Bloggers, Is Your Content Safe Under The “Fair Use” Doctrine?

As blogging evolves, it is becoming increasingly important to recognize the legal limitations associated with building upon the  works of others.  Under 17 U.S.C. §504(c), damages for a single copyright infringement can range from anywhere between $750 to $30,000 per infringement.  Paradoxically, some of bloggers’ best content incorporates the authorized works of others.  As we discussed in a previous post, the Fair Use Doctrine can help one determine whether their use of someone else’s otherwise copyrighted work is likely to escape liability.  While it is often very difficult to ascertain ahead of time whether the use of another’s work is a fair use, patterns have emerged that provide a fairly reliable degree of certainty.  If you are unsure whether your use of copyrighted material is a fair use, err on the side of caution by obtaining the author’s permission before publishing it.

The Fair Use Doctrine is codified at 17 U.S.C. § 107 and states that “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”  Fortunately for bloggers, most of what they do is, at the very least, criticism or comment.  However, many bloggers simply stop there, without analyzing how a court would likely determine whether the copying is a fair use.  The safest course of action is to properly consider the  four questions raised in the statute:

• Is the use for a commercial or nonprofit purpose? The character of the work is not determinative.  For example, the mere fact of the work being for a nonprofit purpose would not automatically shield it from liability.  This is merely something the court would consider.

• What is the “nature” of the copyrighted work? This pretty much goes without saying.  In determining if the use of the work was a fair use, the court would necessarily have to determine what the work is.  Is it music?  Is it a newspaper article?  Is it from a book?

• How much of the entire work was actually used? Another factor the court will weigh is how much of the work was actually used.  For example, the court would obviously be more likely to conclude that a copyright has been infringed upon if the infringer copy and pasted the entire work, as opposed to quoting a brief passage to illustrate a larger point.

• What is the effect of the use on the market value of the copyrighted work? In other words, is the party that used the work making too much money off of the work compared to the original author?

There is nothing simple about trying to determine every possible circumstance that may arise.  However, these guidelines are a good starting point for assessing whether what you are about to publish will survive an attack.

About the Author
Joe Miller is a media, intellectual property, telecommunications, and civil rights attorney in Washington, D.C. Prior to becoming a lawyer, he worked in advertising sales, production, and music research at New York City radio stations, including Emmis Broadcasting Inc.'s Hot 97. He is also a trained musician. Before college, he attended the Mannes Conservatory Preparatory School and the Fiorello H. LaGuardia High School for Music and Art and the Performing Arts, which was popularized by the “Fame” television show, film, and Broadway musical. Joe is a proud graduate of the State University of New York at Plattsburgh, where he earned a B.S. in Mass Communications, with Concentration in Music and Minor in Business Administration. At SUNY, he served as a Resident Advisor, Jazz Ensemble Pianist, Program Director of WPLT college radio, and was inducted into Omicron Delta Kappa, The National Leadership Honor Society. He is a graduate of New York Law School, where he served as an editor of that law school’s Media Law & Policy journal. Joe's work has been covered in the New York Daily News, Westchester County Business Journal, Washington City Paper, the American Lawyer, and was named a “Mover and Shaker” in the Minority Corporate Counsel Association’s Diversity & the Bar publication for his work on promoting diversity in the legal profession. He has testified before the New York City Council on behalf of minority radio broadcasters. Originally from Manhattan, New York, Joe now lives in Northern Virginia with his wife and daughter.
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