I first posted this back in March when Sore Loserman Bill Schmalfeldt was on another one of his copyright tirades. Back then, he was torqued because he was being truthfully quoted about something he has said on his Internet talk show du jour and because the quote was being backed up with mp3 files of the program audio.
Fair Use and Copyright
One of the methods some people and organizations have used to attempt to squelch criticism is to claim that their copyrights have been violated and that the offending material must be removed from circulation. IANAL, but here is my understanding of why such claims are not always legal when applied to criticism or news reporting.
Justice Joseph Story wrote in Folsom v. Marsh that a
reviewer may fairly cite largely from the original work, if his design be really and truly to use passages for the purposes of fair and reasonable criticism.
Congress has taken the case law from such decisions and codified it in 17 USC 107 which applies this four-fold test for fair use:
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.
Some try to rely on the mythical “30-Second Rule” about using audio or video. (That “rule” comes from the licensing terms of a digital rights organization and has no legal consequence except between that group and its licensees.) Note that there is no arbitrary time limit in the law.
So how does that work out in the real world?
How might a court interpret the use of a 44 second audio clip in a critical review of someone’s speech?
Was it used as part of fair and reasonable criticism? Was the use commercial or non-commercial? How long was the speech; is 44 seconds out of more than an hour a substantial portion? Did the use of the clip unfairly affect the market value of the entire work or did it support honest criticism?
Fairly extensive complete quotations and/or clips are sometimes required for fair context. A good example is the See It Now broadcast that Edward R. Murrow did on Joseph McCarthy.
The attempted use of copyright to suppress criticism or news reporting can backfire. Diebold tried it and wound up settling with Online Policy Group for $125,000.
BTW, fair use also includes parody. This why Hogewash! has not gone after certain uses of copyrighted photographs.
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The Cabin Boy seems to think that I’m claiming ownership of that photograph of him. No. I’m not. I don’t even claim ownership of the the StarWars VI parody that he’s foaming at the keyboard over. However, Schmalfeldt has not properly demonstrated ownership of the rights either. He has admitted that he isn’t the photographer. I’m sure someone owns the rights, but I doubt that it’s Cabin Boy Bill.
However, my defense of the publication of the parody is that the use of the still from The Return of the Jedi and the pictures of the three faces are legal under the Fair Use doctrine cited above. I argue that the purpose of the person who created the image was criticism and parody. Furthermore, only small portions of the original photographs of the three individuals were used, not substantial portions. Additionally, I assert that the value of the original images was not diminished by the parody. Indeed, the value of the picture of Schmalfeldt may have been enhanced.
One of the principal topics of Hogewash! is First Amendment issues. I got involved in this whole mess with Team Kimberlin because of Brett Kimberlin’s outrageous attempts to suppress free speech.
I am serious as a heart attack about this—I don’t intend to meekly allow any member of Team Kimberlin to succeed in an attack on my First Amendment rights. That includes Bill Schmalfeldt.
Perhaps I can get pro bono help from a blogger who helps others subject to bogus censorship …
Oh, one more thing … While I have suggested that it might be wise to remove offensive material, I have never sent anyone a DMCA takedown notice. Ever.