Copyright, Fair Use and Idea Theft  

Seriously_Real 48M
1458 posts
5/21/2006 9:50 pm

Last Read:
8/16/2006 2:23 pm

Copyright, Fair Use and Idea Theft

My less furry and long-lost-brother [blog gerson42] posted a post about copyright, which engendered a helluva long comment from me. I'm a lawyer when I'm not blogging. And one of the things I do is copyright work.

Gerson's basic thing about copyright is that you cannot copy someone else's work on your blog. Let's set aside the moral issues with copying just for a minute, and concentrate just for a second on the legal side of things -- at his request.

What I told him was that he is correct that republishing the expression of others is copyright infringement in the legal sense. Every time you sing "Happy Birthday to ____" you are infringing the public performance rights of the owners of that copyrighted song. (And yes, it is copyrighted, and yes, the owners of the copyright do in fact sue broadcasters, theme restaurants (TGIFridays, etc.), and other commercial enterprises that do it.)

Does this mean that you cannot legally reprint anyone else's words without permission? No, it does not mean that at all. First of all, there is such a thing as implied license. Implied license is NOT, however, putting something out over the internet when you know people will steal it. That is NOT an implied license, but, instead, infringement on the part of a user. Period.

An implied license exists in circumstances where the owner knows that the recipients of the information will reprint it, and in most cases encourages it, so that the permission to use it is implied by the context. A good example of an implied license is a press release -- as a literal matter reprinting a press release or substantial portions of it is copyright infringement, but the whole POINT of a press release is the replublication of the information. Hence, implied license.

Some people believe, mistakenly, that they are shielded from infringement by simply giving the original author attribution. While attribution is the morally appropriate thing to do, it is NOT a shield against infringement. It simply identifies the plaintiff. (Heh.)

The main reason why reprinting materials on the posts in Blogville is probably not actionable (notice I did not say "not infringement") is because of the doctrine of Fair Use. Fair use is a defense to infringement, a kind of "so what" defense that the law actually recognizes because it applies in contexts where we, as a society, have decided we want to encourage the free flow of ideas.

There are generally four factors that are considered in the fair use analysis, i.e., whether a particular use is "fair." They are:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.


The first listed factor -- and the one that is most applicable here -- is the use to which the copyrighted work is put. If it is for educational, or non-profit purposes, it is treated more leniently. If it is a commercial venture, then you are MORE suspect, not less. Here in Blogville, no on makes money on their blogs. These are not commercial enterprises. And the reason why the commerciality makes sense is because the ultimate tension between owners and users of copyright is not present in this context: copyright owners want to get paid from markets that exploit the work to make money.

This also dovetails into the fourth factor -- If the use in Blogville is not a "market" for purchase, then the copyright owner does not lose money. In fact, Jason Mraz actually MADE money because my use of his lyrics turned some people onto him and bought his stuff. That single example, right there, is the reason that fair use is a doctrine that was developed and tolerated by copyright owners.

The other factors are less important, but I'll briefly discuss them. The second factor is the nature of the work used. If it is fact-based and is already published (think newspapers, for example), then you have an easier time than if you lift and unpublished work of fiction or other imaginative work. Stands to reason, right? If, after all, the work has been published already, it already is IN the market, and the use is simply adding it again, nor usurping the market.

The third one is the "amount and substantiality in relation to the whole." Posting the "heart" of a work -- i.e., the famous Nation Magazine excerpt from Nixon's as-yet-unpublished memoirs covering the resignation from office -- can be wrong, even if it is a small part. Posting the entirety of a work is always suspect at least initially. But even that is not fatal if the other factors dominate.

Here's an example...I publish excerpts of poems at times, as do most of us. I give attribution because it is the right thing to do. But if I published the entire Road Less Travelled Poem, encouraged you to print out the post and make a poster of it....well, the Estate of Robert Frost might have something to complain about. It still could be fair use because I may still have other factors in my favor, but I'm on shakier ground with that particular use. Have I lost you yet?

