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Are You Blogging Within Your Fair Use Rights?

Fair Use Rooted in 1st Amendment

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With all of the struggles and controversies surrounding the news industry these days, there is a lot of confusion out there about what falls under fair use and what doesn’t. The more savvy bloggers who have been in the game for a while usually have a better grasp on the concept, but there are still plenty of others who aren’t so well versed. After all, anyone can start a blog, and not everyone comes from a news or legal background.

Do you every worry about quoting major media sources? Discuss here.

At SXSW last month, WebProNews spoke with Pat Aufderheide, the Executive Director for the Center of Social Media at American University, who has worked with the university’s law school on developing best practices for fair use, and Attorney Michael Donaldson of the law firm Donaldson & Callif.

"Fair use is part of copyright law, and it says you have the right to use other people’s copyrighted material without licensing it, without paying for it, or even asking them permission under some circumstances," said Aufderheide. "The law itself is rather vague, so the question is , ‘how do you interpret that law?’"

Good thing we had a lawyer present. "Fair use is rooted in the first amendment," said Donaldson. "So if you’re telling a story, and you need or want, and it’s reasonable to use little pieces of other people’s stuff to tell that story, that’s protected as a first amendment right."

"If you keep in mind the first amendment origins of fair use, you’ll have a good starting point," he added.

According to Aufderheide, one thing judges will ask is "did you use this for a different purpose than the original or are you merely taking something that somebody’s actually selling, and getting it for free?" Basically – are you taking market value from them?

In the case of news and blogging, she says some of the traditional media sites have legitimate issues legally, but not always. She equates a great deal of the pushback from traditional media to hysteria over a dying business model. If you take a whole article from the Washington Post for example, and put it on your site, you’re taking what belongs to them and taking market value from them. This is basically plagiarism anyway. On the other hand. However…

"Bloggers have a perfect right to quote in context, and to say ‘the Washington Post said this’ and ‘here’s how the Times covered it’, and here’s a link to the whole article if you want to look at that," says Aufderheide. "And they have a perfect right as well to quote pictures, images, and to link to video on a commercial site that is producing that stuff, once again within context. What is it that they’re doing that is different from the original site? And then I think bloggers are doing just fine, and they’re employing their fair use rights just like scholars do every day when they quote several previous scholars and write in their articles that these previous scholars didn’t know what they were talking about when they said x, y, and z, and I’m right."

Donaldson added that "there’s no first amendment right to steal something and make money off it," and to just keep in mind those 1st amendment origins of fair use law.

Watch the video above for a great deal more insight into the fair use issue.

What is your take on fair use? We’d like to hear your thoughts.

Are You Blogging Within Your Fair Use Rights?


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  • http://www.motherearthrecycling.com Lisa

    Thank you for this article. You’ve cleared some things up for me as concerns what I can and cannot say, when blogging. So often, it is hard to comeup with good content soley on one’s own and this helps define some of the blury edges.

  • Dave

    I wonder how any type of law related to plagiarism can be upheld across the globe. There could be rouge bloggers (and are) from countries like Iran or even China who directly steal other people’s content, make money from it, de-value the original author and can never be prosecuted.

  • http://geledek.com komputer

    recommended this articles to my friend, thanks for sharing for this useful information, Good Job

  • ij

    There is no way that you can draw some clear limits for fair use. I think that anythingh that is for public interest is fair use. How do you define public interest? Again no clear limits for this concept. The only thingh you can do is to be quick. Who has the story first gets the biggest audience.

  • http://twoguelphauthors.webs.com Vladilyich

    I have always used the rules of thumb that I will only use the first two or three sentences of someone else’s work and then link to the rest of it. If there is an embedded third-party quote, I will attribute it but only include two sentences (in quotes) with a link.

  • http://www.peapolzmedia.com JP

    What if you’re located and blog from a non-USA country where there is NO SUCH thing as First Amendment Rights. What are rules?

    • Stupidscript

      The rules are as they always have been and always will be, with regard to this topic or any other that deals with work that other people have done:

      Simply, attribute what you publish to those who created it, and be fair in your dealings with other people.

      Laws are codified references to what people should be doing, anyway, and laws provide for a way to punish those who do not do what people should be doing, anyway. Sure, there is a law that says, “You may not kill another person”, but did you really need a law to know that you should not kill another person?

      Likewise, US Copyright law lays out the legal arguments involved in protecting the work someone else has done from being stolen by somebody else who did not do the work. Are they really necessary laws? Yes, because people will always try to steal what someone else has worked to provide, and Copyright laws provide a way to punish those people who simply cannot understand that they are part of the human race, and not some selfish little universe all to themselves. But it should be easy for any person to recognize when they are stealing from someone else, and to stop themselves from doing it.

