Blogging and Fair Use (Free Book Excerpt)

Adapted and excerpted from The Legal Side of Blogging for Lawyers by Ruth Carter, published by the ABA Law Practice Division.

People rarely blog in a vacuum. You write about things that inspire, intrigue, and provoke you personally and professionally. As a lawyer, your blog is an excellent place to react and respond to current events related to your practice areas. To that end, you may want to quote others’ blogs, news articles, books, and movies. It’s common to want to use other people’s content in your blog posts, but there is a right and a wrong way to do it under the Copyright Act.

When people talk about using other people’s content, the first thing they usually claim is “fair use.” The fair use doctrine gives you the ability to incorporate other people’s work in your work, but it’s a little complicated. Fair use does not give you permission to use another person’s work, but rather it gives you a defense that you can use if you’re accused of infringing on someone else’s copyright.

The fair use doctrine is an affirmative defense. When you claim that your copying of another’s work is fair use, you’re essentially saying, “Yes, I copied your work, but it’s OK.” When you rely on fair use to protect you, you always run the risk that the original author will claim that your use of his work infringes on his copyright and file a lawsuit. If that happens, you will have the burden of proving to the court that your use of the original author’s work was protected.

Fair use gives you the ability to copy someone else’s work if you build upon it with your own original thoughts or if you’re using it to inform or educate. Generally, you are allowed to copy someone’s work if you’re criticizing or commenting on the original work, writing the news, teaching, or participating in scholarship or research. Fair use is the reason book and movie reviewers can include quotes or images from the work they’re reviewing in their articles. It’s also why teachers can make multiple photocopies of otherwise copyrighted works for use in the classroom.

In regard to blogging and fair use, you can often copy a portion of someone else’s work into your blog under fair use if you add your own thoughts about the subject. It’s also good etiquette to include an attribution to the original author and a link to the original source, so your readers can see the copied portion in its original context. If you copy the exact verbiage of another’s work into your blog without adding any original thoughts of your own, that is likely copyright infringement and not protected by the Copyright Act because the copyright holder has the exclusive right to control where his work is reproduced. This is true even if you give an attribution to the original author.

If you are sued for copyright infringement and you want to claim that your use was protected by fair use, the court will consider four factors:

1. The purpose and character of the use

2. The nature of the copyrighted work that was copied

3. The amount and substantiality of the portion from the original work used compared to the whole copyrighted work

4. The effect of the use upon the potential market for or the value of the copyrighted work

The court may consider other factors if the facts of the case merit it. If you have added your own original expression to the original work, such as your opinion about the author’s work, the court may find that there is no copyright infringement and that your use is protected by fair use.

The court weighs all four factors in deciding whether your use qualifies as fair use; however, it mainly considers the effect on the potential market. The court is more likely to find that your use of another’s work constitutes copyright infringement when consumers view your work as a viable substitute for the original you copied. There is no way to know for certain if your use is protected by fair use until the case is evaluated by a court unless you have permission from the copyright holder to publish the work.

One of the landmark fair use cases involved the controversial band, 2 Live Crew. In the early 1990s, 2 Live Crew wanted to release a parody of “Oh, Pretty Woman” by Roy Orbison and William Dees. The band offered to give the original authors an attribution and pay a fee to use the song, but Acuff-Rose Music, Inc., which owned the copyright, refused. 2 Live Crew used the song anyway, and Acuff-Rose sued for copyright infringement.

The case was decided by the United States Supreme Court and 2 Live Crew won when the Court ruled that parodies were protected by fair use. A parody is unique in that it must imitate the original work to have the desired effect. You must walk a fine line between imitating enough to have the artistic effect you want but not copy the original so much that it constitutes infringement. In 2 Live Crew’s case, they added their original expression to the existing work and the market for their song was not the same market as the Roy Orbison version. No one would seek out a copy of the original song and accept 2 Live Crew’s version as a substitute.

The purpose of the fair use doctrine is to promote the creation of original works that transform others’ previous works. Copying an article, in part or in whole, on your blog, may be transformative enough to constitute fair use if you add enough of your own original thoughts to the copied portion. If you are going to do something like this, be aware of the possibility that your use may not constitute fair use but may be an illegal derivative work. If the portion you copied is a substitute for the original article itself, it’s probably not fair use.

When you’re selecting others’ work to use in your blog, be aware of entities that purchase copyrights from others and file copyright infringement claims against anyone who copies any part of the work they own. These entities are sometimes referred to as “copyright trolls” because they appear to exist solely to acquire copyrights that others are likely to copy content from, and then to bring copyright infringement cases against anyone who uses any of this content in any way. One such entity to do this in recent years was Righthaven. Righthaven purchased the copyrights to the Las Vegas Review Journal. Righthaven sued blogger Michael Nelson when he copied a portion of an article from the Las Vegas Review Journal on his blog.

