Blogging is growing more ubiquitous.  It’s a great way to increase your company’s profile and build awareness.  Of course, as with many public activities, there are potential legal pitfalls that can snare unwary bloggers.  Fortunately, if you are aware of the law and act accordingly, you can reduce your risk of future liabilities.  Issues related to defamation law were previously addressed in a prior Legal Insights article.  This article will look at the rules that apply when you quote another’s words or use another’s materials (e.g. photographs or video clips) in you blog.  This is generally governed by Copyright law.

An Overview of Copyright Law: Is it “Right” to “Copy”

Let’s say you come across an article, essay or editorial that you find interesting and want to discuss it on your blog.  Assuming the article has been copyrighted, the “owner” of that article (typically the author or the publication in which the article appears) has a number of exclusive rights under the Copyright Act, including:

1. •Reproduction Right -- to make copies of the original work;
   

2. •Distribution Right -- to sell or otherwise distribute copies to the public;
   

3. •Adaptation Right -- to create new works (called derivative works) based on the original; and
   

4. •Exhibition Right -- to publicly display a work (in a museum or online) or perform a work (such as a script).
   

Generally, the owner of a copyrighted work can control and protect all aspects of how that work is used, and you cannot use it without the owner’s permission. 

The Fair Use Exception: Your Right to Copy

Of course, if there were no exceptions, no one could ever quote another’s writings without permission.  Fortunately, the Copyright Act states “fair use [of copyrighted works] for purposes such as criticism, comment, news reporting, teaching…or research is not an infringement of copyright.”  Therefore, if your use of copyrighted material falls under a “fair use” exception, you will be able to reproduce it in your blog.

Unfortunately, there are no hard and fast rules in this area.  Four factors have emerged as the criteria in determining if your use of copyrighted material is “fair” and therefore permissible.  Judges have a great deal of discretion when deciding a fair use lawsuit, so it pays to be conservative. The four factors that are evaluated in a fair use determination are:

1. 1) The purpose and character of your use.  This is a primary indicator of fair use. If you transform the protected material by adding (i) new expression or meaning, (ii) new information, (iii) new aesthetics, (iv) new insights, (v) new understandings, or (vi) another transformative original aspect, it will be more likely to be deemed a fair use than if you merely copied the work verbatim.  Therefore, avoid quoting in your blog to merely state a point that you could make yourself.  It is better to use quoted material as a spring board to discuss undeveloped topics or to point out other considerations.
   

2. 2) The nature of the copyrighted work.  It is in the public interest to disseminate facts and information, so you have more liberty to copy from factual works than you do from works of fiction. In addition, you will have a stronger case for fair use if the material copied is from a published work than an unpublished work. An author has the right to control the first public appearance of his material.
   

3. 3) The amount and substantiality of the portion taken.  The less you take, the more likely that your copying will be permissible. However, if the portion taken is the “heart” of the work, the percentage you use will not matter. You should refrain from reproducing the most memorable aspect of a work.
   

4. 4) The effect of your use upon the potential market. Avoid uses that may reduce income to the copyright owner or undercut the market for the copyrighted work. For example, posting copyright protected advice in your blog that the original author is selling will probably not be seen as a fair use and thus, will probably subject you to a lawsuit.
   

Seven Guidelines to Reduce Your Risk of Liability

To help you avoid some common misconceptions or to prompt you to take some extra precautions, I am offering the guidelines below:

1) These rules apply to much more than just textual writings. The Copyright Act applies to any work "fixed in a tangible medium of expression." This includes paintings, photographs, charts, designs, comics, drawings and other images. The Act also applies to musical notes, lyrics, vocalizations, musical performances and other melodies or sounds.  If a work can be pasted, streamed or embedded in your blog so your readers can see or hear it, chances are, the material will be subject to copyright.

2) The lack of a copyright message or copyright symbol does not mean the work is unprotected. Until 1977, a copyright notice was a requirement for protection under the Copyright Act.  Since then, every published work (be it on paper or digital media) automatically gets copyright protection, regardless of whether the owner has affixed the © symbol to the material.  Do not assume that any work is freely available.

3) If you credit the author, you are still liable for copyright infringement. There is a misconception that you can use protected works as long as you credit the author. You can only use copyrighted material if you have explicit permission or under “fair use” principles.  Giving the original author credit will relieve you of liability for plagiarism, not copyright infringement.

4) Non-commercial use of the work will not protect you from infringement. There is no requirement that your use of a work be for commercial purposes before you can be sued for infringement.  If your infringing use impairs the ability of the owner of the work to exploit it in the marketplace, you may find yourself defending a lawsuit in court.  In fact, you can be sued even if there is no commercial element at issue.

5) Removing the infringing material at the owner’s request will not absolve you of your prior infringement.  You do not get “free” use of material until the copyright owner discovers that you are using it. Taking down copyrighted material will not relieve the initial infringement, and you can still be sued.  Don’t be confused about the protections afforded to internet service providers in the Digital Millennium Copyright Act (DMCA).  The DMCA applies to infringing material posted on your website by third parties, it does not shield you from liability if you were the source of the infringing material.

6) If you must reproduce works, try to use materials that are not subject to Copyright.  There are many online resources that contain hundreds of works that are in the public domain, meaning these works are not subject to anyone’s copyright.  Depending on the nature of your blog, these materials can be a viable alternative to copyrighted material.

7) When in doubt about fair use - Get Permission!  If you are unsure whether your use of copyrighted material is fair under the law, contact the copyright owner and ask for permission to reproduce the material you want to display in your blog.  This eliminates the fair use analysis completely, allowing you to reprint the material without concern.  Of course, you run the risk that the owner will deny permission, but this is certainly less troublesome than a future lawsuit.

Conclusion

It is best to avoid directly quoting or reproducing works made by others in your blog. Focus on underlying facts and ideas instead. Remember, copyright law protects only the “expression” of facts and ideas, such as the language, form and structure within a document.  The facts and ideas themselves are not protectable. You are free to use facts, ideas and even opinions reported in articles or websites, so long as you do so in your own original words. If you must reproduce material written by others in your blog, try to make sure you make “fair use” of it, as set forth in the law. If you are unsure about duplicating an original work, you should consult an attorney with experience in intellectual property matters.

© Clem Turner, 2010. All rights reserved.