There was a very interesting diary the other day, A Comment from the Distant Past, by siab. It linked a comment from 2004, when I first joined Daily Kos, about posting photographs and other copyrighted content. At the time, the big concern was actually bandwidth, but it did reference a diary by some guy named kos who wrote “it's those hapless webmasters that end up having to pay to serve up those stolen images.”
That led to some conversations about copyright and how much has changed over the last 13 years right here on the Big Orange Blog.
Today, I’m not sure we, as Daily Kos users, pay quite the attention we might to copyright. From my own point of view, I come at it from a couple of different angles.
First, as a publisher of Palate Press, I pretty jealously guard our copyright. We issue takedown notices quite often, as our original journalistic content gets reposted constantly. Yes, it’s just wine journalism, but it’s still journalism. We have an editorial board, professional writers, constant editing and fact-checking, and run only original content.
Second, I’m an attorney. I’ve been one for thirty years now (God, how the time did fly!). I’m licensed in three states, a dozen or more federal districts, three Courts of Appeal and the US Supreme Court. While copyright isn’t my full-time job, I’ve both advised and litigated on the matter, as well as spoken on it several times.
With that introduction, please allow me to run you through a couple of relevant cases, with some commentary, on the fair use of copyrighted material, particularly on a political website.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164,127 L.Ed.2d 500 (1994)
“Fair use" is found in the 1976 Copyright Act, which states:
§ 107. Limitations on exclusive rights: Fair use
“Notwithstanding the provisions of sections 106 and 106A, 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
“(2) the nature of the copyrighted work;
“(3) the 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 fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.” 17 U.S.C. § 107 (1988 ed. and Supp. IV).
Those are the four factors considered in a fair use analysis. The first, and what many consider most important, is the purpose and character of the use. So if you use a video or a photograph to teach a class, it’s more likely to be fair use than if you sell it, or are otherwise doing it for profit.
The next factor is the nature of the work. In the Campbell case, the Supreme Court criticized the Court of Appeals for failing to look beyond the first element to the nature of the work. Here, the overriding question is how similar the new work is to the original. As the Court put it:
This factor calls for recognition that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.
Campbell at 1175.
The third consideration goes to the amount taken versus the amount that’s different. This is particularly important in parody, for the work being parodied must be recognizable, but simply copying won’t cut it. In Campbell, the Court noted that 2 Live Crew copied the opening riff and first line of “Pretty Woman” but diverged from there:
It is significant that 2 Live Crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics for its own ends.
Id. at 1177.
The final element of fair use is the effect of use on the potential market for the copyrighted work. So, for example, there would be a difference between bringing a work to an audience that would not have any interest in the original, versus directing an audience with a thirst for the original content away from it and to your own content.
Another case of interest is Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191 (3rd Cir. 2003).Video Pipeline streamed scenes of movies as “trailers,” but they differed from studio trailers because they were simply uncut scenes, rather than clips with voiceovers intended to entice people to see a movie. It charged a fee to see the streamed “trailers.” It filed a complaint to seek a declaratory judgment finding that its use was not a copyright infringement.
The trial court denied the petition and its decision was affirmed on appeal.
The Court of Appeals began by considering the likelihood of success under the fair use doctrine. The court began the analysis with this statement - “where the copier uses none of his own creative activity to transform the original work, holding the fair use doctrine inapplicable will not likely interfere with copyright’s goal of encouraging creativity.” Video Pipeline at 198. In other words, where you just copy some or all of a work, without adding anything of your own, fair use is going to be far more difficult to demonstrate.
The court noted that the use was clearly commercial, and that was contrary to fair use, but not, one its own, decisive. Video Pipeline argued that clipping a short section of a movie into a “trailer” changed the nature of the work, but the court rejected the argument, noting that the clippings “do not add significantly to Disney's original expression.”Id. at 199. It was also not sufficiently similar to a movie review, which might permit a clip, because a reviewer might include voiceover or other commentary. Id. at 200. The court concluded that the clips “lack any significant transformative quality,”id., and therefore was less likely to fall under fair use.
