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Blogging Bertha and The Fair Use Doctrine II

If you haven't read part one of this post, please check it out so that you can be brought up to speed.

In the comments to that post, Broker Bryant, TLW and a couple of other folks disagreed with me regarding the use of a copyrighted image that I used in my post, "Twas The Evening After Christmas". Out of respect, I pulled that image, but disagreed with the contention that I didn't have a right to use that photo in the context that I did.

I also left a fairly lengthy comment on the post stating why I disagreed with them. After proofreading the comment, I thought that it might be of some use to further the discussion on the use of copyrighted material in general and the "Fair Use" doctrine specifically, if I were to expand that comment into a post unto itself.

Not that people don't read the comments, but it's probably more likely to get noticed as a separate post and I sincerely feel that this is a discussion worth having. Also, I was hoping that maybe somebody who IS an expert on this subject might weigh in on the discussion. Specifically, I'd love to hear from a copyright lawyer or two, so if you know anybody who practices in this field, please feel free to pass these postings along to them in order to see what they think.

That Said, Here Goes Part II

I'm not arguing that I should have or shouldn't have used the picture. The Federal copyright law is very clear when it states that the copyright is not all inclusive. Here is the exact wording, as presented in the US Copyright Office Website:

"One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.”

Furthermore, I used the photo to poke fun at Broker Bryant and TLW (by extension). This is known as a "parody" The copyright office specifically addresses this use in parody in publication FL 102:

"The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright
Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in
a review or criticism for purposes of illustration or comment; quotation of short passages in a
scholarly or technical work, for illustration or clarification of the author’s observations; use in
a parody of some of the content of the work parodied;" (emphasis added)

My posting was clearly using TLW's picture of Blogging Bertha as a parody of Broker Bryant (a well know blogger here on AR) and therefore, in my opinion, would fall under the fair use doctrine in title 17, sec. 107 of the US Copyright Act.

Bryant pointed out that I had used content from a member's only post in a public post and this is how I responded: "You got me on the "member's only to public post". Actually, I didn't read the post, I just snagged the picture in order to poke fun at you specifically and bloggers in general. I didn't see that it was a "member's only" post and the guild lines do state that I shouldn't have done this.

While I did indeed do this and for this I do apologize, images of you dressed as "Blogging Bertha" are readily available in public domains (brokerbryant.wordpress.com blogging bertha does the hula, Blogging Bertha Claus) and I think that the fact that these images have been made public prior to my doing so would negate any harm done by the fact that I did take the image that I used from a member's only post.

Actually, in order to illustrate my point regarding the fair use of a copyrighted image, I could have legally used images of Blogging Bertha here in this comment under the fair use clause. It would have been covered since I was using your image as an illustration of my point.

Now regarding your point that you specifically stated in the blog that I lifted the picture from that

"Video and picture are the property of TLW and ROAR! Productions. If you take it she will shoot you."

I respectfully disagree that this statement negates the "Fair Use" rule. Well, shooting me would negate it for me personally, but it does not negate the fair use rule in that Federal Law would supersede any restrictions that you would place on your content. That is, I still have the right to use your copyrighted images in a parody of them or as an illustration of my point when discussing them. When you place something in the public domain, your rights are indeed limited. This isn't just something that I made up. It's the federal law!

If I took your copyrighted images and made tee-shirts out of them and sold them, then you would have a case. If I claimed that I had created them, then you would have a case. If I blew them up and pasted them to the outside of my house as decoration, then you would have a case. But if I use them to poke fun at you, then you DON"T have a case.

Now, I don't hold myself out to be an expert in copy right law and I wanted to make sure that I wasn't barking up the wrong tree here, so I contacted the Federal Copyright Office and while they don't make specific rulings, they did confirm to me that my interpretation of the fair use doctrine was pretty damn close to accurate. (I was wrong on one thing - that was in regards to a still photo of a fictional character can indeed be interpreted as a "complete" work in and of itself).

