Primer on Copyright Liability and Fair Use

    by David Ardia
    January 25, 2008

    As a lead up to next week’s launch of the Citizen Media Law Project’s Legal Guide, we are putting up longer, substantive blog posts on
    various subjects covered in the guide. This post, which discusses copyright and fair use in the context of citizen media, is the second in our
    series of legal primers. The first addressed the subject of immunity and liability for third-party content under section 230 of the Communications Decency Act.

    Because the primer is too long for me to republish here, I’ve included
    just a summary.  If you are interested in reading more, the entire
    primer can be found on the Citizen Media Law Project’s blog.

    A broad array of creative, expressive media are subject to copyright
    protection, including literature, photographs, music compositions and
    recordings, films, paintings and sculptures, and news articles – any
    “original work of authorship fixed in any tangible medium of
    expression.” 17 U.S.C. § 102.
    Citizen media creators who use the works of others need to be careful
    that they do not open themselves to copyright liability when doing so.

    Fortunately, there are several circumstances in which the work of
    others may be used without liability. Bare facts and ideas, government
    documents, and items in the public domain are not subject to copyright,
    and some materials may be published under a Creative Commons
    license or other license that permits reuse. In addition, the doctrine
    of fair use provides that copyrighted materials may be used without the
    consent of the original owner in certain situations, such as when using
    excerpts for criticism or news reporting.

    While there is no definitive test for determining whether your use of
    another’s copyrighted work is a fair use, there are several things you
    can do to minimize your risk of copyright liability:

    1. Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;

    2. Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;

    3. Add something new or beneficial (don’t just copy it — improve it!);

    4. If your source is nonfiction, limit your copying to the facts and data; and

    5. Seek
      out Creative Commons or other freely licensed works when such
      substitutions can be made and respect the attribution requests in those works.

    Tagged: citizen media cmlp copyright fair use

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