagotribune.com only. While you may interact with or download a single copy of any portion of the Content for your personal, non-commercial entertainment, information or use, you may not reproduce, sell, publish, distribute, modify, display, repost or otherwise use any portion of the content in any other way or for any other purpose.”


Posting news storiesWhat users can do: Use the “share” button on a media outlet’s news site to

share the article or video with their friends on social media websites or via e-mail

Link to the article or video—on the outlet’s web site—via a hyperlink Ticketmaster Corp. v. Tickets.com, Inc. determined that a

hyperlink is factual information, and posting it is not considered copying


Posting news storiesWhat users cannot do: Post all or most of the content of an article directly on

their personal or social networking sites. How much a user can post, exactly, is uncertain because it depends on the court’s analysis of the fair use factors.

Post a news outlet’s video to your YouTube profile page without the media outlet’s permission.


Posting news storiesRecent litigation: Righthaven, LLC

Searches the Internet for articles from the Journal-Review

Acquires the copyright to news articles (currently for the Las Vegas Review-Journal)

Sues those who post articles for copyright infringement Righthaven has brought approximately 150 lawsuits

under this scheme


Posting news storiesRecent litigation: Righthaven, LLC v. Democratic Underground

Righthaven sued the political satire site for posting a 5-sentence excerpt of an article, accompanied by a link to the original article posting on the Review-Journal’s website; Righthaven is asking for damages of $150,000

Democratic Underground claims fair use Case is still pending http://www.citmedialaw.org/threats/righthaven-v-democratic-

underground


http://www.citmedialaw.org/threats/righthaven-v-democratic-underground

http://www.citmedialaw.org/threats/righthaven-v-democratic-underground

Posting news storiesRecent litigation: Righthaven

, LLC v. Center for Intercultural Organizing Righthaven sued the organization for posting an entire 33-

paragraph article from the Review-Journal At a December hearing, a federal judge expressed

skepticism about whether the posting of the article harmed the Review-Journal

Case is still pending


http://docs.justia.com/cases/federal/district-courts/nevada/nvdce/2:2010cv01322/75299/15/

http://docs.justia.com/cases/federal/district-courts/nevada/nvdce/2:2010cv01322/75299/15/

Posting news storiesRecent litigation: Righthaven, LLC v. Realty One Group, Inc.

In October, a federal District Court judge dismissed the lawsuit, ruling that the defendant’s posting of 8 sentences of a 30-sentence article on his personal blog was fair use.


http://casesofinterest.com/tiki/Righthaven+LLC+v+Realty+One+Group+Inc





Posting news storiesRecent activity: DMCA The Columbus Dispatch and YouTube:

(Statement posted on www.dispatch.com.) “The Columbus Dispatch is proud to have created The Dispatch's Ted

Williams "Golden Homeless Voice" video and is happy to hear about so many potentially life-altering opportunities that resulted from the video…. When an unauthorized person posted the video on YouTube January 4, it was done in violation of The Dispatch Printing Co.'s copyright. YouTube was asked to remove the copyrighted video and redirect interested parties to the original video on dispatch.com…

…At no time was The Columbus Dispatch trying to prevent anyone from seeing our video. In fact, it has remained available since it was originally posted to dispatch.com. It has also been reposted on YouTube under our copyright.”


http://www.dispatch.com/live/content/index.html

http://www.dispatch.com/live/content/index.html

Posting news storiesConcerns of the copyright holder: Media outlets expend resources to gather, write, and post the news.

News outlets fund their online entities through ad revenue or online subscriptions. If online users can post all or large portions of that work on another site, readers will not go to the news outlet’s site.

The news outlet then cannot make money from subscriptions or prove to advertisers they can provide the page views to justify paying for advertising. Without revenue coming in, the news outlet cannot keep operating.


Posting news storiesThe bottom line on copyright…

Users can post a link to a news article or video without infringing on the media outlet’s copyright

Fair use likely allows users to post excerpts from articles, but how much users can post is hard to pinpoint

Even if a user posts under the fair use exception, they may be subject to a lawsuit from companies such as Righthaven, requiring users to expend time and money to deal with the suit


Taking videos of exhibits or events

Concerns of the copyright holder: If visitors post videos of the event’s content online,

other visitors may not see the point of visiting, and paying the admission fees for, the event

However, some events that have more interactive exhibits may permit visitors to share their videos to encourage others to visit and enjoy the exhibit first hand.


Sharing professional videosWhat users cannot do:Post digital files or copies of videos onto their personal social media or web site without the videographer’s or video producer’s permission.

Can I Post That Online? 29

Sharing professional videosWhat if you’ve had a professional video done originally for private use and want to post it online? Get proper permissions before public displaying that video. Jst

because the video is of you, does not mean you get to control its display and distribution online or elsewhere.

Review any receipts and sales agreements with your videographer or video production specialist for any usage and copyright policies.

As them what’s a permissible way to share your videos online — showing off their work can benefit you both.


Sharing professional videosKey Terminology:

Work for Hire Licensing vs. Assignment

What Users Can Do Use a link provided by the professional videographer or

video producer to share your videos Ask the videographer or video producer’s permission to

post the videos on your social media or personal web site


Do you own your social media content?

YES, but you grant broad license to distribute! YouTube: “… you retain all of your ownership rights …;” “you

hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license …”

Facebook: “You own all of the content and information you post on Facebook …;” “you grant us a non-exclusive, transferrable, sub-licensable, royalty-free, worldwide license”

Twitter: “This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same. But what’s yours is yours – you own your content.”


Legal Tips Summary Check the Terms of Service (TOS) of all web sites you use to

share content

Review the policies of news outlets, event organizers exhibits and attractions, and professional videographers and photographers you interact with.

If in doubt, don’t post

If you still want to post, ask for permission or clarification

Consult with an attorney for professional help


Thank you!We appreciate you attending our seminar.If you have any other questions or are in need of legal assistance, we welcome you to contact Saper Law Offices.

[email protected]

312-527-4100


http://www.saperlaw.com/


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Can I Do That Online? Copyright Law, Video, and Online Posting