Ultimately, whether something is fair use is a question of fact that has troubled scholars and litigants for years, largely because every situation will touch on some or all of the various factors. It is not easy to decide and often requires years of litigation. Yippee! (Sorry. Still a lawyer.) The point is that, from a LEGAL perspective, pure copying of anything is not always actionable. Morally reprehensible, though, is another issue.

One last thing in passing: ideas are not copyrighted; only the expression of them is. Gerson and I can both write a post about a Consumer Reports' Guide to Girlfriends if we want. (Great post, btw.) But I cannot copy his LANGUAGE he used to do it.

In my book, of course, copying the idea is wrong, too. But then again, I'm a purist when it comes to creativity. Legally, you can copy ideas all you want -- if you can live with yourself in the morning.

Legally, you cannot copy other peoples' posts, unless you have a damn good fair use reason. And I do not know if a full-on instance of plagarism from blogger to blogger would be fair use at all. A whole-scale act of theft without attribution will demonstrate a knowledge of the lack of ownership and strip it of its bona fides. I mean, seriously -- plagarism as a "fair" anything is absurd. It may not be for profit; it may not be usurping a market; it may not be something previously unpublished; but plagarism of other works in Blogville has absofuckinglutely no redeeming merit at all. Whether a court would find it a fair use, I don't know. I doubt it.

As citizens of Blogville, though, we can call it what it is, and I call it theft. Morally bankrupt. And one of the few things in this world that would make me hate another person. I am THAT much of a believer in the ownership of one's intellectual labor, even if the law would not support me (though I think it could).

Thus, a bright line rule emerges: Do not copy other peoples' posts. Do not copy their ideas without attribution. And do not use copyrighted works of others too much for any purpose other than illustrating your free flowing ideas. Got it?

So that's the law as I see it, free of charge. Gerson made me do it. Carry on...

--Seriously (still a lawyer after all)


frangipanigal 45F
10406 posts
5/21/2006 10:06 pm

Geez, I am glad you not billing for that post.That's a lot of work,we'd be bankrupt!! Thanks for the time it took to write it and the info.

Luckily for me i've never even posted as much as an email joke so I'm safe.

Frangi


Seriously_Real replies on 5/24/2006 5:34 am:
I always prefer originality, but derivative works can be highly valuable, too. Thanks babe.

rm_gerson42 52M
2419 posts
5/21/2006 10:15 pm

so.... don't do it then? Seriously, thanks for the lengthy and in depth reply to my request. For the most part, I believe that myself and others infringe innocently and without malice and definately without possibility of commercial profit, yet the clarifications help to define the lines between what is proper or not. Thanks for attributing me in the preface for bringing the thought to your attention, otherwise I would have hauled your ass to court.
ger


Seriously_Real replies on 5/24/2006 5:34 am:
I would never want to run afoul of you. You control all the wimmins around here, from what I can tell.

rm_1hotwahine 63F
21091 posts
5/21/2006 10:47 pm

You know, that was actually pretty useful to me (at least the parts that I read). I do a lot of training, both for credit and noncredit classes, and always use a bibliography because someone told me to, and now I get why. This was a very shortcutted answer, btw. Apologies if it doesn't make sense.

Yeah, I'm still [blog 1hotwahine]


MoonRise9 58M

5/22/2006 12:06 am

Phew, that was a lot to comprehend. Thanks for laying it out. I've wondered about some of that stuff. I did copy and save it.


rm_LoyalCumpany 46M
3204 posts
5/22/2006 12:21 am

So to give credit is still the morally right thing to do in Blogville, but not necessarily legaaly warranted?

Good deal.... I think. Thanks for the post, oh wise and legal guy. Do you DUI's too?

I am JoJo the Circus Boy!


PurplePeach72 44F  
9199 posts
5/22/2006 4:51 am

Well that explains my unwarranted attraction to you, you're a lawyer too, my Steve is as well! I think I have lawyer radar or something, you guys are just so sexy to me. Great post, even if it was a bit dry for blogville. Very informative.

