Media Legal Update Lawrence M. Miller Schwartz, Woods & Miller

COPYRIGHT BASICS How do you get copyright to works you have created? (trick question) How long does copyright last? When do you need permission to use others’ copyrighted works? What is “Fair Use”? How about posting third party content on my site? What do I do when someone else posts my content on another site? Schwartz, Woods & Miller

Copyright Duration Schwartz, Woods & Miller

Schwartz, Woods & Miller

COPYRIGHT/FAIR USE Schwartz, Woods & Miller Section 107 Limitations on exclusive rights: Fair Use [T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means...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 —

Fair Use Considerations 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. Schwartz, Woods & Miller

Schwartz, Woods & Miller

Schwartz, Woods & Miller

COPYRIGHT RESOURCE Schwartz, Woods & Miller

COPYRIGHT POSTING THIRD PARTY CONTENT No special rules for the Internet No special rules for social networking sites You may have promotion rights that apply to YouTube and the like Cut and paste, frame, link Schwartz, Woods & Miller

COPYRIGHT POSTING THIRD PARTY CONTENT Crawling and image and sound clip recognition software Liability and damages Digital Millennium Copyright Act §512(c) Communications Decency Act, §230 Infringement notification YouTube verification tool Schwartz, Woods & Miller

POSTING THIRD PARTY CONTENT TERMS OF USE User typically held responsible for all content Use by children under 13 requires special safeguards, but the requirement applies only to commercial sites YouTube uprising over removal of term of use that stated that the license granted by users expired upon removal of content by user If you are not just a casual user, review the Terms of Use before participating Schwartz, Woods & Miller

POSTING THIRD PARTY CONTENT LINKEDIN TERMS OF USE Grants of rights to site owners vary widely, e.g., LinkedIn claims for all submitted content the “nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty free right … to copy, prepare derivate works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered … without any further consent, notice and/or compensation to you or to any third parties.” Schwartz, Woods & Miller

POSTING THIRD PARTY CONTENT TWITTER TERMS OF USE “By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” “The Services may include advertisements, which may be targeted to the Content or information on the Services, queries made through the Services, or other information. The types and extent of advertising by Twitter on the Services are subject to change. In consideration for Twitter granting you access to and use of the Services, you agree that Twitter and its third party providers and partners may place such advertising on the Services or in connection with the display of Content or information from the Services whether submitted by you or others.” Schwartz, Woods & Miller

Defamation A false statement purporting to be fact concerning another person or entity Publication or communication of that statement to a third person Fault on the part of the person making the statement amounting to intent or at least negligence Harm caused to the subject of the statement. If the person who has been defamed is deemed to be a “public figure”, that person must additionally prove that the statement was made with “actual malice,” that is that the person making the statement knew it to be false, or made it with reckless disregard as to its truth. Schwartz, Woods & Miller

POSTING THIRD PARTY CONTENT DEFAMATION Think twice, ‘tweet’ once ­ posting is forever There is an interesting legal debate over uncloaking anonymous posters, but a Facebook poster is likely disclosing his or her name No difference in treatment of online and offline defamation claims Other torts and crimes, such as infliction of emotional distress (Missouri teenager cyberbullying case) or interference with prospective economic advantage Schwartz, Woods & Miller

What About Trademarks?  ®  ™  SM Schwartz, Woods & Miller

Q & A Schwartz, Woods & Miller