This is session is intended to help online publishers (which includes anyone from social media posters to those running websites) understand the Fair Use doctrine and how it fits in with Copyright law. It will specifically address both how fair use lets people legally publish content created by others, and how copyright protects content from being used illegally.

1. The Copyright Era Meets the
Open-Source World
@ellynangelotti
Faculty, Digital trends & social media
eangelotti@poynter.org

2. What’s Changing?

3. Disclaimer
• This is not specific legal advice, but legal
information.

4. Some Rules of Thumb
• When it comes to the law, “it depends”
– Gray areas are common
– Different facts change how the law is applied
• Common questions
– What is reasonable?
– What is foreseeable?
– What are my/my audiences expectations?

5. Just because you can,
should you?
• Legal vs. Ethical issues
– Gut check
– What are your values?
– Do you have a decision-making process?
• Would you/could you share your process?

6. Legal Mythbusters
If I attribute something, then I
am not infringing on copyright

7. Not necessarily
• Plagiarism is an academic and journalistic
concept.
• Copyright infringement isn't the same as
plagiarism.
• Attribution may help with fair use
argument

8. Legal Mythbusters
If someone embeds my video
to their site, they are violating
my copyright.

9. Most likely not
• Depends on the terms of use of the site
• By permitting users to embed the video,
you’re granting a limited license.

10. Legal Mythbusters
If I’m republishing news, I’m
protected under fair use

11. Maybe
• Depends on the terms of use of the site
• Elements
– 1. Purpose and character of the use
(criticism, comment, news reporting,
teaching, scholarship, reserach, etc)
2. Nature of original work (Published or
unpublished, factual vs. creative)
3. Amount used in relation to work as a whole
4 Effect on market for original work.

12. If a work doesn’t have a ©,
then it’s in the public domain.

13. No.
• Copyright springs into existence when a
work is fixed in a tangible medium of
expression.
• Copyright notice isn’t required.
– But you should still use it
• © 2011 Poynter

14. What is Copyright?
• Grants authors exclusive rights to works
and the rights to:
– Reproduce
– Distribute
– Perform
– Display
– Transfer rights
©

15. What Copyright Isn’t
• Not subject to copyright:
– Idea
– Concept
– Discovery
– Laws
– “Fair Use”
– “70 years rule”

16. Copyright Era vs.
Open-source World
• Copyright-era language
– Scoop, byline, beat, etc.
• Open-source language
– Collaboration, retweeting, embeddable
content, etc.

17. Copyright Issues in Social Media
• Typically the original author owns the
copyright (should clarify this with
contract).
• Some posts do not meet minimal creative
threshold and may not have copyright
protection.
• Aggregation can bring up copyright issues
.

18. Fair Use Factors
• Subjective balancing test
• Four areas
– Purpose and character
– Nature of work
– Amount of work used
– Market value effect

19. Fair Use
• Purpose & character (in the public interest)
– News reporting
– Non-profit
– Adds a new meaning to the original work

20. Fair Use
• Nature of the work
– Creative work is more protected than fact-
based work

21. Fair Use
• Amount of work used (relative)
– Not necessarily based on proportion
– Look at the “heart” of the work
– Too little for fair use: “de minimis”

22. Fair Use
• Market value effect
– Most important factor

23. Attribution/Disclaimer
• Will not protect you from a copyright
claim*
* Unless the owner has granted rights via
Creative Commons

24. Shuttle Launch (St. Pete Times)
• Photo taken by
@stefmara (Stephanie
Gordon)
• Times paid $100 to
use the photo
• Twitpic users retain
copyrights to work

25. Example:
Copyright issues with online images

29. Embeddable Content
• <object width="425"
• What is an embed? height="350"><param
name="movie"
• Embed = in-line link value="http://www.youtube.co
m/v/8-5INcUuoEs"></param>
– No content is stored <param name="wmode"
on your server. value="transparent"></param
><embed
src="http://www.youtube.com
/v/8-5INcUuoEs"
type="application/x-
shockwave-flash"
wmode="transparent"
width="425"
height="350"></embed></obj
ect>

30. Embeddable Content
• No direct infringement
– Perfect10 vs. Amazon
• Contributory Liability
– Don’t embed videos that
are obvious infringing
– Consider removing
videos once you have
notice it’s infringing
• Extra protection:
Register as a
“Copyright Agent”

31. Online Commenters
• “Notice and takedown”
– DCMA protects publishers
• You will generally not be liable if you promptly
take down a comment after being notified by a
copyright owner

32. Copyright Issues in Linking
• Deep Linking: Putting a link on your site
that opens a specific page on another
site.
• Inline Linking: Embedding HTML code on
your site so it displays content directly
from another site.

33. The Copyright Balancing Act
• Authors rights / Public rights
• Innovation / Fair Use
• Copyright era / Open-source community
• Commercial benefit / Contributions to the
public domain
• Incentive to create new work / Build upon
the works of others
• Stealing content / Promotional value

34. Avoiding Copyright Landmines
• Create your own work
• If you do use others’ work …
– Ask for permission
– Give credit
– Use only what is necessary
– Ensure that it is fair use

35. For More Information
• Section 512 of the Digital Millennium
Copyright Act
• CDA 230 (Section 230 of the
Communications Decency Act)

36. Resources
• Electronic Frontier Foundation
– http://www.eff.org/
• Reporters Committee for the Freedom of the
Press
– http://www.rcfp.org/
@ellynangelotti
• Online Media Law: The Basics for Bloggers and
Other Publishers
– http://www.newsu.org
• Citizen Media Law Project
– http://www.citmedialaw.org/

37. The Copyright Era Meets the
Open-Source World
@ellynangelotti
Faculty, Digital trends & social media
eangelotti@poynter.org