Fair Use. Points for bloggers

Continuing our series of posts on fair use.

Melanie Votaw, friend, author, and freelance writer, details what bloggers need to know about fair use. (printed with her permission.)

Points for bloggers to remember when using a writer’s work

1. Internet material is not free for use. Too many people, bloggers included, seem to believe that anything on the Internet is free for their use. The law says otherwise. Website copy is not free to be used unless it explicitly says so on that website or you have received explicit permission from the copyright holder. This applies to writing and artwork of all types. And giving credit to the original writer still does not allow you to violate copyright law.

2. Copyright law applies to blogs and other websites. Copyright infringement applies online just as it does in print, including blogs. The Digital Millennium Act signed by President Clinton in 1998 solidified this fact. Copyright law contains no exceptions or exemptions for bloggers or ezine publishers.

3. Understand “fair use.” It’s customary for blogs to take large portions of an article or even an entire article and paste it into the blog, followed by comments. This is blatant copyright infringement. It is NOT “fair use.” While the law’s description of fair use may be somewhat vague, it certainly doesn’t apply to quoting large portions of an article or book. According to the law, there are four factors that go into deciding whether a given use of copyrighted material is considered 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.
4. the effect of the use upon the potential market for or value of the copyrighted work.

Fair use allows you to use short quotes or even a paragraph, as long as you credit the original writer. Bloggers should carefully review the fair use guidelines because any blogger who cuts and pastes large sections of an article is setting himself or herself up for a copyright infringement lawsuit (or 2 or 3.) A blogger is vulnerable to lawsuits from individuals as well as corporations who own the rights to the work being used. Since the law is on the side of the copyright holder, a blogger has little hope of winning any such lawsuit.

In order to avoid using large portions of someone else’s work, many bloggers paraphrase the key points of the original work, linking back to the original article. This brings more of you into your blog anyway, allowing you to get your own voice in there, do your own thinking, and make your own connections. It will probably also attract more people to your blog.

You can even use both HREF and TITLE tags so that the article will appear in its own window, which prevents you from sending readers away from your site. Incorporating someone else’s writing on your blog is distracting. Besides, if you are often posting the work of others, you’re not adding what you could to the discussion.

4. Copyright law applies whether or not your blog makes money. Blogging is publishing, whether your blog is non-profit or profit. If you steal a car and resell it, steal it and drive it, steal it and turn it into a taxi, or steal it and donate it to charity, it makes no difference. Theft is theft â┚¬â€œ it is up to the owner of any property to decide how that property should or should not be used â┚¬â€œ and this includes intellectual property.

5. It isn’t always the number of words, but the importance of the words. Pay attention to point #4 of the fair use language. A decision in 2000 in the case of Cook v. Robbins found that just a couple of two-word phrases used by Robbins was considered copyright infringement against Cook because those phrases were so important to Cook’s work. While this is rare, fair use can indeed sometimes be tricky. Before quoting a section of text, review the fair use criteria to determine whether you truly believe your article meets them.

Note that quoting 150 words from an article is not the same as quoting 150 words from a poem. In terms of fair use, you always need to think about the length of the original piece and how important the words that you’re using are to the heart of the piece. With short work of a highly creative nature such as poems and song lyrics, the only safe recourse is to get permission.

6. Reprinting articles without permission lessens their market value. This brings us to the freelancer’s point of view. Most bloggers probably have no idea about this, but you could seriously limit the potential market value of an article when you publish substantial portions of it on your blog. If a blog has published a large portion of an article online without permission, another magazine which might pay to republish the article is likely to turn it down because the article has received too much exposure. This robs the copyright holder of potential income.

7. Writers are not flattered when their work is stolen. Some bloggers have argued that a writer should be flattered to have their work picked up by a blog and seen by so many. Using this analogy, a writer should also be flattered that the New York Times wants to publish an article for free.

Bloggers also enjoy the same copyright protection for their original material and should take steps to protect it. The US Copyright office publishes a basic guide to Copyright and fair use. It applies to anyone who wants to use another’s work, and every blogger should have a copy.

8. Copyright law is not behind the times. Bloggers have also argued that the copyright law needs to catch up to technology. The Digital Millennium Act of 1998 belies this argument, but beyond that, violating copyright law on the Internet is actually more serious than in print, since so many more people have access to the material. While large corporations often try to manipulate rights from individuals, you can be sure that these same corporations will not readily give up their intellectual property rights, and they’ll put plenty of money behind maintaining the legislation that protects those rights.

Bloggers simply need to read copyright law for themselves and have an understanding of what truly constitutes fair use. Listening to what your friends believe to be true isn’t good enough and does nothing to protect you from potential lawsuits. As bloggers add more and more of their own content to their blogs, they, too, may find their copyrights infringed. Learn to protect your own work while you protect the work of others.

This information was compiled by several prominent freelance writers (not attorneys) who are members of various professional writers’ organizations, including the Society of Professional Journalists, the American Society of Journalists and Authors, and the Authors Guild.

— Melanie Votaw