IT'S COPYRIGHT TIME AGAIN.
This post inspired by Robert Lockhard, Bloggers beware! Copyright battle might be coming.
Fair Use? Or, an invitation to a Cease and Desist Notice and Demand for Damages?
From Title 17 of the U.S. Code: Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
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the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
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the nature of the copyrighted work;
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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. More. . . .
"Don't stake yourself out" is one of my favorite warnings to folks who are performing acts that make
them vulnerable to law suits, loss of negotiating position, loss of money, loss of almost anything.
This phrase has been in my lexicon since reading the wonderful book Centennial by James Michener. This classic Michener chronicles Colorado for the past 135 million years from the era of the dinosaur to the time of publication about 1976. Goodness, was it that long ago. How time flies. However, this book is timeless and an adventure in good reading and writing. Michener is always a good read.
One chapter in the book writes about the Native Americans in the Colorado area before it was settled by whites from the East. The Plains area of Colorado were dominated by the huge Buffalo herds thundering along and trampling anything and everything in their way.
As was their custom, when a member of the tribe became too old to hunt and "kill Buffalo", they would
go some miles away from the village and "stake themselves out" in the open field and wait for the thundering herd of Buffalo stampede.
DON'T STAKE YOURSELF OUT in the context of copyright infringement is fair warning to ActiveRain members who believe that the copyright doctrine of "Fair Use", permits a person to use a photo that the find on the Internet and use in an ActiveRain post to their blog and add a "credit" such as "photo owned by Joe Blow".
I'm no expert, but my reading of the Copyright Law leads me to believe that Fair Use permits the use only of short "snippets", perhaps 20-50 words quoted from the content followed by a link to the original article. Fair Use is the doctrine by which critics or news publications can print short snippets of a book, article, and not violate the copyright of the author.
HOW DOES ONE PUBLISH A SNIPPET OF A PHOTOGRAPH??
ORPHAN WORKS. A better defense in the case of copyright violation litigation would be the Orphan Works doctrine. A photo or article whose ownership or authorship cannot be found could be a defense. However, the defendant would have to document a vigorous attempt to identify the owner of the copyright.
ActiveRain has published guidelines warning members about the use of content, images and photos that
you did not write, create or shoot. See: "A Picture is Worth a Thousand Words? How About a Thousand Dollars?" Community Guidelines Re-Visited by Rich Jacobson, our venerable ActiveRain Community Builder.
ACTIVERAIN MEMBERS BEWARE: Best to look for reasons to NOT use the works of others rather than look for excuses about how you CAN.
ADDENDUM. I just pulled a paragraph from the Complaint for Damages filed in U.S. District Court in MD last week.
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Again, sage advice. Easier to just use the "don't use if you don't create" rule.