I also read several legal articles on the topic and.while anybody can pretty much sue anybody over anything, what I took away from these articles was that if you guys were to sue me you would have to prove at least one of several things in order to be able to stop me. The two main points of contention would be:

1) That I was using your image for direct economic gain. i.e. I was making money from the use of your copyrighted image; or

2) That the image wasn't being used as a parody or as an illustration of a point or for educational purposes.

Again, I'm not a legal expert by any means, but from what I've read I'm pretty confident that I have a pretty through understanding of the fair use doctrine.

TLW: To answer your question, no I don't think that I'm wrong. Again, I understand your position, but I respectfully disagree with it. As you reserve your rights to your creative images, I reserve my right to poke fun at them.

To Both TLW and BB: I honestly didn't mean to hurt anybody feelings or to "steal" anything that you owned. I was simply teasing with you guys. The use of the image isn't really that important to me, but my right to parody is important to me.

If we can't make fun of someone or something then we all lose. That's why there is a fair use doctrine. I hope that you understand where I'm coming from.

R.B. "Bob" Mitchell

ValueList Real Estate Services, Inc.

Bob Mitchell is the president of ValueList Real Estate Services, Inc., St. Louis' largest discount/full-service real estate and mortgage company. To find out more about Bob, ValueList or our flat-fee listing program please feel free to visit our web page, valuelistre.com

Posted by Bob Mitchell - Realtor St. Louis on 12/27/2007 02:07 PM

Comments (17)

st louis real estate thoughts, blogging bertha, fair use doctrine, use of copywritten material

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17 Comments on Blogging Bertha and The Fair Use Doctrine II

DEC

2007

I dunno... I'd be cautious...

I had to get permission from the Sara Lee corporation to use my tag line "Nobody Sells It Like Sara Lee!" Just to verify there were no infringments.

True, my name is Sara Lee therefore I own it, but I would not dare to use Nobody does it like or Nobody Doesn't Like... that would be a clear violation of copyright and I would be warned and sued if I continued the use.....

I understand where you're coming from especially with big companies who can out spend you on lawyers. Actually, I had the opposite thing happen with my company and our copyrighted material. There is another company here in St. Louis with a very similar name, ValuePlus real estate.

Not only are they in the same market as we are, they put their name in one word with the "P" capitalized and the "Plus" part of their name in a similar color to how we do ours in our logo. I ran it past our attorney and he told me that if I had a whole bunch of money, I could make them change their name or at least make them change how it was presented. I really don't bump into them that often and they are on the fringe of our market area, so I decided to leave it alone.

Thanks for the comment.

Bob Mitchell

ValueList Real Estate Services, Inc.

DEC

2007

Bob, fair use is a VERY slim reed upon which to lean in a court of law. Also, I doubt that you could claim sufficient justification under the requirements that ARE there. Does your use qualify?

“quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

The decision would be made by the court in each individual case under a claim of fair use. At which point, your use without permission being a matter of public record, you'd be in the position of proving your innocence.

By the way, "available on the web" does not mean "not copyrighted", though some seem to think so. Pretty much everything is copyrighted these days, from the moment of creation - if it doesn't have an indicator that you CAN use it, just don't, okay?

However, the bottom line is permission. Copyright is all about the creator's control over their own creation. If you ask permission and it is given, then all is good. If you for whatever reason don't ask permission (and "but it's HARD" or "they might say no!" is explicitly NOT a defense, per the U.S. Copyright Office), you can pretty much assume that you're in violation unless it is your business to write reviews or some such and you are thus well up on copyright law or your employer has a legal department that is.

And it comes right down to, why didn't you ask permission? It's not like you couldn't find the original creator of the work to ask them. Didn't your mother teach you not to use the property of others without asking?

As for TLW's statement about it being hers, it clarifies, but it is NOT necessary by law. Hasn't been since 1989, I believe it was - long time, anyway. Registration isn't required until and unless she decides to sue you.

No, I'm not an attorney of any kind, but I do have some editorial functions where I have to stay on top of this, and I do hang out on a copyright list where the people who post (I don't) are intellectual property attorneys and listen to them discuss the fine points, just for my own edification.

Bob,

Fair use or not. In an environment as social as AR I would consider it in good taste to ask permission. There may as well be other ways to demonstrate the point of the article if permission was not given.

