Arts Alive - April 2016 - The Shoofly Magazine

Arts Alive - April 2016

4/1/2016

Dancing Babies and Grumpy Cats:
The Copyright Fair Use Doctrine in the Social Media Age

Every artist needs to know the rules of the copyright road - to protect themselves against inadvertent infringements and their work from being used without their knowledge. Attorney and Cleaver Correspondent Karen Fineran manages to make the legalese good reading!

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Moreover, many artists and creators, just like the public at large, may assume that pictures, videos and other online content are freely available to use and incorporate into their own works. Not always so.

In that vein, I often get asked about the principle of “fair use” regarding copyrighted materials, namely whether and to what extent that principle can come into play when a content creator incorporates the copyright-protected material of other people into his or her own original work. Or, for that matter, does the “fair use” defense apply to the re-posting, tweeting or pinning of copyright-protected content?

Most people understand the basic notion that copyright means that you have the right to stop someone else from copying your work without your permission. Copyright owners also have the right to control any “derivative works” based on or including their protected materials. This is an automatic right, and you don’t need a contract or a registration to copyright something.

But, to complicate matters, there is an exception to that rule. The “fair use doctrine” allows the public to use copyrighted images without license or permission in some circumstances, such as in education, commentary, criticism or news reporting. Fair use is a tricky area, though, with no precise parameters to follow. Courts use a complex, multi-factor test that considers the purpose of the use (e.g. whether it is commercial or nonprofit/educational), the amount of the portion of the work that was used in relation to the original work (generally, the more you use, the more likely you are in the wrong), and the effect of the use upon the potential market value of the copyrighted work (are you producing a competing product, one that would normally have to be paid for?).

One certainly can’t simply grab a copyrighted photo and then use it on one’s social media site just because it’s eye-catching and will draw more viewers. If the purpose is for financial gain, or to grow a business’s clientele, or gather more Facebook “likes,” it’s probably not a legitimate use. But, if the image (or song or whatever) is being used to comment on (or criticize) the topic in the photo, then it may indeed fall under fair use.

Recent developments involving the fair use doctrine can shed light on the trends in the legal system. The so-called “Dancing Baby” case has became famous for its focus on the type of ubiquitous activity that millions of ordinary people engage in when they post videos of family and friends that may only incidentally include copyrighted media. A mother in 2007 uploaded a 29-second video of her toddler bobbing in time while the Prince hit tune “Let’s Go Crazy” played in the background. The video was not particularly clever or uproarious, nor did it ever go viral in the sense that we know today. Moreover, the Prince recording that she used was a barely audible, muddy snippet of music in the background.

However, Universal objected and had YouTube take down the video under the Digital Millennium Copyright Act. The mother’s lawyers argued that she was protected by the fair use doctrine, and the case for the last eight years has become an iconic online copyright clash.

Late last year, the United States Court of Appeals for the Ninth Circuit cleared the way for the case to go to trial, and published a new guideline, ruling that rights holders must consider fair use before asking services like YouTube to take down videos that include material they control. Then, in March of this year, the Ninth Circuit issued a revised opinion that greatly strengthened the language of the “Dancing Baby Doctrine,” eliminating the portion of its opinion that stated that a fair use analysis need not be “searching or intensive.”

The amended opinion also seems to mean that automated computer programs and filters will no longer be able to substitute for a thorough fair use analysis, nor will any other cursory consideration, such as number of seconds of use. (Universal’s policy, for instance, had been to issue a takedown notice where a copyrighted work was “prominently featured” and to spare videos that contained one second or less of a Prince song.)

There are other reasons to believe that the fair use doctrine is becoming more entrenched in this new digital age. In February of this year, the Robert Rauschenberg Foundation decided to adopt a new policy of making the famed artist’s images much more widely available for free, without the necessity of licensing. The new policy essentially opens the gates to all but the most flagrantly commercial uses of Rauschenberg images, making clear that the artist’s images should be allowed to flow freely to the public for purposes like commentary, criticism, news reporting and scholarship. The Rauschenberg Foundation also is urging other artists’ estates or foundations to take a hard look at revising unnecessarily restrictive policies of their own.

The Dancing Baby Video

So, how can a creator/artist protect him or herself from liability, when incorporating material from other sources?

Creators often want to know how much of a popular song they can use in their videos, how much of a video clip they can feature, or how much of another’s image or design can be incorporated into their own new visual collage. There is no simple answer. Every situation is different.
In truth, anytime you use another’s content in your work, even when properly used and attributed, you put yourself in at least some risk of a complaint or a legal claim (especially with today’s use of computer automated flagging).