      Don’t wait for your country’s government to enact laws. You know what is right. Do the right thing.

  • http://www.SusanGrisantiGuitarist.BlogSpot.com Susan Grisanti Guitarist

    There was a case years ago where China stole
    several of Garth Brooks songs & remanufactured the
    CD’s there & never paid Garth Brooks a dime.
    He decided not to sue them because he said
    ‘It’s just making me more famous in China’ ~
    In other words, people there might hear his music
    & buy his legitimate product as a result of the
    rogue product’s marketing.
    I realize this is not directly about blogging but it
    is about intellectual property issues. Sometimes we
    need to think outside of the box on these issues.

  • http://AnnArborRealEstateTalk.com Missy

    How does this fit in with Posterous, where you just email or submit from the booklet?

    Obviously it gives credit, but is usually the whole article?

  • http://www.goldeneramart.com Riley

    This article has highlighted some of my concerns. I’ve always held that as long as you give due credit to the original writer of the article this is not plagiarism and you are within your rights. You are in fact not stealing the article but giving additional exposure to this article and bringing it to a larger audience.

  • http://www.charlesnierva.com Charles

    thank you very much for this article and i agree with the 1st commenter that these cleared some things up as concerns to blogging. Of course, source links are placed for crediting the author and site.

  • http://www.fixpcfreeze.com Mathews

    After the FTC rules came in I was bit scared to give even my own experiences and comments. This article removes all my doubts and I feel confident as before. Thanks

  • http://www.sgnature.eu.com Steve @ web design kent

    Blogs turn wannabe’s into journo’s – NOT

    Self publishing is a great opportunity to get your message out there. Problem is it’s really hard to monitor, let alone regulate, as mentined here already.

    Googles duplicate content penalty and organisations like copyscape.com are trying to address the issue. This article will help to differentiate between accidental copyright infingement and the out-and-out plagiarists, who don’t seem to have a conscience :-(

  • Mike

    I don’t get it… The Blogger’s are posting links to articles whereby the Bloggle’s should be getting paid for clicks going back to the news publishers. After all the news industry is receiving business from these Bloggers. I’ll tell you what, please post links to my website so that I can get clicks that I don’t have to pay for! And Dave is so right. You have all these other counties de-valuing the original author.

    From what I can see, the Blogger’s in this county are simply posting links of interest for their audience and keeping the news industry alive.

    Please correct me if I’m missing something here…

  • http://www.exhibitpotential.com Evan Weitzberg

    And others who have blurred the line of perception. Much like Shepards Faireys fight with AP news to credit the Obama Hope poster. There is a big difference between interpretation and stealing we know the difference in our heart. Until it is about you and maybe your views will change.

  • http://affiliatewebsitereview.com Rick

    I cited your story on a Forum that I participate it and wrote a post explaining Fair Use… now that I know something about it and how it is applied. We’ve had several recent posts on this Forum where people simple copied and pasted someone else’ story and got banned for plagarism.

    Again, thanks for passing on this valuable information!!

    All the Best,

    Rick

    Ref: http://acme-people-search-forum.com/post/117676/#p117676

  • http://www.worldtravelingartist.com Alexander

    Made me immidiately think of my own story (http://www.worldtravelingartist.com/2008/08/20/modern-way-of-stealing-passwords), that was taken over by Telegraaf (Dutch daily newspaper) a year and half ago or so. They published it in their print edition, as well as on their internet site, where then came a discussion. The most funny part of the discussion (as far as I followed it back then) for me was, that some people started b*tching with questions like: “wtf is he.. a webdesigner or a make-up artist?!” :))

    … and the most important part indeed (back to your post now), they didn’t even bother to link to my own (blog) story, where everything was clearly explained.

    The bottom line is, passwords get stolen every day, it’s a fact. So, it’s going on, and on for years now.. and in the future it’s only be worse. To be perfectly honest, I wrote it to steal some traffic (of the site in issue), so there was nothing new about it in my writing whatsoever. An average, self respected journalist should know that better then anyone else, I think.

    At the end, I think my “world travel” project would’ve been far more interesting for their newspaper back then, but they elegantly ignored that part as well. hahaha.

  • http://realtijuana.blogspot.com The Real Tijuana

    To answer JP’s question, most of the world’s constitutions do not contain any amendments but that does not mean they do not offer protections similar to the U.S.’s First Amendment. Here in Mexico, for example, our copyright is regulated by the Ley Federal del Derecho de Autor, as authorized by Article 28 of our federal Constitution. The doctrine of Fair Use is expressed in Title VI (articles 147

  • http://Lillicotch.com Jim L

    From what I’m reading these days the publishing (recording, movie) industry says you don’t have any “Fair Use” anymore. Even less if ACTA passes.