Kisses,
LA


rm_DaphneR 58F
7938 posts
5/22/2006 7:42 am

    Quoting MsBettyCocker:
    Um, can I see your legal briefs now?

    ~Betty~
Haha, I'd rather see your illegal ones.

Have tongue, will use it. Repeatedly.


PrincessKarma 43F
6188 posts
5/22/2006 9:49 am

Gaaahhhd... another lawyer... no wonder I can't stay away from you!

Oh, and thank you for the post. *HUG* I'm going to redirect people here


The Big Bang was the mother of all orgasms.PrincessKarma


redlipsprincess
(Princess Lips)
51F

5/22/2006 10:56 am

ok I read it twice princess

TTFN


TheRealThing655 48F
9558 posts
5/22/2006 12:34 pm

ok ok ok ok, I promise.
Will keep for future reference.
Sheesh you're a smart one.


earthShiva 59M

5/22/2006 12:40 pm

Seriously,

2 factors you left uncovered in your excellent post - commentary and imagery.

One extremely important element of fair use is excerpting with the intent of commenting on the ideas embodied within the creative work. Just as the ideas themselves are not protected by copyright, neither is the protection of the explicit expression of the ideas if direct referecne to that expression is made in order to foster disscussion of them. Thus quoting from another blog in order to expose an idea upone which one comments follows fair use doctrine. Similarly, parody and satire are seen as "commentary" and are generally excluded from copyright coverage.

Quite the opposite extreme is the use of images to illustrate our little essays. Unless we alter images in some way (beyond re-sizing) they are the work of the creator. Furthermore, they may be covered by more than one copyright - creator of the canvas, and also creator of the digital copy. (Licensing is a significant source of revenue for some museums, even of older paintings whose copyrights have long since lapsed. This is why museums get touchy about photography.)

Use of copyrighted visual artwork also allows the copyright holder certain controls over the work to maintain aestehtic standards. The Ansel Adams estate refused to allow digital copies of his photography for years because 256 levels of grey did not adequately render the the subtle shading of his photography, and was perceived by them to be potentialy damaging to his legacy.

Visual copyright holders also have certain rights regarding how their works are used for illustration. Use of images to illustrate pornographic or erotic stories or essays could be viewed as damaging by a copyright holder in creating an association between the artwork and the message of the story. This might be actionable not just in terms of the typical statutory damages for copyright violation, but also for loss of revenue based on a damaging association between the artwork and the story it illustrates. This potential hazard becomes far greater if one uses material that is not only copyrighted, but also trademarked. Trademarks are much more narrowly identified as property, and are not subject to the same fair use exclusions.

While I think that the probability of legal action against personal bloggers is not high, one should lift images with caution. One could easily become an easy target with few friends in the legal system.


Nightguy_1961 55M
4866 posts
5/22/2006 1:31 pm

Great post....if I quote from something I've read, I try to tell who and where it was from. Just common curtesy, imho.

I know and reluctantly accept that what I post here can be lifted and used elsewhere...nothing I can do about that except not post anymore.

Thanks for the explanation.

NG61...fading back into the shadows...


concupiscentKid 40M

5/22/2006 1:59 pm

Good info.


OboesHonedIambs 62F

5/22/2006 4:13 pm

Great post, wonderful analysis!

Instant Human -- Just Add Coffee


TripleHARD3 57M

5/22/2006 10:57 pm

u lost me from the woRd 'lawyer' but 2 your credit i perservered thru insufferable yet exquisite pain desperate thirsty 4 the 'punchline' words wordss everywhere but not a drop 2 think

so the woRd according 2 garp (a.k.a. Seriously Real) is 2 litigate otherwise what purpose in being

my woRds r free like me and i would rather see them spread far and wide not 2 be imprisoned by the law

if u truly believe in what u say u would have 2 provide citations 4 each and every woRd used in your sole li'l que? precedence of course

if Moses spoke with no one 2 hear him did he actually say anything? no wonder he developed a God complex>>>>


Mermaidslut 50F

5/24/2006 2:03 am

:::commercial artist here, swooning at someone who *finally* understand her favorite rant in the entire universe:::

such passion....omg are you always like this?