The court did find that using just two minutes of a feature-length film was not a substantial amount, and that the clips used did not “give away” the ending of the movie or otherwise reveal the “heart" of the copyrighted content, and that weighed in Video Pipeline’s favor. In comparison, the use of an entire scene from a television show, one that shows the issue from beginning to end, might find that factor less in the user’s favor.
The court concluded that Video Pipeline’s use of Disney’s clips would not fall under fair use, and therefore affirmed the decision of the trial court.
A far more recent case, and one that gets closer to the heart of the question of use of video clips on a website, is Fox News Network, LLC v. TVEyes, Inc., 124 F.Supp.3d 325 (S.D.N.Y. 2015). In that case, TVEyes allowed users to archive videos, download them, share them by email, and search for content by date and time, not just keyword. Fox News sued for copyright infringement for each of those functions.
The court began by noting:
Fox receives advertising revenue when viewers watch videos on its websites, including revenue from banner advertisements on the page itself, and from “pre-reel” advertisements that play before a video clip begins. Fox also has agreements with syndication partners, including Yahoo!, Hulu, and YouTube, “to store and show video clips of segments of its program[s] on their websites, thereby generating another stream of income.”
Fox News at 330.
The court ruled that TVEyes’ archiving function, which allowed a user to save a particular part of a show, did fall under fair use. It also ruled that its sharing function might fall under fair use if it included protections that would only permit sharing “as part of comment, criticism, or debate.”Id. at 335. However, because the sharing could also simply be a way to share free content with a friend, it could not fall under fair use. Downloading suffered the same fate. Id. at 336.
Finally, the date-time search mirrored Fox News’ own capabilities and therefore “is likely to cannibalize Fox News website traffic and sales by its licensing agents,”id. at 337, and therefore fell outside fair use.
Another video case, this one from a Court of Appeals, was Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003). In that case, various owners of copyrighted Elvis Presley material brought action against a company that produced The Definitive Elvis, a 16-hour documentary about Elvis Presley’s life. The video sold for $99.
Videos included not just short clips with voice-overs or commentary, but also longer clips that simply played Elvis’ appearance on a television show.
The court conducted a fair use analysis. It first noted that the use was commercial, and that “weighs against a finding of fair use.”Elvis Presley Enterprises at 627. It next found that the use of the video clips was “not consistently transformative,” because of the use of complete scenes of Elvis' television appearances. Id. at 628-629.
The court found the television appearances more difficult to balance under the nature of the work analysis, as a news work is more conducive to fair use than something purely creative. Ultimately, the television appearances, in combination with music and photographs, fell on the side against fair use. This is an interesting slice of the opinion, particularly for one posting on a political website. If, for example, one is simply posting a news story, this factor (though the other factors must also be weighed, no one factor is decisive) could mitigate in favor of fair use. But if one is posting something more creative, for example a news parody like Last Week Tonight or humor/commentary like New Rules, that would get much closer to the line.
The amount and substantiality also weighed against fair use, as running entire appearances, rather than very short snippets, were contrary to the interests of the copyright holders. That determination segued into the effect the value of the copyrighted works. If a person could buy all Elvis’ appearances on the Steve Allen Show by purchasing the video, the copyright value of the show appearances would be reduced. This would be true on a website, for example, if an entire scene or section of a show was published, giving a potential viewer everything they were looking for without going to the copyright holder for the content.
I guess the conclusion we should take from this is that sure, some video on a political website is probably okay. But if you post video for profit, whether you’re selling it or sending people to your own ad-laden website, that first factor might weigh against fair use. And if you post an entire scene, that will weigh against it, too, because that’s not transformative. If you’re posting news you’re in better shape than if you’re posting satire. And finally, in the most important factor of all, if you’re posting content that will give the viewers the very same content they might seek out from the copyright holder, fair use is going to be a very difficult defense to demonstrate.
This is not intended to be a complete treatise on copyright. But it is something to consider as we post diaries and comments, and as we view others’ diaries and comments, here at Daily Kos.