Cruz Law, PLLC

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What is Fair Use?

In U.S. Copyright law, Fair Use is a doctrine that while technically infringing on the copyright owner’s rights, there are certain exemptions considered permissible; and such fair use can be used as a defense against a claim of copyright infringement.

Some exemptions to infringement permitted under Fair Use include criticism, comment, news reporting, teaching, scholarship and research.

According to the Copyright Act, there are four factors that will be evaluated to determine fair use:

1)      Character or Purpose of Use; this includes whether work is used commercially or for nonprofit educational purposes.

2)      Nature of Copyrighted Work

3)      Amount and Substantiality of the Copied Work

4)      Effect on the Potential Market

The factors highlighted in the Copyright Act were determined prior to the use of new technologies such as Facebook, Twitter and other forms of social and digital media.  As a result, there are some big question marks when it comes to enforcement of copyrights and where and when Fair Use can be used to defend infringement.

If you have a question regarding Fair Use, do not hesitate to call or email to set up an appointment.

Can employers request your Facebook password?

The Cyber Intelligence Sharing and Protection Act (CISPA) was blocked by members of the U.S. House of Representatives.  CISPA would have banned employers from asking for social media passwords of its employees.

The bill would help the government react to cybersecurity threats by making it easier to share information between itself and private company.  Some argue that it’s a major invasion of privacy as it would be easy for companies to hand over users’ private information to the government.  More background on CISPA can be found with this excellent post on PC Mag.

The Washington state legislature currently has SB 5211 which proposes employer social media password legislation.  There is criticism about whether this legislation is necessary.  But, the law, if passed, would prevent employers from obtaining social media passwords from its employees.  It also would allow a statutory cause of action with a penalty of $500 to a prevailing employee or prospective employee in addition to “any award of actual damages” plus reasonable attorneys’ fees and costs.  Additions to the state law include limited reasons for an employer to access a personal account or profile.

The bill is currently matriculating its way through the state House.

Court dismisses Viacom lawsuit against YouTube

A recent ruling in New York federal court may have repercussions of online use of clips on YouTube.  The Court dismissed the lawsuit against YouTube for unauthorized use of clips showing Comedy Central clips of “The Daily Show” and “South Park.”

The Court ordered that You Tube was protected by the “safe harbor provisions” of the Digital Millenium Copyright Act.  Thus, You Tube would not be guilty of any form of copyright infringement unless it had knowledge.  It would be the burden of the party making the accusation of copyright infringement and not for You Tube to disprove.

Viacom argued that YouTube used unauthorized copyrighted material to draw visitors and make it more attractive for potential buyers.  The argument was that YouTube benefited via ads placed next to videos.

Viacom plans to appeal the decision.

(via New York Times)

The ruling exemplifies the push and pull between copyright law and the DMCA.  Still, if you operate a YouTube channel, you could still be subject to the takedown notice provisions of the DMCA.   Also, if you find someone taking your work without your permission, you could use the takedown notice to your benefit.

Can a company make a copyright claim under the DMCA?

I recently wrote a post on whether companies can make a copyright claim under the DMCA to take down videos off of YouTube that may infringe on  its rights.   The issue took place in the sport of mixed martial arts where an individual took video of a conversation that took place between an official and an athlete which has sparked some controversy.  Please see below.

[Read more…]

Is it safe to Retweet?

Can you get in trouble for retweeting a photo?

Twitter’s latest update allows users to embed photos, videos, and article summaries.  While these are additional conveniences for tweeters, the question arises regarding attribution and copyright.

A court in the Southern District of New York ruled that the Washington Post and Agency France-Presse (AFP) nfringed on a photographers photos by retweeting his photo for a commercial use.  However, the photographer’s damages claim were limited.

Reuters reports that the judge ruled that while Twitter’s terms of service allows for republishing and rebroadcasting of user’s images in certain circumstances there is no license for a commercial use.

In this particular case, a photographer covering the Haiti earthquake tweeted his photos.  They were picked up by the Post and AFP and the photographer subsequently sued the companies.

The case provides some guidance on the ownership in social media.  While many of us retweet and reblog with impunity, companies must think twice if its done for a commercial use.  If you are a photographer or someone that posts original works, the case is informative as it lets you know that you have rights and means to protect yourself in social media.

If you are interested on learning more please contact a social media lawyer.