  • http://www.Doug-Peters.com Doug Peters

    My issue is with the fact that the plagiarizing party did not ask permission to use an image (whether artwork or photograph). I often give out my original website graphic buttons and design elements for free as samples of the work I have done which is available on a CD that I sell.

    I do it for a few reasons…
    1) To promote the CD sales (which includes a much larger website image elements collection).
    2) To gain traffic to my website.
    3) To possibly generate interest in my web design skills and services.
    4) To get links pointing into my website.

    When I did this (that site is currently under redesign) *Everything* is there for the taking for free under the agreement that 1) it remains my Copyrighted original art and 2) that my website remains the sole distribution point for each and every collection (a person can not redistribute it through his/her website).

    So, I do expect to see my images on other people’s websites once in a while. I am very happy to find them there when they are incorporated into, or set the design of a website.

    But as soon as someone else blogs something like, “hey, check out this nice theme set of button and design elements” which they have put together out of all my different categories of fully functional samples… if they are showing all the elements there, they are plagiarizing my work by repackaging it and republishing for redistribution. …unless, of course, that person has gotten my explicit permission to showcase my talent with his collection of elements he put together from my larger collection of various styles.

    My point is that this is not nearly always about money. It is about permission. As the authors of original artwork, we are entitled to ALL rights concerning how our work is used, because that IS how we try to make our living. To copy a web designer’s ideas and products is not the same as copying a photo of a person from a news story about him/her. And to copy any of a photographer’s portfolio just because you know that person is not reason enough to steal that artwork.

    Especially when it is art, there are real issues involved in reuse, whether these are monetary generation objects or not. In my case fair use is explicitly spelled out and given for the purpose of web design and I only ask for a link back to my website to use them. But other uses are not guaranteed. Not without getting permission from the Copyright holder, first.

    Also, you have to realize that every photograph has a photographer. I don’t care if it is news, that photograph is a work of art and a news agency probably employed someone or licensed it in order to display it on their site with the article. It is either their property, or the artist’s. And when someone takes it without even attempting to ask permission, I still see that as Copyright infringement. Why should they be able to benefit off of an another artist’s work for free if they don’t even bother to get permission for fair use in the first place? There are always other sources for images that are free. It doesn’t necessarily have to be the one with the story that can provide the details.

    Free sources of images include news stories that are older than the Copyright of the story, public domain, freeware and general use license images, and they can be found at free stock photo, free stock art, free cartoon, free graphics libraries.

    It is one thing to simply steal. It is another when you have the permission to use an image object. And you would be surprised how nice we artists can be, if and when asked for permission, first, before using an image.

    What it really boils down to is whether or not some people offer the respect of a common courtesy, asking permission for reuse. This is not to say that we will always give it, but I am sure that you will be surprised how many times we might when treated considerately and fairly.

  • http://www.newenglandbedbugforum.org Jon Cook

    One blog I run is about bed bug issues in the New England states including New York. There is a vast amount of information out their on bed bug habits, inspection, and extermination. I always take the information from more than one area and rewrite it in my own words and thoughts as it pertains to our area. I have had people copy and paste my writing on their site without giving me any credit and besides the point that they are making money of my original thoughts it does them hardly any good with search engines because this is considered mirror content. I would never take what someone wrote, copy, and paste it onto my sites. It is an awful feeling when some one does this to me and I would not want to do the same to another person. I also think that savvy visitors to sites can tell when information is original and when it is stolen. I for one revisit sites that have original, well thought out content and don’t bother going back to sites that rip off content.

  • http://hubpages.com/profile/dame+scribe Gin

    I think news sources that are quoted as orginal providers should be very satisfied that they are getting a mention and having their link sprinkled to some unknown corner of the ‘blogosphere’ as link juice is key to the internet marketing efforts for any business.

  • http://www.andrewmolobetsi.com Andrew Molobetsi

    Hi Chris and thanks for the reminder. What is fair use?To use an example, fair use means that you’re allowed to take one or two pieces of meat from the pot just to satisfy your hunger. If you take more than is necessary the owner of the meat has the right to complain.
    Same applies to somebody else’s written work. Best thing to do when blogging is to write a short intro plus two, maybe thr

  • http://www.worldtravelingartist.com Alexander

    From one of 4 sites I own and run, the most frequently stolen page, is “general terms and conditions.” :p

    So I google on it’s content regulary..
    The e-mail conversation then goes often like this:

    ME: Dude, I just found out you stole my content. I ask you kindly to shut down that particular page from your site.. I want you to do it straight away.
    Him: Oh, I did it because those were the best terms and conditions I’ve ever read.
    Me: Did it give you the right to steal it?
    Him: Hmmm… no. You’re absolutely right, I’m sorry. But please, can I still use it?
    Me: No.
    Him: Why not?
    Me: Because it’s my work, not yours and above of all, Google doesn’t like copies and neither do I.. you’re my competitor for Gods sake!
    Him: Please?
    Me: Jeeeeez… are you retarded or somethin’? I asked you to remove it, unless you want to meet me in a court.. I give you 3 business days and there will be no further warning nor mailing with you.

