Copyright and Fair Use Online Presenter: David Wittenstein ©2007 Dow Lohnes PLLC Jon Hart David Wittenstein

What is a copyright? A property right that protects works of authorship (to be defined) by giving the owner exclusive rights (subject to exceptions) to make or authorize several specific types of uses of the works

Copyright Rights – A Refresher A copyright is not something you apply for Springs into existence when work is fixed in any tangible medium of expression Copyright law favors creators to encourage creation Rights not transferred or licensed are reserved to the creator by default

Copyright Rights – A Refresher Vests in the “author” in the moment of creation Employees’ works are owned by the employer Freelancers and independent contractors retain copyright in the absence of written agreement Magic words: “work for hire” and “assignment”

Copyright Rights – A Refresher What Exclusive Rights Copyright Gives The Owner Make copies of the work Distribute the work Make derivative works Display or perform the work publicly Make digital audio transmissions of the work

What Does Copyright Protect? Works of authorship, including: Motion pictures and other audiovisual works, (e.g., TV and radio programs and ads) music, literary works (including newspapers and magazines), drama, choreography, computer programs, websites, artistic works and sound recordings Certain collective works and other compilations

What’s Not Protected? Facts…ideas…procedures…discoveries Material in “the public domain”

Work not protected by copyright…may be freely used by everyone. Includes… Work by U.S. Government Statutory formalities not satisfied Expired copyright term What’s the Public Domain?

When U.S. Works Pass Into The Public Domain This page can be viewed at

What’s “Fair Use”? Allows use of copyrighted work without owner’s authorization Gray area, no bright line rules

The Fair Use Four-Factor Test 1.Purpose and character of use 2.Nature of work copied 3.How much used 4.Effect on value of work

Fair Use Fair use: subjective, complex, highly fact-specific No bright lines Get permission or rely on a more specific copyright exception

Music Rights and Licensing Types of Works Musical Works (intangible; “songs”) Sound Recordings (tangible; CDs and other physical files in which songs are contained) Rights Involved To Perform Publicly Rights generally licensed by performing rights organizations (ASCAP, BMI, SESAC) Rights controlled by record labels, but limited to digital audio transmissions, some of which are subject to Section114 statutory license. O-T-A Broadcasting exempt. To Make and Distribute Copies Rights controlled by music publishers; licensing through The Harry Fox Agency, Section 115 compulsory license, source licensing Rights controlled by record labels Music Licensing Framework

Compulsory Copyright Licenses Copyright law has several compulsory licensing schemes For example: the Section 114 Webcasting compulsory license

Posting third party content on websites Are web publishers liable for user-generated content? How can web publishers protect themselves?

DMCA (Digital Millennium Copyright Act) Safe harbor for “service providers,” including online publications Protection against liability for third-party content 17 U.S.C. Sec. 512(c)

How do web publishers qualify for DMCA safe harbor? Designate an agent with Copyright Office Simple form $30 fee for each form Can use one form for multiple URLs for websites owned by the same company Notice and removal

Practical Advice Make it as easy as possible to reach you Give people a way to complain (click to ; phone number; mail address) Take complaints seriously Respond quickly Follow 512(c) take-down procedures * * * Obtain a very broad license for the use of third party content

AFP v. Google The Unresolved Controversy Are headlines, leads and thumbnail sized versions of news photos free for the taking?

Scraping/Taking of Factual Information, Lists and Databases The limits of copyright protection Other possible (non-copyright) claims

Viacom v. YouTube Will the DMCA safe harbor save YouTube?

Sports Leagues vs. News Organizations Online Battlegrounds NFL 45 seconds per day of video Online archiving MLB Statistical updates NCAA Ejection of newspaper blogger Other

Copyright and Fair Use Online Presenter: David Wittenstein ©2007 Dow Lohnes PLLC Jon Hart David Wittenstein