- Why Join the Fight?
- Legal Liability Issues
- Bloggers as Journalists
- Other Legal Issues
- Index of All Questions
- Additional Resources
The Bloggers' FAQ on Intellectual Property addresses issues that arise when you publish material created by others on your blog.
Questions About Copyright
I found something interesting on someone else's blog. May I quote it?
Yes. Short quotations will usually be fair use, not copyright infringement. The Copyright Act says that "fair use...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." So if you are commenting on or criticizing an item someone else has posted, you have a fair use right to quote. The law favors "transformative" uses — commentary, either praise or criticism, is better than straight copying — but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as "transformative." The blog's author might also have granted you even more generous rights through a Creative Commons license, so you should check for that as well.
What is fair use?
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 Published or unpublished? Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.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.
May I freely copy from federal government documents?
Yes. Works produced by the US government, or any government agency or person acting in a government capacity, are in the public domain. So are the texts of legal cases and statutes from state or federal government. Private contractors working for the government, however, can transfer copyrights to the US government.
Am I free to copy facts and ideas?
Yes. You are free to report the facts and ideas embodied in another person's article or web page. Copyright only protects the expression — the combination of words and structure that expresses the factual information — not the facts themselves.
How does a Creative Commons license help?
Creative Commons licenses provide a standard way for authors to declare their works "some rights reserved" (instead of "all rights"). If the source you're quoting has a Creative Commons license or public domain dedication, you may have extra rights to use the content. Licenses don't trump fair use, but if you want to do more than fair use allows, look at the terms of the license to see what it permits and what, if anything, it requires you to do in return. The attribution license for example, lets you copy, distribute, and display a work so long as you name the original author. Share-alike lets you make derivative works so long as you use the same license for your re-mix. A work in the public domain is no longer under copyright, so you can use as much as you want in any way you like.
I'd like to let other people copy from my blog. Can I license it?
Sure. The Creative Commons licenses provide several copy and share licenses complete with legal code, computer code, and a human-readable declaration and graphic to let others know that they're invited to copy and share. You can choose whether to require attribution, permit commercial use, or allow modifications. If someone wants to do more than is permitted by fair use or the terms of your license, they can still contact you for permission. See Creative Common's licensing page for more information, or generate your own license.
If a reader comments on my blog, does she license the rights to me?
When a person enters comments on a blog for the purpose of public display, he is probably giving an implied license at least for that display and the incidental copying that goes along with it. If you want to make things clearer, you can add a Creative Commons license to your blog's comment post page and a statement that by posting comments, writers agree to license them under it.
Can I "deep link" to someone else's website or blog post?
Yes. Most people are happy to have other websites link to them. Indeed, "permalinks" for each blog post, to which others can link directly, are one of the features that have helped blogs and blog conversations take off. But some website owners complain that deep links — links that lead readers to an internal page on a website — "steal" traffic to the homepage or disrupt the intended flow of their websites. For example, Ticketmaster has argued that other sites should not be permitted to send browsers directly to Ticketmaster event listings. Ticketmaster settled a claim against Microsoft and lost a suit it had brought against Tickets.com over deep linking. See Ticketmaster v. Tickets.com.
When can I borrow someone's images for my blog post?
Images are subject to the same copyright and fair use laws as written materials, so here too you'll want to think about the fair use factors that might apply. Is the image used in a transformative way? Are you taking only what's necessary to convey your point? A thumbnail (reduced-size) image, or a portion of a larger image is more likely to be fair use than taking an entire full-size image. If you want to go beyond fair use, look for Creative Commons licensed images.
I want to parody someone. Can I use some of their images and text in my parody?
Yes, parody is recognized as a type of fair use, like other commentary and criticism, and courts recognize that a parody must often take recognizable elements from the work it comments upon.
Courts do distinguish parody from satire. Parody copies from the object it mocks, while satire uses recognizable elements from the original work to mock something else or society in general. Parody gets broader fair use leeway than satire. If you want to make fun of Roy Orbison by changing "Pretty Woman" to "Big Hairy Woman," that's non-infringing parody; but if you make fun of the O.J. Simpson trial using Dr. Seuss illustrations and rhymes, that's satire and in one famous case, it was found to be infringing (Campbell v. Acuff-Rose, Dr. Seuss Enterprises, L.P. v. Penguin Books U.S.A., Inc.).
Questions about the Digital Millennium Copyright Act (DMCA)
My ISP received a DMCA complaint about my weblog. What does that mean? Can I do anything about it?
The Digital Millennium Copyright Act, 17 USC § 512, 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. The DMCA does not make ISPs liable if they do not remove content, but gives them a strong incentive to take the content down. That in turn gives those who want your material removed from the Net a strong incentive to make claims of copyright infringement.
If you get a DMCA takedown notice from your ISP, but you believe the material you posted does not infringe copyright, you have the option to counter-notify. An ISP can put the material back up after a counter-notification and still keep its immunity from liability. If you are harmed by an erroneous takedown demand, you can even use the DMCA's section 512(f) to sue back.
