Emily Campbell, Esq.: Blogging and Copyright Law - Things to Think About

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Emily Campbell's breakout session at BlogPaws 2012: Blogging and Copyright Laws - Things to Think About

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  • © 2012 Dunlap Codding, P.C.
  • © 2012 Dunlap Codding, P.C.
  • Overview of Copyright Law Applying Copyright Law to Blogging © 2012 Dunlap Codding, P.C.
  • What does it mean if it’s copyrighted? Owners can exclude others from: reproducing the work distributing the work to the public creating a “derivative work” based upon the work performing the work in public displaying the work to the public transmitting the work by means of digital audio transmission © 2012 Dunlap Codding, P.C.
  • Facts - Historical, Current Events, or even Biographical facts   Ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, or devices as distinguished from a description, explanation, or illustration Titles, short phrases, slogans, or names   However - trademark, patent, or trade secret laws may be used for some of the above items © 2012 Dunlap Codding, P.C.
  • Nothing more is required Registration of copyright is not required Modern - Copyright notice is not required © symbol not required, copyright begins at moment fixed in tangible medium ( currently ) © 2012 Dunlap Codding, P.C.
  • © 2012 Dunlap Codding, P.C.
  • © 2012 Dunlap Codding, P.C.
  • Purposely small to illustrate the point that this is fine print: WordPress Terms of Service states: Responsibility of Contributors. If you operate a blog, comment on a blog, post material to the Website, post links on the Website, or otherwise make (or allow any third party to make) material available by means of the Website (any such material, “Content”), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software. By making Content available, you represent and warrant that: the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party; if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content; you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms; the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content; the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing); the Content is not pornographic, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party; your blog is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods; your blog is not named in a manner that misleads your readers into thinking that you are another person or company. For example, your blog’s URL or name is not the name of a person other than yourself or company other than your own; and you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Automattic or otherwise. By submitting Content to Automattic for inclusion on your Website, you grant Automattic a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your blog. If you delete Content, Automattic will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable. Without limiting any of those representations or warranties, Automattic has the right (though not the obligation) to, in Automattic’s sole discretion (i) refuse or remove any content that, in Automattic’s reasonable opinion, violates any Automattic policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Automattic’s sole discretion. Automattic will have no obligation to provide a refund of any amounts previously paid. © 2012 Dunlap Codding, P.C.
  • The Digital Millennium Copyright Act (DMCA) 17 U.S.C. 512: Passed on October 12, 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users. © 2012 Dunlap Codding, P.C.
  • © 2012 Dunlap Codding, P.C.
  • Public Domain Prior to 1923 – Public Domain Prior to March 1, 1989 Absolute mess ---- depends on number of factors After March 1, 1989 70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation Licenses Do not have to be in writing Can be implied from the circumstances Fair Use Think of it is a kind of license granted to the public to do certain things to and with copyrighted works that would otherwise constitute infringement © 2012 Dunlap Codding, P.C.
  • http://digitalmedia.fws.gov/cdm4/item_viewer.php?CISOROOT=/natdiglib&CISOPTR=6768&CISOBOX=1&REC=6 Title Familiar migratory songbirds Contact mailto:library@fws.gov Creator U.S. Fish and Wildlife Service Description This is a booklet that describes various migratory birds that are familiar in the United States. The species covered include the American robin, the American goldfinch, the Ruby-throated hummingbird, the eastern bluebird, the barn swallow, the gray catbird, the dark-eyed junco and the white-throated sparrow. Subject Birds Birdwatching Migratory birds Publisher U.S. Fish and Wildlife Service Contributors Hines, Bob (illustrator); Fuentes, Louis Agassiz Date of Original 1999-7 Type Text Format PDF Item ID Pubs\\Birdsweb.pdf Source NCTC Conservation Library Language English Rights Public Domain Audience General File Size 201 KB Original Format Digital Length 4 p. Transcript U. S. Fish & Wildlife Service Familiar Migratory Songbirds Migratory birds nest in one place and migratory songbirds nest in the U. S. and Canada and winter in the contiguous U. S. winter in another and may travel from a winter in the tropics. However, some, such Following are some interesting facts about few hundred to thousands of miles in as the dark- eyed junco and white- throated a few of our most familiar migratory between. Most of our more familiar sparrow, nest in northern Alaska and songbirds: American ...View all Date created 2009-08-10 Date modified 2009-08-10 © 2012 Dunlap Codding, P.C.