I don't care, I'll talk this one with you till the stars fall from the sky and the sun burns itself out and fades to pixie dust and settles under the shadows of the next gallaxy past the milkyway, third star to the left.... even my companion artists glaze their eyes over when I go of on this tangent or turn work down because of it....or start arguing with open source afficionado code geeks about Napster, and the reason even they should "license" software on an annual basis through subscription services instead of letting it be pirated since it is a serious loss to our national economy and not just thier corporate bottom line. Especially in California where the movie and software industries products can be purchased online from overseas before the original compilation is released from the recording artist/studios... Just imagine if they could figure out a way to claim all that unreported gross loss of income into our national export economy accounts, let alone the california budge.. our state would not be going broke right now if you ask me.. but then, all politicions know is tax, tax am tax again cause they do not see the loss this law being so unenforcable internationally is costing us

oh.. my... oh my my my

mmmm, mmmm, mm, mmm, m

i think i am in luv!



sportsfan362436 47F

5/24/2006 3:19 am

Thanx for such an indepth explaination... and from one writer who has had writings stolen... I only wish I could copy this and leave it on their mirror!! lol

*Smiles, kisses n hugz*


starlight_runner 39F

5/24/2006 5:09 am

absofuckinglutely no redeeming merit at all.

is that term admissable in court-giggles-
legal terminology is all latin 2 me.

have 1 question about your example.What if you charged for the printouts of the poem n made a profit?

kisses Star


rm_dragonheat23 51M
1158 posts
5/24/2006 7:48 am

A very intresting and informative post. And as I have posted the entire Road Less Travelled poem in my blog, I really that Mr Frost's scions are not members of this blog community.


Mermaidslut 50F

5/24/2006 9:29 am

Okay, the first post was just a warm up...hehehe.....question, if the owners of this site, who operate these blogs presumably "for profit" allow copyright infringement, would they then be considered in open violation of the copyright law, for allowing the theft to go unpunished? Granted they are using a terms of use license to hopefully imply that the poster/user is responsible for their own actions, but let's consider another example of a law that might also be important given the nature of this site.

Let's say for example that their are pictures of an underage minor posted on this site, instead of a swiped copyright protected photo or paragraph. Wouldn't they be legally bound to report it to the proper authority or be possibly held as an accesorry to a crime?

Certainly, there is also the implied belief that the poster of a copywritten item is not using these articles for profit, based on your arguement, right? However, where does the AdultFriendFinder site become responsible for monitoring the material content on their servers, which they make public to a worldwide audience?

Furthermore, and just to prove that this site can be used for profit... invalidating the theory you have that just because they have posted it here on Bloggsville, therefore they have no intent of making money off their postings... what about the pros that use this site to fish for new clients? Wouldn't they potentially then be guilty if using a copyrighted item, to lure an individual in to a for profit adventure?

Of course, just because policing is the *biggest* point of contention here, on all of these issues.. ultimately it comes down to a ethical moral code of conduct that must be instituted into the general population to encourage the self policing of the members of the site.

Therefore, I would suggest a possible solution to the copyright and professionals abuse of this site, is to create a high profile system to facilitate the reporting of such morally challenged individuals. At the very least, if we all agree to hold each other to this higher level of integrity by reporting them, we can get them thrown off the site. Then we can all have more fun when we don't have to wade through so many liars and whores!


Mermaidslut 50F

5/24/2006 10:06 am

oh.... and dont forget, that unlike the kiddie porn issue wherein the arguement can be made that these AdultFriendFinder site owners are not in "that" business, even though their site may be abused by those type of individuals....