What are the rules for filing a DMCA notification?
In order to have an allegedly infringing website removed from a service provider's network, or have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:
- The name, address, and physical or electronic signature of the complaining party [512(c)(3)(A)(i)]
- Identification of the infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].
- Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
- A statement by the copyright holder of a good faith belief that there is no legal basis for the use complained of [512(c)(3)(A)(v)].
- A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the copyright holder [512(c)(3)(A)(vi)].
A service provider is not required to respond to a DMCA notice that does not contain substantially all of these elements.
What are the counter-notice and put-back procedures?
The DMCA provides an opportunity for you to counter-notify, to tell
your ISP that the material in question is not infringing. Unless the
copyright claimant brings a lawsuit within 10 business days, the ISP
can put back the material and still remain immune from liability. A
form for creating your own counter-notification is online at http://www.chillingeffects.org/dmca/counter512.pdf
A proper counter-notice must contain the following information:
- The subscriber's name, address, phone number, and physical or electronic signature [512(g)(3)(A)]
- Identification of the material and its location before removal [512(g)(3)(B)]
- A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
- Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]
Can I sue if my site is wrongly taken down?
Yes. Section 512(f) of the DMCA creates liability for "Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification." If you were harmed by an improper takedown, you may be able to sue the person or company who sent the takedown demand for DMCA misuse under Section 512(f), and recover damages and your attorneys' fees. See EFF case Online Policy Group v. Diebold.
When can I claim the safe harbor for comments others post to my blog?
If you're concerned that people might post copyrighted material to your blog, you might want to be able to use the DMCA safe harbor yourself. You too can be a "provider of online services" — all you need to do is designate an agent for notification with the Copyright Office. The safe-harbor provision requires that providers have a policy against repeat copyright infringement by their "subscribers and account holders." If you have no subscribers or account holders, that policy can be as simple as "If we become aware that one of our users is a repeat copyright infringer, it is our policy to take reasonable steps within our power to terminate them."
I'm a music blogger, and I'm concerned that my blog will be taken offline by bogus DMCA notices. What extra steps can I take to protect myself?
Bloggers who write about music regularly and include links to music in their posts should read Practical Advice for Music Bloggers Worried About DMCA Takedown Censorship.
More information on the DMCA safe harbors:
Questions About Trademark
I want to complain about a company. Can I use their name and logo?
Yes. While trademark law prevents you from using someone else's trademark to sell your competing products (you can't make and sell your own "Rolex" watches or name your blog "Newsweek"), it doesn't stop you from using the trademark to refer to the trademark owner or its products (offering repair services for Rolex watches or criticizing Newsweek's editorial decisions). That kind of use, known as "nominative fair use," is permitted if using the trademark is necessary to identify the products, services, or company you're talking about, and you don't use the mark to suggest the company endorses you. In general, this means you can use the company name in your review so people know which company or product you're complaining about. You can even use the trademark in a domain name (like walmartsucks.com), so long as it's clear that you're not claiming to be or speak for the company.
Since trademark law is designed to protect against consumer confusion, non-commercial uses are even more likely to be fair. Be aware that advertising may give a "commercial" character to your site, and some courts have even gone so far as to say that links to commercial sites makes a site commercial. (See PETA v. Doughney)
Can I use a trademark in my blog's name or in the title of a blog post?
Yes, if it is relevant to the subject of your discussion and does not confuse people into thinking the trademark holder endorses your content. Courts have found that non-misleading use of trademarks in URLs and domain names of critical websites is fair. (Bally Total Fitness Holding Corp. v. Faber, URL http://www.compupix.com/ballysucks; Bosley Medical Institute v. Kremer, domain name www.bosleymedical.com). Companies can get particularly annoyed about these uses because they may make your post appear in search results relating to the company, but that doesn't give them a right to stop you.
Sometimes, you might use a trademark without even knowing someone claims it as a trademark. That is permitted as long as you're not making commercial use in the same category of goods or services for which the trademark applies. Anyone can sell diesel fuel even though one company has trademarked DIESEL for jeans. Only holders of "famous" trademarks, like CocaCola, can stop use in all categories, but even they can't block non-commercial uses of their marks.
More information on trademark:
Questions About the Right of Publicity
What is a right of publicity claim?
The right of publicity is a claim that you have used someone's name or likeness to your commercial advantage without consent and resulting in injury. The plaintiff generally must prove that you're using their image or likeness for advertising or other solicitations. Freedom of speech rights protect your use of a public figure's name and likeness in a truthful way, but you can still be liable if a court determines that your use implied a false endorsement. Here are a few examples of cases where the right of publicity was at odds with the Constitution.
- A newspaper's 900 number survey to determine the favorite New Kid on the Block was found to be a constitutionally protected use of the band member's name
- A newspaper's sale of a poster reproduction of its front page depicting Joe Montana was determined to merit protection under the First Amendment
- A commercial featuring a robot resembling game show hostess Vanna White was found to infringe her right of publicity