In instances where you believe that the benefits may outweigh the risks, and/or that the fair use doctrine may come into play, a few general guidelines may be helpful:

You could opt to use only original content. The safest course of action sometimes may be to express oneself without the use of somebody else’s content (or to use content that you’ve licensed). Check the original source of content for copyright notices or information about how the content may be used. When in doubt, obtain a license, or simply reach out to the photographer or artist and ask for permission. At the end of the day, it’s about exercising the same courtesy and respect for others’ rights that you would want them to use for you.
There are many free and paid stock photo services available online, and plenty of images that can be bought inexpensively or obtained for free. A Google Image search might also lead you to publicly reusable photos.
That an image has already been pinned or tweeted does not necessarily mean that re-pinning and/or re-tweeting it is non-infringing. Likewise, just because something has gone viral, it doesn’t mean that you can use it (as we speak, Grumpy Cat is suing a coffee maker for trademark and copyright infringement).
Instead of posting copyrighted content directly on your site, consider posting a link to the original source containing the content. Linking to content you don’t own is normally OK, but copying or “framing” third party content is much more likely to be considered infringement.
State clearly where the content came from and who authored it. While giving attribution to the original source is not a defense to infringement, it may help reduce the likelihood of receiving a complaint in the first place, and it supports a fair use defense if the issue goes to court.
If copyrighted content is posted by other social media users, check the social media network's terms and conditions for authorization to repost the content. For example, under Pinterest's terms of service, a user who posts content on Pinterest provides all other users a license to use that content on Pinterest.
Be cautious and seek the advice of counsel before using others’ content in your own creations, or sharing content belonging to others on social media sites.

On the flip side, how can you protect your own original works from being appropriated and used by others?

Fair use may sound like a great concept when you’re the creator wanting to use the content of other rights owners, but how do you protect your own original creations from being unfairly appropriated under the auspices of the fair use doctrine?

In today’s world, the most basic principles of creative protection for authors/creators are routinely challenged by others who want to use that content. For example, one well-known artist who makes the news frequently is Richard Prince (yes, another “Prince” is now making headlines about copyright fair use). Prince has made a decades-long career selling slightly altered versions of other people’s images. (And he has mostly avoided copyright infringement liability with this practice, as courts have ruled in his favor that “transformative works” may make use of copyright-protected materials without the owner’s consent.)

Most recently, in high-end Manhattan art galleries, Richard Prince has been exhibiting blown-up screen shots from his Instagram social media feed, and selling them for upwards of $100,000 each. Without seeking a license or asking for permission from the original Instragrammers who posted their original photographs on the site, or giving them any sort of attribution, he enlarges and jet-prints onto six-foot canvas his screenshots of their Instagram photos, often adding an original and cryptic remark or emoji to the comment thread within the captured frame. The original photos remain otherwise unmodified by Prince.

Imagine the surprise of the amateur photographers who hear through the grapevine that their selfies are being featured in high-end art shows and sold for a small fortune.
Once more, Prince is being sued by a photographer who challenges whether Prince’s transformations are sufficient to trigger fair use protection. This case and others like it are redefining the contours of digital age copyright law.

So, who owns your Instagram photos? The simple answer is you do. Individual Instagram users have no legal right to make use of another’s original content without permission. And, unlike Facebook, Twitter, and other social media sites, Instagram has no built-in functionality that enables sharing or reposting.

However, your effective rights may be extremely narrow. Posters technically retain an exclusive right to copy and distribute original images, but these rights are routinely infringed and nearly impossible to enforce. Content sharing on Instagram is ubiquitous, and unlike re-tweets (on Twitter) and re-pins (on Pinterest), these unendorsed reposts quite often omit attribution. Cropped screen-grabs, and applications like PhotoRepost and Regram, make it incredibly easy to share other users’ images.

What this means for you as an Instagram, YouTube, or Facebook poster is that others’ “substantially transformative” uses of your original content (even if only minimally changed from its original sound or appearance) may be considered legitimate, and may be sheltered by the fair use exception to copyright infringement.

Consider taking preventative steps to protect your original images, if you have concerns about your copyright position. Watermarking photographs decreases the likelihood of unattributed reproduction. Providing a notice of copyright protection, while not required to have copyright protection, may still strengthen your legal position.

Remember though that, while helpful, watermarks, notices, attributions, and disclaimers do not prove or disprove a copyright violation. The context in which appropriated content is repurposed also has important implications. For example, if a protected image is used without permission for a commercial purpose, this is almost certainly copyright infringement, and no attribution or disclaimer can rescue the infringer from liability. On the other hand, transformation of a work in the context of parody is much more likely to be considered fair use, even in the presence of a watermark or disclaimer.

Balancing the benefits of getting exposure for your creative works with the risks of theft and appropriation of your hard work is a constant challenge. Social media has become woven into our culture and is very likely here to stay. So whether posting, pinning, tweeting or “liking,” don’t be afraid to use social media to your benefit – just be sure to think things through before you post that image, video, or song, and before you re-post someone else’s post.