Posts Tagged ‘fair use’

Blogger’s Fair-Use Argument Regarding Copyrighted Photo Questionable

Tuesday, November 20th, 2012

Screengrab of RK Associates blogA blogger’s use of a photo of the target of her posts has prompted a copyright infringement lawsuit from the person she writes about – and leads to some interesting questions about fair use of copyrighted material.

Irina Chevaldina maintains a blog styled “RK Associates” whose sole purpose seems to be criticize the business dealings of Miami-area businessman Ranaan Katz. The blog intro says:

This blog presents publicly available information about RK Centers (former RK Associates), including court records, media publications and opinions. Raanan Katz is the owner of RK Associates (Centers). Raanan Katz is a minor owner of Miami Heat.

The offending picture of Katz is a head shot apparently taken courtside (by someone other than Katz) at a basketball game in Israel. The picture appears in several posts, recently with the message “He ripped off special needs little Jewish girl” superimposed over his chest.

Here’s where it starts to get interesting: Katz apparently bought certain rights to the photo, in the interest of bringing a copyright infringement suit against Chevaldina, which he then did in the U.S. District Court for the Southern District of Florida. Her lawyers have filed a motion to dismiss the case. In it, Chevaldina’s lawyers correctly point out that Katz cannot make any claim of infringement occurring before he bought the rights on May 29, 2012, absent any evidence that he bought the right to sue for past infringement.

The other claims in the trial motion – at Defendant’s Second Motion to Dismiss, Katz v. Chevaldina, No. 1:12-CV-22211-JLK, 2012 WL 4504086 –  lay out the battleground for the brewing legal fight.

The lawyers lead with the argument that Chevaldina can successfully raise a fair-use defense under the Copyright Act:

When determining the fair use of copyrighted materials for purposes such as criticism, comment, news reporting, teaching, scholarship or research, courts look to the following factors:

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.

17 U.S.C. § 107. [other citations omitted]

No one factor in the fair use analysis is dispositive, and they must be weighed together.

Now, Chevaldina’s lawyers seem to say that because Chevaldina wants to criticize Katz the businessman, it is OK for her to use a copyrighted picture of Katz the basketball fan to do so. Criticism in the Copyright Act sense more typically references criticism of the copyrighted work itself (think of book or movie reviews, analyses of museum exhibits, and the like).

So it will be interesting to see how that part of the case develops.

Chevaldina’s lawyers also correctly point out that courts value news uses of copyrighted works in the fair-use analysis:

In assessing the components of the four factor test, the Court is mindful that, while § 107 does not accord the statutory factors any particular weight in relation to one another, the characterization of defendant’s use as news related carries great weight in the analysis of fair use.

They further assert that Chevaldina’s use is a news use. Their brief lacks any exposition on this point, though.

Chevaldina’s lawyers also contend that her use of the photo is transformative, another key element in a Copyright Act fair-use defense:

The transformative nature of copyrighted material’s use is determined by whether the use adds something new to the copyrighted work, altering the first with a new expression, meaning or message; the more transformative the work, the less will be the significance of other factors potentially weighing against fair use.

Of course, the use in question does not have to transform the photo itself to be a transformative use.

So, again, it will be interesting to see how this all plays out as the case moves forward.

The Shields are Down! The Shields are Down!

Friday, September 2nd, 2011

Righthaven – the copyright thugster and blogger-suer extraordinaire – continues the nosedive it began with its Democratic Underground defeat in June, the revelations from which led me to suggest the Nevada bar should consider attorney misconduct charges against Righthaven CEO Steve Gibson.

Here’s some of the latest to happen since then:

Insignificant rebellion? South Carolina attorney Todd Kincannon is looking for people who’ve been sued by Righthaven to be clients for a class-action litigation he’s putting together. He’s even looking for people who’ve already settled. Wow, I don’t recall ever seeing people have a potential cause of action because they’ve settled. Righthaven hoped to blaze new legal trails – but not like this!

Screenshot of Righthaven website

I used to bulls-eye womp rats in my T-16 back home. They're not much bigger than two meters.

Righthaven has a website! I don’t know when this started, but it’s the first I’ve noticed it. When Righthaven originally hit the news, they didn’t have a web presence, but now they have this intimidating looking site. And what’s funny about it is, the first time I looked at, the television in our home happened randomly to chime in with a sound clip of the Darth Vader Theme from Star Wars. (For reals!) On its website, Righthaven declares itself “THE NATION’S PREEMINENT COPYRIGHT ENFORCER.” It’s also got a funny kind of graphic which, I have to say, kind of looks like the view down the trench of the Death Star. The only thing that interrupts the Dark Side theme is what looks like a gigantic bacterium that is dividing in two. And that, at least, certainly looks foreboding. Now, there’s no other pages or any other content except for the graphic, which has the slogan and contact information embedded in it. (Much of the text is hard to read because it disappears into the background in a typographic meltdown.) Now, you do realize what that means: By my putting up the one inset picture of the Righthaven website (upper right), I’ve copied 100% of the website. Uh oh. And since it’s Righthaven’s own website, this is one copyright infringement suit that they actually wouldn’t have standing problems with. Now, what I’ve done is fair use. Helpfully Righthaven’s misfires have helped establish solid precedent that taking 100% of something can qualify as fair use. Now, a solid fair-use defense hasn’t stopped Righthaven from suing in the past, but maybe it will in the future, since …

lots of $100 bills spread outCha-CHING! After losing on fair use in Righthaven v. Hoehn, 2011 WL 2441020 (D. Nev. June 20, 2011), Righthaven’s now been order to pay $34,000 in attorneys fees. “The wheels appear to be coming off the Righthaven trainwreck-in-progress,” says Ars Technica. And that’s gonna matter for a business that thrives on low-dollar settlements somewhere in the $2,500 range.

