EFF: Bloggers' FAQ: Intellectual Property

Questions About Copyright
I found something interesting on someone else's blog. May I quote it?

Yes. Short quotations will usually be fair use, not copyright infringement. The Copyright Act says that "fair use...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." So if you are commenting on or criticizing an item someone else has posted, you have a fair use right to quote. The law favors "transformative" uses — commentary, either praise or criticism, is better than straight copying — but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as "transformative." The blog's author might also have granted you even more generous rights through a Creative Commons license, so you should check for that as well.

What is fair use?

There are no hard and fast rules for fair use (and anyone who tells you that a set number of words or percentage of a work is "fair" is talking about guidelines, not the law). The Copyright Act sets out four factors for courts to look at (17 U.S.C. § 107):

* The purpose and character of the use. Transformative uses are favored over mere copying. Non-commercial uses are also more likely fair.
* The nature of the copyrighted work. Is the original factual in nature or fiction? Published or unpublished? Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.
* The amount and substantiality of the portion used. Copying nearly all of a work, or copying its "heart" is less likely to be fair.
* The effect on the market or potential market. This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it's unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair. Linking to the original may also help to diminish the substitution effect. Note that criticism or parody that has the side effect of reducing a market may be fair because of its transformative character. In other words, if your criticism of a product is so powerful that people stop buying the product, that doesn't count as having an "effect on the market for the work" under copyright law.

May I freely copy from federal government documents?

Yes. Works produced by the US government, or any government agency or person acting in a government capacity, are in the public domain. So are the texts of legal cases and statutes from state or federal government. Private contractors working for the government, however, can transfer copyrights to the US government.

Am I free to copy facts and ideas?

Yes. You are free to report the facts and ideas embodied in another person's article or web page. Copyright only protects the expression — the combination of words and structure that expresses the factual information — not the facts themselves.

How does a Creative Commons license help?

Creative Commons licenses provide a standard way for authors to declare their works "some rights reserved" (instead of "all rights"). If the source you're quoting has a Creative Commons license or public domain dedication, you may have extra rights to use the content. Licenses don't trump fair use, but if you want to do more than fair use allows, look at the terms of the license to see what it permits and what, if anything, it requires you to do in return. The attribution license for example, lets you copy, distribute, and display a work so long as you name the original author. Share-alike lets you make derivative works so long as you use the same license for your re-mix. A work in the public domain is no longer under copyright, so you can use as much as you want in any way you like.

I'd like to let other people copy from my blog. Can I license it?

Sure. The Creative Commons licenses provide several copy and share licenses complete with legal code, computer code, and a human-readable declaration and graphic to let others know that they're invited to copy and share. You can choose whether to require attribution, permit commercial use, or allow modifications. If someone wants to do more than is permitted by fair use or the terms of your license, they can still contact you for permission. See Creative Common's licensing page for more information, or generate your own license.

If a reader comments on my blog, does she license the rights to me?

When a person enters comments on a blog for the purpose of public display, he is probably giving an implied license at least for that display and the incidental copying that goes along with it. If you want to make things clearer, you can add a Creative Commons license to your blog's comment post page and a statement that by posting comments, writers agree to license them under it.

Can I "deep link" to someone else's website or blog post?

Yes. Most people are happy to have other websites link to them. Indeed, "permalinks" for each blog post, to which others can link directly, are one of the features that have helped blogs and blog conversations take off. But some website owners complain that deep links — links that lead readers to an internal page on a website — "steal" traffic to the homepage or disrupt the intended flow of their websites. For example, Ticketmaster has argued that other sites should not be permitted to send browsers directly to Ticketmaster event listings. Ticketmaster settled a claim against Microsoft and lost a suit it had brought against Tickets.com over deep linking. See Ticketmaster v. Tickets.com. So far, the courts have found that deep links to web pages are neither copyright infringement nor trespass. No court has enforced a website's terms of use that bar deep linking.

When can I borrow someone's images for my blog post?

Images are subject to the same copyright and fair use laws as written materials, so here too you'll want to think about the fair use factors that might apply. Is the image used in a transformative way? Are you taking only what's necessary to convey your point? A thumbnail (reduced-size) image, or a portion of a larger image is more likely to be fair use than taking an entire full-size image. If you want to go beyond fair use, look for Creative Commons licensed images.

I want to parody someone. Can I use some of their images and text in my parody?

Yes, parody is recognized as a type of fair use, like other commentary and criticism, and courts recognize that a parody must often take recognizable elements from the work it comments upon.

Courts do distinguish parody from satire. Parody copies from the object it mocks, while satire uses recognizable elements from the original work to mock something else or society in general. Parody gets broader fair use leeway than satire. If you want to make fun of Roy Orbison by changing "Pretty Woman" to "Big Hairy Woman," that's non-infringing parody; but if you make fun of the O.J. Simpson trial using Dr. Seuss illustrations and rhymes, that's satire and in one famous case, it was found to be infringing (Campbell v. Acuff-Rose, Dr. Seuss Enterprises, L.P. v. Penguin Books U.S.A., Inc.).

More general FAQs about copyright: http://www.chillingeffects.org/copyright/faq

EFF: Bloggers' FAQ: Intellectual PropertyEFF: Bloggers' FAQ: Intellectual Property