… by Olivera Medenica (Wahab & Medenica LLC)
Bloggers are praised and criticized for the content they publish. Whether you are a newly minted blogger or a veteran, you may have noticed that bloggers sometimes get in trouble for what they publish. Just like journalists, bloggers have to make a judgment call as to whether to include a piece of information. For example, if you quote another article, how much should, or can, you quote? Can you use a picture from another online publication? What if the picture is of someone famous?
The good news is the First Amendment protects a lot of information that you post online. Freedom of speech is one of the cornerstones of our Constitution. That being said, the Constitution also empowers Congress to “promote the Progress of Science and useful Arts” – a congressional right that resulted in much of our copyright jurisprudence. In other words, just as much as you have the right of free speech, so do content owners have the right to protect and restrict the use of their content. So what is permissible, and what is not?
It really just depends on whether your use is considered a “fair use.” There is a multi-factor test you can apply to see whether your use is permissible, which I have included below. But to summarize the issues, “fair use” means you can use someone else’s materials for purposes such as criticism, comment, news reporting, teaching, scholarship, or research without infringing the copyright in those materials. So if you’re commenting on, or making fun of, someone else’s work (whether it be a picture, text or piece of art), the more likely your use constitutes fair use. This is often referred to as “transformative use.” For example, commenting in a blog post about a famous politician’s indictment and quoting a local newspaper’s take on the issue, is “transformative” as long as you are not just copying and pasting a bunch of paragraphs from the article to make your point. Conversely, including a picture in your blogpost from that newspaper article just to make your blogpost look better, might be problematic if the picture is not an essential element of your commentary.
If it sounds too vague, then it’s probably because it is purposefully vague. There are no clear cut guidelines, but there are certain questions you can ask yourself:
- What is the purpose and character of your use (of the material)? Transformative uses (i.e. commenting, reporting, teaching, scholarship etc.) are better than mere copying.
- What is the nature of the copyrighted work? Is it fact or fiction? Creative, fictional, works get more protection over facts. The facts that a basketball star was arrested, or a country is defaulting on its financial obligations, are just that: facts. There are only so many ways you can word something that happened.
- How much of the material are you planning on using? If you’re copying a limited amount, then it’s fine; if you are copying a whole chapter or article, or the vast majority of it, then that is not ok (even if you consider your blog post to be ‘reporting’).
- What is the effect of your use on the potential market for the material used? If someone can just bypass reading the major newspaper by reading your blogpost, then that is a problem. You cannot substitute your work for that of the original work. It’s ok to criticize, or parody, something, but you cannot merely reproduce the work in its entirety. And if it is imperative for your audience to read the original material in its entirety to understand your point, then it’s better to quote a little and just provide a link to the original material.
In the end, just use good judgment. Remember, your blog is about your opinion, your work, your reporting, and that is what makes blogging so uniquely valuable to your audience.
Olivera Medenica is a partner at Wahab & Medenica LLC, a New York based law firm that focuses on New Media and Intellectual Property law – both from a transactional and litigation perspective. She has represented software developers, bloggers, content creators, social media marketing companies and many others. She has lectured in a variety of venues from Harvard Law School, Brooklyn Law School, Pace University, New York Law School, Cardozo Law School, Manhattan School of Music, the School of Visual Arts to the New York City Bar and New York County Lawyers, as well as Lawline.com, Wikimania 2006, and South by Southwest Interactive 2011.