  • This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution. © 2012 Dunlap Codding, P.C.
  • This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution. © 2012 Dunlap Codding, P.C.
  • Basic Brooks, Inc. v. Kinko’s Graphics Corporation, 758 F.Supp. 1522, 1529 (S.D.N.Y. 1991) © 2012 Dunlap Codding, P.C.
  • There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is "fair" is talking about guidelines, not the law). The Copyright Act sets out four factors for courts to look at ( 17 U.S.C. § 107 ): The purpose and character of the use. Transformative uses are favored over mere copying. Non-commercial uses are also more likely fair. The nature of the copyrighted work. Is the original factual in nature or fiction? Published or unpublished? Creative and unpublished works get more protection under copyright, while using factual material is more often fair use. The amount and substantiality of the portion used. Copying nearly all of a work, or copying its "heart" is less likely to be fair. The effect on the market or potential market. This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it's unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair. Linking to the original may also help to diminish the substitution effect. Note that criticism or parody that has the side effect of reducing a market may be fair because of its transformative character. In other words, if your criticism of a product is so powerful that people stop buying the product, that doesn't count as having an "effect on the market for the work" under copyright law. © 2012 Dunlap Codding, P.C.
  • Endorsement: any advertising message that consumers are likely to believe reflects the opinion, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser. If the blogger receives the product from the manufacturer for free, then the blogger should disclose this fact. Basically if at anytime the blogger receives the product for free, or in any other manner in which it may influence his review of the product, then the relationship between the blogger and the marketer should be disclosed.
  • Reports indicate the fine could be up to around $10,000. However, the FTC says this is untrue. More likely, it is reported that each infraction will build up until the FTC decides to act. So far the FTC has only gone after companies and corporations. These have resulted in settlements. Legacy Learning Systems is the first company required to pay a monetary settlement. The FTC claims that reviews on Legacy learning videos were obtained from paid endorsers.
  • Emily Campbell, Esq.: Blogging and Copyright Law - Things to Think About

    1. 1. Blogging and CopyrightLaw: Things to Think About Emily E. Campbell, Esq. DUNLAP CODDING, P.C.
    2. 2. “Lawyer-ese” This presentation is © 2012 Dunlap Codding,P.C.This presentation should not be considered legaladvice.
    3. 3. Intellectual PropertyThe law protects all forms of intellectual property (IP) and includes: Trademarks, service marks and trade dress;  © Patents;  Trade secrets; and 
    4. 4. Sources of Copyright LawU.S. Constitution - Article I – Sec. 8 The Congress shall have 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. Copyright Act of 1976, as amended Effective January 1, 1978 17 U.S.C. § 101, et seq.  