    That’s how extreme it can often get.

  • http://www.gen-assist.com Guest

    Yeah: I remembered this from my high school journalism days…. “Fair use is rooted in the first amendment,” said Donaldson. “So if you’re telling a story, and you need or want, and it’s reasonable to use little pieces of other people’s stuff to tell that story, that’s protected as a first amendment right.”

  • http://businessphereconsulting.com Eli @ Business Sphere

    This is a good and informative article, especially for bloggers. I know there are some bloggers who steal content, other than using private label rights articles which are legal. The reason why some bloggers use other people’s articles is that writing original content is hard. Besides, if you analyze it deeply, very few ideas are original. Many ideas being written and published today have been already said earlier. Most ideas you find expressed in many articles were mere restatement of previous articles, though stated differently.

  • http://www.worldtravelingartist.com Alexander

    Perhaps u should mail it to Murdoch, so he stops b*tchin’ agains Google for a while on that subject?! ;-)

  • http://www.acomputerportal.com/webmaster_law.html Web Master Law. Legal issues for Web Masters

    Now lawers get there mitts on the Internet, it is the beginning of the end.

    Embed code for video fails IE8:-

    http://www.webpronews.com/topnews/2010/04/16/are-you-blogging-within-your-fair-use-rights

    • Chris Crum

      Thanks for letting us know. I’ll alert the video crew.

  • http://www.rentbrandon.com Brandon Rentals

    I guess the real question, for those looking to create and monetize websites with others content, is whether or not it is “legal” to have a website full of articles that say “The Washington Post just released an article that says…” and then just quotes the entire article with a link back to the Washington Post.

    I have seen many of these garbage sites, but they are more and more popping up as “SEO Services” everyday to help promote “real sites” so it is a complicated situation, specially when programming allows for sites to be created with massive amounts of content by purely grabbing content from other sites and rehashing them.

  • http://www.simple-elegant-websites.com Oiseaux

    If I use any body else’s material I always place it in quotation marks and name where I got it from. If I understand this article correctly that’s more than I am expected to do in the strict definition of the US law but I haven’t a clue what the law is in France where I live. Something tells me it makes Murdoch’s rants even more ridiculous.

  • http://www.clicksweeper.com Jennifer

    Something I find helpful to keep in mind when I’m blogging is that using facts from another source (which I cite or link to) in order to ground or back up my own opinions or commentary is fine. But having gone through several university lectures on plagiarism, I’m leery about posting anything that has not *primarily* come from my own experience or thoughts, even with a full citation and link. I’m sure there are situations in which summarizing or paraphrasing is appropriate, but I also think it needs to be done with a high degree of integrity.

  • http://www.iamkaran.com Karan

    According to first amendment, can we use the one third part of the article and post it in our blog? Below that one third part, if we give a link that Soruce: Huffington Post with a link to the article. Would that be legal?

  • http://www.wpeg.net Jim

    After 30 years in the communications field, I find this subject has reared it’s ugly head so many times that I can’t remember how many. That said, I’ve found my sounding board to the Fair Rights Use issue to be the same as the fundamental reason I went into the communications field. That reason was, and still is, that I had something to say about something or someone. Be it an original script for film or Tv, or blasting out some tidbit on the social media arena.

    I’ve also come to reason that anyone in the communications world that doesn’t have the process to present an editorial, documentary, or news-line blurb, perhaps shouldn’t be in the communications field at all. Ideas are hard to come by at times, and occasionally that means just sitting on the sidelines for a while. Great communications starts with keen observation and observation time doesn’t sit well in the fast paced world of today’s social media outlets.

    Quoting someone should be the result of an impact on a person, and should always credentialed. It takes time to get credentials sometimes, but I don’t think I’ve never been refused when I’ve asked them. I also see that asking for reprinting rights shows a certain amount of respect. That respect I fear, may be lost in the immediacy of today’s blogs, websites, and emails. I think that that loss may also be attributed to the cut throat practices of publishers, editors, and news desks of days gone by. Get the by-line first, or loose your job. Today . . . it’s what job, I’m a blogger.

    Just a thought and a perspective.

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