Will Righthaven declare bankruptcy before the year is out? Hmmm. Difficult to see. Always in motion the future is.

Laws Bloggers Can Be Thankful For

Thursday, November 25th, 2010

Photo of pumpkin pie by Peggy Greb of the USDA Agricultural Research ServiceHappy Thanksgiving to bloggers everywhere!

Here are some laws and legal concepts bloggers can be thankful for.

Public domain photograph of pumpkin pie by Peggy Greb, USDA Agricultural Research Service.

Gawker Posts Palin Excerpt, Then Backs Off

Monday, November 22nd, 2010

Sarah Palin's America by Heart bookcoverMegablogger Gawker posted excerpts of Sarah Palin’s book, America By Heart, ahead of its release to bookstores. Palin reacted in a tweet: “The publishing world is LEAKING out-of-context excerpts of my book w/out my permission? Isn’t that illegal?”

Gawker responded, claiming fair use. But the Associated Press reports that HarperCollins, the book’s publisher, filed a federal copyright-infringement lawsuit against Gawker on Friday.

Gawker, despite maintaining indignancy, has, according to the AP, pulled the exerpted pages down.

So, was it fair use?

Without knowing exactly what Gawker posted and how it fits into to Palin’s book, my initial, very strong, reaction is no, it’s not fair use.

There is actually a U.S. Supreme Court opinion remarkably close on the facts. In Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (1985), the high court held that Nation magazine’s unauthorized advance publication of excerpts of Gerald Ford’s soon-to-be-released A Time to Heal: The Autobiography of Gerald R. Ford, did not qualify as fair use.

Ford’s publisher, Harper & Row, has, by way of merger and acquisition, become HarperCollins, which is Palin’s publisher.

You think HarperCollins will cite that case in their brief?

You betcha.

Fair use is a fuzzy, flexible doctrine that produces unpredictable results when introduced in court. At least usually. But wow, it’s hard to imagine better precedent for a plaintiff than this.

In its post defending its actions, Gawker snottily taunted Palin, “[Y]ou may want to take a moment to familiarize yourself with the law … Or skip the totally boring reading and call one of your lawyers. They’ll walk you through it.”

But Gawker may have penned that jibe before they called their own lawyer.


Little wonder Gawker has now backed off.

Righthaven Loses Early on Fair Use

Monday, November 1st, 2010

Thugster slayer Michael Nelson

Righthaven has lost a copyright infringement case because of a successful fair-use defense raised at the earliest procedural opportunity. The case is Righthaven LLC v. Realty One Group, Inc., 2:10-cv-1036-LRH-PAL.

In May 2010, Michael J. Nelson, a Las Vegas realtor, posted a portion of a Las Vegas Review Journal news story about a federal housing program on his blog, Righthaven took a copyright assignment from the Review Journal and pounced with a federal lawsuit. Happily for bloggers everywhere, instead of caving and forking over a low-dollar-value nuisance settlement, Nelson fought back and claimed that what he did was legally protected fair use.

The court agreed.

Of key importance for the court was that Nelson copied only eight sentences of a 30-sentence story, and the portion he copied was of a factual nature, as opposed to the portion which contained the reporter’s commentary.

U.S. District Judge Larry R. Hicks made short work of the case in a four-page order.

The court found that the first fair-use factor – purpose and character of the use – weighed against Nelson because he used his blog to promote his realty business. The second factor – nature of the work – weighed in Nelson’s favor because the portion of the news article copied was factual in nature. The third factor – amount and substantiality of the portion of the copyrighted work used – weighed in favor of Nelson, the court held, since he only copied eight sentences from a total of 30 in the news story. The fourth factor – effect on the potential market – weighed in Nelson’s favor as well. Regarding this factor, the court said:

The court finds that Nelson’s use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article. Nelson’s copied portion of the Work did not contain the author’s commentary. As such, his use does not satisfy a reader’s desire to view and read the article in its entirety the author’s original commentary and thereby does not dilute the market for the copyrighted work. Additionally, Nelson directed readers of his blog to the full text of the Work. Therefore, Nelson’s use supports a finding of fair use.

That line of analysis portends very well for other bloggers sued by Righthaven.

Now I’d like to see Nelson file a motion to get attorneys’ fees.

Nelson’s case seems like a great victory for free speech and fair use, but there’s a sad postscript: As of the time I am writing this post, Nelson has removed all the content from his blog.

So Righthaven has lost, but free expression has lost too.