Nelson responded to the lawsuit by arguing that his use of the article was protected by fair use. The court evaluated the case using the four fair use factors. The first fair use factor, the purpose and character of Nelson’s blog, favored Righthaven. The purpose of Nelson’s blog was to create business for himself, which is a commercial purpose. The other fair use factors favored Nelson’s position. Nelson copied only eight sentences of a thirty-sentence article and the portion that he copied contained only facts about a new federal housing program. The court also found that Nelson’s use of the copyrighted material would not have much effect on the market for the news article because none of the original author’s commentary was copied. Therefore, Nelson’s use of the article had little or no impact on Righthaven’s ability to make money off the article and was not a substitute for Righthaven’s article. The court held that Nelson’s use of Righthaven’s work was fair use and dismissed the case.

I’ve shared the Righthaven case with you for three reasons:

1. To warn you about copyright trolls and what they do

2. To show you that you can win a case against a copyright troll

3. To demonstrate the challenge and hassle that can accompany defending yourself against copyright infringement claims with a fair use argument

I don’t want to discourage you from building on others’ work, but I do want to encourage you to be thoughtful about whose work you copy. If you hear that a copyright troll has bought the rights to someone’s content, you probably should stay away from it. Find other sources to quote. If you rely on the fair use doctrine to protect your ability to copy others’ work, you may have to go to trial to win your case. Because the court has to evaluate your use using the four fair use factors, it is less likely that the case will be settled before trial.

Another word of caution: if you have ads on your blog, even if you don’t earn much money from them, your use of another’s work could be characterized as commercial. In the event that you are accused of copyright infringement and you argue that your use is fair use, the fact that you make money off your website could be a strike against you in the eyes of the court. The original author could argue that you copied his work in order to get more hits on your blog, and thus make more money from your ads. The more money you make off that particular blog post, the more likely the court will think that you copied another’s work solely for your own financial gain.

Additionally, if your blog is part of your law firm’s website, your blog exists for the commercial purpose of creating business for the firm. You need to be extra careful when using and building upon others’ material.

Creative Commons Images

Visual images can enhance the message conveyed in your blog posts. One of the best sources for images is Creative Commons.  Creative Commons provides licenses for images and other content where the artist retains the copyright to his work but grants everyone certain permissions to use his work. Most licenses require you to give an attribution to the original artist if you use his work. Some licenses prohibit you from using the artist’s work for commercial purposes, and others prohibit you from modifying the original work. The license may also come with a share-alike provision. If you use the work, you must offer it, with the same license provisions, to other people who wish to copy it. If you use an image in a way that does not comply with the requirements of the license, you will likely be committing copyright infringement.

Thousands of images are available with Creative Commons licenses, so there is no reason for you to have boring images on your blog, or a blog post without an image.

When you select images for your blog from Creative Commons, always pick images that have a license that allows you to modify and commercialize them. This license gives you the most freedom. You want to have the ability to modify images so you can crop them to fit your needs. If your blog is part of a law firm’s website, it has a commercial purpose; therefore, you need images that you can commercialize. If you own a legal blog that is separate from a law firm’s website, you may not be making any money from it now, but you might in the future. You don’t want to have to take the time to review every image on your website to determine which images you have to replace so you can commercialize your work.

If you cannot find the image you want under Creative Commons, you can purchase the right to use other photos through companies like iStock, Shutter Stock, and Getty Images.

When In Doubt, Ask Permission

If there is an image or any content that you want to use that doesn’t come with a license for you to use it on your blog, you can always ask the copyright holder for permission to use his work. I know incredible photographers who usually post their work on Flickr with all their copyrights reserved. They have never said “no” when I’ve asked them if I could use a photo on my blog. They simply require that I give them an attribution and a link to the original photo, which I’m always happy to do. Three photographers have given me permission to use any of their work in this way, regardless of what license they attach to their work on Flickr.

When I was in law school, I was frequently unhappy with the school’s administration and I would write about my dissatisfaction on my blog. I wanted to include a picture of the dean of the law school at that time. I didn’t have a picture of him, and I knew I’d be committing copyright infringement and face at least a cease-and-desist letter if I used a picture from the school’s website. I did a search on Flickr and found one image of the dean of my school, but it was posted with all rights reserved. I sent a message to the copyright holder and told him that I was writing a blog about the dean and asked if I could use his image. The owner responded that I could use it and told me what attribution he wanted to appear with it. The copyright owner never asked about the details of the post, and never said anything to me that indicates that he saw or was unhappy about the post where the image appeared.

For more blogging advice from Ruth Carter, order a copy of  The Legal Side of Blogging for Lawyers, now available from the ABA Law Practice Division.

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