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

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  • “Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and other arts.”
    Potter Stewart, Twentieth Century Music v. Aiken (1975)
  • Transcript

    • 1. COPYRIGHT LAW Law School for Digital Journalists October 18, 2013 Jon Hart jhart@dowlohnes.com 1 Eric Lieberman eric.lieberman@fusion.net
    • 2. Copyright vs. Free Speech 〉Fundamental tension in the law that governs the flow of information 〉Copyright vs. Free Speech 2 2
    • 3. From the Earliest Days of Our Republic 〉 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 3 3
    • 4. The Premise 〉 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 4 4
    • 5. 〉 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 5 5
    • 6. Free Speech 〉 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.” 6 6
    • 7. Technology Is Disruptive 〉 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 • • • • 7 Newspaper: newsprint and trucks Broadcasters: broadcast spectrum Book publishers: distribution channels Record companies: discs 7
    • 8. When the Competing Interests Collide 8 8
    • 9. 9 9
    • 10. 10 10
    • 11. Setting the Stage: Copyright Basics 〉 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 11 11
    • 12. What Does Copyright Protect? 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 12 12
    • 13. Copyright Protects Expression 〉 Copyright does not protect: • • • • 13 Facts Ideas Procedures Discoveries 13
    • 14. Idea 〉People are egocentric and myopic 〉New Yorkers think of the City as the center of the universe 14 14
    • 15. Expression 15
    • 16. Fact/Procedure 16
    • 17. Expression The Joy of Cooking 17 17
    • 18. Exclusive Rights 〉 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 18 18
    • 19. Practical Tips: Writing Requirement 〉 Exclusive rights (assignment, work-madefor-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 19 19
    • 20. Practical Tips: Default — When There’s No Contract 〉 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? 20 20
    • 21. License Limitations 〉 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 21 21
    • 22. Practical Tips: Minimum Rights 〉 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 22 22
    • 23. Other Rights to Consider 〉 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 23 23
    • 24. Practical Tips: Contract Administration 〉 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 24 24
    • 25. Copyright Misconceptions 〉 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] 25 25
    • 26. Practical Guidance When Can You Use Content Created by Others? 〉 Step 1: Is It Copyrighted? 〉 Step 2: Do You Have Permission To Use It? 〉 Step 3: Can You Use It Anyway? 〉 Unsure? Contact Counsel 26 26
    • 27. Step 1: Is It Protected By Copyright? 〉 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? 27 27
    • 28. 28 28
    • 29. Step 2: Do You Have Permission? 〉 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 29 29
    • 30. Step 3: Can You Use Anyway? (Fair Use) 〉 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 30 30
    • 31. Fair Use/Fair Dealing 〉 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 31 31
    • 32. Fair Use/Fair Dealing 〉 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 32 32
    • 33. What’s a Protected Fair Use? 〉 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 33 33
    • 34. Fair Dealing 〉 Fair dealing (U.K., Canada, AU, NZ, etc.) • Categorical: Research, criticism, news reporting, etc. • Brighter lines, less flexible 34 34
    • 35. Four Factor Test 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 whole 4. Effect on market for original work 35 35
    • 36. Fair Use: Practical Guidance 〉 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?” 36 36
    • 37. 1.Transformative Use 〉 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 37 37
    • 38. Millennium Radio Group 〉 Example: Murphy v. Millennium Radio 〉 Photo of DJs taken by freelancer for NJ Monthly “Best of New Jersey” feature 38 38
    • 39. Not Fair Use 〉 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 39 39
    • 40. Fair Use Factor #1: Practical Guidance 〉 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 reuse 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 40 40
    • 41. Fair Use Factor #1: Practical Guidance 〉 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.” 41 41
    • 42. 4. Effect on Market for Original 〉 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” 42 42
    • 43. Fair Use Factor #4: Practical Guidance 〉 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” 43 43
    • 44. Fair Use: Practical Guidance 〉 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 44 44
    • 45. Fair Use: A Social Media Illustration 〉 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) 45 45
    • 46. First Factor 〉 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 46 46
    • 47. Second Factor 〉 Nature of the original work 〉 Photos are generally considered creative works, not just recitations of fact • Contrast Google Street View images 〉 Published vs. unpublished 47 47
    • 48. Third Factor 〉 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 48 48
    • 49. Fourth Factor 〉 Effect of use on market for original 〉 Images posted by professional photographers vs. images posted by amateurs with no intention to exploit commercially 49 49
    • 50. Practical Advice 〉 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 50 50
    • 51. Specific Situations: Professional Submission 〉 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. 51 51
    • 52. Specific Situations: User Submissions 〉 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 52 52
    • 53. Specific Situations: Background Music 53
    • 54. Specific Situations: Videos with Embed Code 〉 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 54 54
    • 55. Specific Situations: Video Clips 〉 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 55 55
    • 56. Specific Situations: Facebook Photos 〉 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 56
    • 57. Good News: Limited Damages 〉 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 57 57
    • 58. DMCA Safe Harbor 〉 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 58 58
    • 59. DMCA Safe Harbor 〉 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 59 59
    • 60. DMCA Safe Harbor 〉 To register a designated agent, go to www.copyright.gov 60 60
    • 61. 61 61
    • 62. 62 62
    • 63. Creative Commons Licenses 〉 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” 63 63
    • 64. Creative Commons Licenses 〉 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 64 64
    • 65. Creative Commons Licenses 〉 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 65 65
    • 66. Right of Publicity 〉 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” 66 66
    • 67. Right Is Modern 1902: NY court rejected a claim by Abigail Roberson that her privacy had been invaded by distribution of 25,000 posters bearing her photograph 67 67
    • 68. Right of Publicity 〉 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 68 68
    • 69. Right of Publicity 〉 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 69 69
    • 70. Editorial vs. Purposes of Trade 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 70 70
    • 71. Purposes of Trade or Commerce 〉 But General Mills can’t put David Ortiz on the Wheaties box without his permission 71
    • 72. Persona 〉 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) 72 72
    • 73. Any Indicia By Which Plaintiff Is Identifiable 73 73
    • 74. Any Indicia By Which Plaintiff Is Identifiable 74 74
    • 75. Additional Resources 〉 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 75 75
    • 76. COPYRIGHT LAW Law School for Digital Journalists October 18, 2013 Jon Hart jhart@dowlohnes.com 76 Eric Lieberman eric.lieberman@fusion.net