Controversy for the sake of controversy is not always that rewarding.

Bob,

Looks like you have done a lot of research on the topic and that alone is great for us readers ... by the way, I am reading this because BB suggested to read the entire blog in a blog he posted on 12/29/2007

My understanding of copyright material ... if it is on the web and is not marked as copyright then it is fair game. When I created my web-business, I could not launch until the format and equations were copywritten just in case someone wanted to take the idea.

Great post.

DEC

2007

Instead of using the photo, you could have asked to borrow the outfit.

That would have been funny.

Wow! Thanks for all the comments! I'm glad that these posts have created a discussion here and while the issue obviously isn't settled, at least it's got people talking about it!

Tricia: I agree that fair use is a "slim reed", but disagree with you that my use of it wouldn't qualify. The right to parody something, as I was doing by using TLW's picture of Broker Bryant dressed as their fictional character "Blogging Bertha", has been well established. If you've ever watched Saturday Night Live make fun of someone or something, then you've seen the fair use doctrine in action.

I just watched a very entertaining video called the "McDonald's Rap". In it the producer of the video is shown sitting next to Ronald McDonald, consuming McDonald's food that bears copyrighted logos, sitting in a McDonalds, etc. How can he "get away with this"? Because it's covered under "fair use". If we couldn't use this type of material to poke fun, it would be much more difficult to convey the messages that parody is intended to convey.

Regarding my defense if TLW and/or Broker Bryant were going to sue me, of course I would have to defend myself, but the burden of proof would be on them to prove that my use WASN'T covered under fair use. At least that is what the lady at the Copyright office told me. In my personal experience, as an expert witness in a couple of law suits, it's usually a bit of both. They would have to make the argument that it didn't and I would have to make the argument that it did.

You're right regarding internet images being copyrighted from their inception. That you don't have to label something as copyrighted in order for it to be copyrighted. That said, internet images are still subject to the limits upon copyright that all copyrighted works are. You still have the right to make fun of them!

Regarding my NOT asking for permission to use the image, two points;

1) TLW and Broker Bryant were the subject of my parody. It kind of loses something if you have to ask the subject of your parody for permission to make fun of them.

2) I was writing that post on the "Evening After Christmas" and it was time sensitive.

Herb: Look at my previous two sentences to see why I didn't ask permission.

Allen: It does not have to be marked as copy written in order to be copyright protected, therefore it is not fair game UNLESS your use falls under the guise of the fair use doctrine, which as pointed out in Tricia's comment is fairly limited. That said, if I wanted to use the picture of Blogging Bertha in a post as an illustration of the length's that some bloggers go in their blogs, I wouldn't necessarily have to ask TLW's permission to use it. It would probably be better if I did, but I wouldn't have to.

If I didn't ask her permission and she objected, she would be full well within her rights to attempt to get an injunction against my use, but the burden would fall upon her to prove her case...at least according to the Copyright office.

Amanda: That would be funny....

Again, thanks for the comments!

Bob Mitchell

ValueList Real Estate Services, Inc.

Bob, are you SURE you read the same material as I linked to? Never mind, I'm sure everyone else can read it for themselves and see what it really says.

By the way, the nice lady at the Copyright Office that you evidently called over the holiday weekend? Should have told you to talk to an intellectual property attorney with that question, because there's case law that I read just today (Appellate and Supreme Court level) that indicates that fair use has to be proven, not that the plaintiff has to disprove it.

Tricia: I read the article that you linked to and I think that it pretty much says that the fair use doctrine is not a cut and dry thing. One blog that I read from a former law professor and the copyright counsel to Google even went into how cases that were very similar were ruled on differently by different judges.

Regarding my call to the copyright office, it was during a business day and I have contacted a well known copyright attorney to ask her to review these blogs and give us her expert opinion on if I am right in my understanding of the fair use doctrine. The lady that I talked with at the Copyright office basically told me that I was pretty much right on in my understanding of it.

Regarding if the burden of proof would be on me or on the copyright holder, I'd guess that it would probably be a bit of both. They would have to make their case and I would have to defend my use. I think that this point is actually ancillary to the main jest of this conversation.