Fair Use and Reposting Articles About You

Friday, September 10th, 2010

A while back, I noted that under most circumstances, there is no good argument that reposting an entire newspaper story on the web qualifies as fair use under U.S. copyright law.

That being said, the Righthaven litigation has caused me to think about one particular set of circumstances for reposting whole newspaper articles that should generally qualify as a fair use. Those circumstances are when the article directly concerns the person (or entity) reposting it, and the article is not made available online so that the person about whom it was written can deeplink to it.

So, for example, if a newspaper writes an article about you, and then no longer makes that article freely available online, it seems to me there are strong reasons it should be a fair use for you to repost that article in its entirety on your website where people can view it without paying a fee or registering to get a password. To me, this rationale should apply even if you do not comment on the article – a common touchstone for fair-use analysis.

This is a fact pattern that has come up in the Righthaven litigation multiple times – a person or organization reposts an article directly concerning that person or organization. In fact, this is a well-established custom in many arenas, and it is a standard practice for many entities. It is often done through an agent, such as a publicist. The ubiquity of the practice suggests a belief among practitioners that it is not wrongful. Established customs do not always indicate widely held community values, but they often do. Here, I think the custom of entities reposting articles written about them reflects a culturally ingrained sense of fairness – one that copyright law ought to appreciate.

I do not know of any cases that support this view of fair-use doctrine – although I haven’t looked for them. But a lack of precedent wouldn’t mean that the fair-use doctrine should not be applied in this manner in appropriate cases. Fair use is meant to be flexible. The list of examples of fair use and the statutory list of factors to be considered in fair-use determinations are not intended to be exclusive.

When I was in journalism school, I recall one of my professors saying a newspaper can be thought of as “a community talking to itself.” If that is true – and I think it is – then the person being talked about has a strong personal interest in allowing that conversation to continue. Reposting a story ensures that.

We should bear in mind that a newspaper does not just write about stories of interest to the public, a newspaper actually infuses stories with public interest by the act of writing and publishing them.

We know that the First Amendment extends broad rights to newspapers to publish material about private persons where the topic or person is one of public interest. By the same token, private persons ought to have broad rights to republish material from newspapers when that material is written about them.

The free-speech, communicative, and democratic values that protect the right of newspapers to report and publish should also protect the right of persons who are subject to the scrutiny of the press to republish that material. In the great social contract that allows such unfettered freedoms to the press, a limited reposting right could well be considered the benefit of the bargain for the person subjected to the glaring light of the media.

Erickson Begins Series on Blog Legal Issues

Thursday, September 9th, 2010

Megan J. Erickson has started a series of posts on the IowaBiz Business Records blog about legal issues faced by bloggers.

In her first post, she discusses fair use. It’s a very enjoyable post, but I do have to take issue with one thing. In discussing the “nature of the copyrighted work” factor in fair-use analysis, Erickson wrote, “Bloggers may repeat facts or ideas contained in someone else’s online content, but may not copy the particular way in which the original author expressed that information.”

I think it’s important to note that depending on the circumstances, the fair-use doctrine can in fact protect the right of bloggers to say something in exactly “the particular way in which the original author expressed that information.”

The factual or fictional nature of the work can weigh in the fair-use analysis – and Erickson is not alone in emphasizing this – but I think it is important to keep the copying of facts analytically distinct from doctrines of fair use. What do I mean? Copying a fact or an idea is not copyright infringement at all. That is because neither a fact nor an idea is copyrightable subject matter. So fair-use analysis is irrelevant in such a situation. On the other hand, repeating an author’s particular expression may constitute copyright infringement, but that infringement may be excused completely on the basis of the fair-use defense.

I should note that Erickson’s regular blog, Social Networking Law Blog, is not only an interesting read, it’s one of the better looking blogs out there. The graphics package looks fantastic.

In Celebration of World Press Freedom Day

Monday, May 3rd, 2010
UNESCO's copyrighted graphic for World Press Freedom Day (depicting a stack of documents, the word "classified" crossed out, and the word "unclassified" appearing above)

UNESCO's unfree graphic for World Press Freedom Day

In celebration of World Press Freedom Day, I am posting, without authorization, the graphic, above, which comes from the World Press Freedom Day website maintained by the day’s official sponsor, UNESCO. You will notice its prominent copyright notice.

I note that UNESCO’s terms of use do not acknowledge concepts of fair use, instead taking a rather aggressive stance about the maintenance of copyright legends in the limited allowable re-use, and limiting allowable downloads to only those for personal, non-commercial usage.

Many in the United States and other countries with established fair-use entitlements will be able to safely ignore UNESCO’s overreaching. But that is not likely to be the case worldwide. With UNESCO’s mission of global public service, and their particular interest in press freedom and cultural participation, they should take the deliberate step to be less threatening with IP rights.

UNESCO’s stance is yet another reminder of the unfortunate view so many seem to have – that IP and expressive freedom are entirely separate issues, the consequence being that expansive intellectual property entitlements are not seen as posing a threat to free speech and free press rights.

UNESCO Terms of Use partial screen capture

UNESCO's Terms of Use: "All rights reserved."