    5. 5. What is protected by Copyright? Copyright applies to  “original works of authorship” that are  “fixed in any tangible medium of expression” Literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio­ visual work
    6. 6. What is protected by Copyright? Copyright never protects the “facts” -- only the way the author has organized, selected, or arranged The copyright owner therefore does not have the exclusive right to reproduce the “facts” in a work; only the way that he/she chose to select, organize or arrange those facts Tob y re sting by chri stho mso Mango HaX0ring by slava n
    7. 7. What if there is no ©? A copyright owners exclusive rights are automatic Doesn’t mean that the work is “free” to use Good practice to attach a copyright notice to your blog, images, and other copyrightable works
    8. 8. Who is the “Author?” Ordinarily, the author is who you think it is Joint authors own a copyright jointly If the work was created by employee acting within the scope of his/her employment, the employer is the author Oftentimes, the author is the owner, however, ownership can be transferred from the author to a third party. Chiang Mai - Maetaman by ckmck
    9. 9. What does all this mean? Owners can exclude others from: • reproducing the work • distributing the work to the public • creating a “derivative work” based upon the work • performing the work in public • displaying the work to the public • transmitting the work by means of digital audio transmission
    10. 10. Do Copyrights last forever? No. Works published prior to 1923 – Public Domain Prior to March 1, 1989  Absolute mess ---- depends on number of factors After March 1, 1989  70 years after death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation
    11. 11. The Good News The stuff you create is protected by copyrights. © 2011 Emily Campbell
    12. 12. The Good News Copyrights will protect:  Blog designs  Artwork  Text  Any original work of authorship. Metallic ballpen tips / biro Ballpen Ballpoint pen in silver with handwritten random blue text on quad- ruled paper by photosteve 101
    13. 13. The Bad News The stuff other people create is protected by copyrights. Unauthorized use of another’s copyrighted material may place you at risk:  Financialjeopardy  Reputation  Criminal Penalties Money by AMagill
    14. 14. More Bad News … Fine print
    15. 15. Digital Millennium Copyright Act (DMCA)Complaints Creates a “safe harbor” immunity from copyright liability for service providers who “respond expeditiously” to notices claiming that they are hosting or linking to infringing material. You can counter-notify
    16. 16. Bad News … … Company XYZ is never willing to resolve copyright infringement and unauthorized use claims for the same amount as the base licensing rate … it would encourage unauthorized use because there would be no real disincentive to getting caught.  Moreover, that approach fails to take into the significant costs incurred by Company XYZ in tracking down your unauthorized use that would not have been incurred had you come to us for a legitimate license … many image companies multipliers such as 5x or10x for unauthorized uses…
    17. 17. Protection from Infringement? Original Content Public Domain Creative Commons Licenses Fair Use  Defense, not a right Baywatch by Soggydan
    18. 18. Public Domain No one owns it. Everything published before 1923. US federal works. Authors can choose.
    19. 19. Creative Commons www.flickr.com/search/advanced www.search.creativecommons.org
    20. 20. Creative Commons
    21. 21. Creative Commons Wiked cute cat by sskennel
    22. 22. Fair Use ExceptionPlease note “this language does not provide blanket immunity,” and “whether a use referred to in…Section 107 is fair use…depends upon the application of the determinative factors” Basic Brooks, Inc. v. Kinko’s Graphics Corporation, 758 F.Supp. 1522, 1529 (S.D.N.Y. 1991)
    23. 23. When Does Fair Use Apply? In determining whether the use made of a work is a fair use, consider these four factors:  The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;  The nature of the copyrighted work;  The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and  The effect of the use upon the potential market for or value of the copyrighted work. (Section 107 of US Copyright Law of 1976)
    24. 24. Additional Copyright Resources U.S. Copyright Office www.copyright.gov Blogger’s Legal Guide www.eff.org/issues/bloggers/legal/liability/IP UT Crash Course in Copyright copyright.lib.utexas.edu/ Interactive Copyright Lecture www.cyberbee.com/cb_copyright.swf Creative Commons creativecommons.org/
    25. 25. THE FTC: A FEW THINGS YOU MIGHT WANT TO KNOWDUNLAP CODDING, P.C.
    26. 26. When to disclose? Disclose if there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorsement  Youget product for free  A manufacturer sends you a sample  Advertiser pays you Don’t need to disclose if:  You paid for the product yourself  The free sample is one that anyone could have Airedale Presents from Oz obtained (e.g. grocery store samples) by Lulu Hoeller
    27. 27. How to Disclose “Company X sent me For twitter: (name of product) to  #paid try…” ad  #paid  #ad For videos My Ferret by silicon640c  Disclaimerat the beginning that says some products used were sent by the manufacturer
    28. 28. Consequences… Written Warnings Monetary Fines Money by AMagill
    29. 29. Additional FTC Resources FTC.gov  FTC Facts for Business  16 C.F.R. Part 255  FTC Videos of Endorsement Revisions Caught Surfin Flickr by derekGavey
    30. 30. Any questions? Question by Horia Varlan
    31. 31. © 2012 Dunlap Codding, P.C. 1601 NW Expressway, Suite 1000 Oklahoma City, OK 73118405-607-8600 / 405-607-8686 facsimile www.dunlapcodding.com ecampbell@dunlapcodding.com Thank you!

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