That would be: That a person's copyright rights, are not all inclusive! That a copy written photo, article, movie, CD, play, etc. etc. is subject to the fair use doctrine.

I acknowledge that it can be a slippery slope, but that does not mean that you can totally dictate how your copy written material is used.

Bob Mitchell

ValueList Real Estate Services, Inc.

DEC

2007

Bob- perhaps it may have been a wiser idea to ask first to avoid any hard feelings; especially in light of the post being made public.

I agree with Amanda- creating your own character would have been humorous.

I definitely didn't want to create any "hard feelings" and as I've pointed out, the picture of BB dressed up as Blogging Bertha was the perfect illustration of the lengths that people will go in their blogging (not that this is a bad thing). Personally, I try not to spend THAT much time blogging.

It would have been funny, but like I said, that takes time and effort!

Thanks for the comment

Bob Mitchell

ValueList Real Estate Services, Inc.

Well, you could spend just as much time blogging as it takes to generate your own content or get explicit permission to use the work product of others, couldn't you?

Why DIDN'T you ask permission to use it, Bob, legalities (which obviously we could argue until the cows come home and beyond) aside? Didn't the little box that comes up where you verify that you're not using any copyrighted material that you don't have permission to use give you pause?

JAN

2008

Tricia: As I've responded NUMEROUS times in these blogs, the reason that I didn't ask for permission was (1) BB was the target of my parody (that would be like Saturday Night Live asking permission to make fun of someone) and (2) my post was time sensitive in that it WAS the "Evening after Christmas" when I was writing it. Apparently these concepts are beyond your intellectual capabilities to understand.

Your insinuation that I was in some way attempting to "steal" BB and TLW's copyrighted material is ludicrous! BB reads and comments on my postings on a regular basis. It would be silly to expect to be able to steal their product and then not expect for him to notice his picture on my blog which I believe he subscribes to.

Regarding my generating my own content, I'll stand behind my over 200 postings, as well as my works that have been published nationally by Real Estate Today (Now Realtor Magazine), and locally in The St. Louis Business Journal, The St. Louis Post Dispatch, as well as the hundreds of other websites and publications that have picked up my work from the wire services.

Regarding the little box that says, "This is not my content but I have permission to repost it", my post was indeed MY content. The picture of BB was only a very small part of it and I REMOVED the picture when TLW asked me to. Not because I had to, but because she objected and I respected her wishes.

The fair use doctrine is a very nuanced part of federal law. If you read much on it, you'll see that even big companies like Fox and NBC have differences of opinion on it's applicability. Hell, the Federal Courts aren't even consistent in their rulings on it in that nearly identical uses of the doctrine have been ruled on differently.

I hope that I typed this response to your inquiry slow enough for you to understand it this time.

Bob Mitchell

ValueList Real Estate Services, Inc.

JAN

2008

Bob - Lots of interesting reading here between your two posts! I'll be watching this one...

Jackie

DEC

2010

Good morning Bob, not being an attorney but in law enforcement for 29 years are you prepared to pay an attorney in defense of whatyou think not the courts? If so continue on if not then before this ges out of hand leave things alone, your a big boy the decision is up to you.

James Dray aka Lawman...look at the dates. Big Boy Bob left this thing alone 3 years ago.

I'm curious to know what makes you think this has anything to do with law enforcement though.

Hi Bob.....This is an old post (wound), Bottom line...if I take a photo or create a Graphic image etc. It's mine.

People try and they do come up with lots of excuses why it's okay....The Public Availability etc does not allow anyone to copy or use a photo or art. Next time ask, most here would be pleased to allow(flattered) you to use their Photo or Graphic art or image

MERRY CHRISTMAS

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Bob Mitchell - Realtor St. Louis

Saint Louis, MO

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ValueList Real Estate Services, Inc.

Address: 4251 Martyridge, St. Louis, MO, 63129

Office Phone: (314) 231-5478

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A blog about St. Louis real estate and about real estate in general from a guy who has been selling real estate and doing mortgages since 1984. I'm also the owner of ValueList Real Estate Services, Inc. a discount real estate company serving St. Louis since 1995!

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