.... the copyright issue is a law that protects THIS site as well. Certainly in regards to their unique code and database from which their profits are made. Because they are also protected by that same copyright law, they SHOULD have a higher sense of implied responsibility to enforce protection for the benefit of others as well.. or at the Very least, find it inexcusable not to have a reporting system in place for the encouragement of member self policing giving them the benefit of the doubt that they could could not possibly afford to hire a staff to do it for us... being that the issue is so prevalant ... IMHO


Mermaidslut 50F

5/24/2006 6:55 pm

Don't *even* let me get started on dealing with derivitave works as an original artist. How any company can waste my time, to meet with me in their board room, then allow me to work thier board of directors into unanimous agreement on a new company image during five or more meetings, all while planning to stab me in the back by requesting thier marketing team to create a derivative off of one of my originals.... therby compensating me only a fraction of what would have resulted had they not been ...so ...unethical...

mmm,mmm,mmm, mmm..... those thoughts of what I want to do to them suits are just *not* appropriate for this board.... *weg*

:::hiding whip behind my back:::::

..... lol


ArtisticTwist75 41F
2505 posts
5/26/2006 4:04 pm

Seriously... can I link to this post. I found alot of value in it.

Artistic


Seriously_Real replies on 5/26/2006 4:13 pm:
Of course you can sweetie. Anything you want is fine.

bipolybabe 55F

5/29/2006 9:03 am

What about the rights we've surrendered to Various, Inc. (aka AdultFriendFinder) through agreeing to their terms of use? From my reading of it, Various is able to use our blogs any way they like and make a profit from it. Is that correct? Quoting from the Terms of Use:

C) By posting content to any public area of AdultFriendFinder, you automatically grant, and you represent and warrant that you have the right to grant, to Various, Inc. and its members, an irrevocable, perpetual, non-exclusive, fully-paid, worldwide license to use, copy, perform, display, and distribute such information, rights of publicity, and content and to prepare derivative works of, or incorporate into other works and other media, such information and content, and to grant and authorize sublicenses of the foregoing. For privacy terms, please refer to our Privacy Policy.

BPB

Check out my blog Bi-Poly-Babe for more sensual, sexual pleasure!


Seriously_Real replies on 5/29/2006 10:04 am:
This is a good question, and the good news is that you still own it. The bad news is that they have the right to use it without paying you. This is different from an assignment, where the ownership of the work would legally transfer. A license, instead, which is what this is, gives them the right to use it and profit from it without paying you. (Some licenses require royalties, but this is fully "paid-up," meaning they owe you nothing further.) I would have to go back to the TofU to see if there is a term to the license or anything that would permit revocation. That would go the question of what you want to do next with deleting or not.

But they do NOT own it. You do. They can use it, but so can you.

--Seriously

TripleHARD3 57M

6/1/2006 11:31 pm

hi


TripleHARD3 57M

6/1/2006 11:48 pm

2 pro'p'h'e'i't,

fee'ill f'ck're:e (dumb)

fr'ummmm
ymy woRds


TripleHARD3 57M

6/1/2006 11:53 pm

bye.


TripleHARD3 57M

6/2/2006 12:12 am

One last comment....give One enough rope and the rest goes without saying.

See Ya, wouldn't want 2 be Ya


MaggiesWishes 60F

6/12/2006 12:02 am

Man, I so needed you last year when this same site member snatched 3 of my stories and reposted them to another erotica site as their own. Hump!
I never have a man around when I need one. *kicks sand*

Grateful for finding this information out.
Are you for hire now?

I can always use a good lawyer.
I do need some serious advice on another matter.
Spare me a moment, consular?
Warm huggies 2ya


Seriously_Real replies on 6/12/2006 5:08 am:
I know the bitch you are talking about. She did it to a number of people. MVGirl1, right? Anyway....

I would be glad to talk to you offline about stuff. Send me an e-mail and I'll do what I can. But I warn you -- depending on the subject matter, I may be worse than helpless. I might actually be wrong. You risk....heh.

--SR

keithcancook 60M
17841 posts
8/16/2006 10:29 am

Great post. I found a link out there and followed it here to your basement.

Blog On!


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