Do Not Mistake Internet Sharing With Having A Copyright License

by Michelle Sherman

It may seem in looking at photographs, videos and articles reposted on the Internet that the copyright laws have been eased, and there is more latitude to use someone’s original work without permission. This is a wrong assumption to make.

It is also wrong to believe that copyright holders must now take measures to keep people from copying, displaying or distributing their work. For example, Pinterest can offer a “No Pin” meta tag that copyright holders can use on their websites to prevent someone from uploading content, but it is not a defense if the copyright holders do not take advantage of it. This is a band aid that may reduce the number of copyright violations, but it does not create a duty for the copyright holder to protect his interests.

1. There Is A Difference Between “Sharing” And “Taking”

There is also not an “implied license” to use copyrighted material because it appears somewhere on the Internet. Much of what is on the Internet is being “shared” with the copyright owner’s permission through social media sites such as YouTube, Facebook and Twitter. When the owner posts her content on the site, she agrees to terms of service that usually include a non-exclusive, worldwide license. YouTube’s Terms of Service are a good example:

“[B]y submitting content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. ”

This license also includes the right of YouTube users to use and display the content through the means provided by YouTube and subject to its rules for commercial uses:

“You [the copyright holder] also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.”

The license does not extend to other creative works on the Internet, or to uses not covered by the license on YouTube. See Agence France Presse v. Morel, 769 F. Supp. 2d 295, 303 (S.D.N.Y. 2011) (finding the license to use photographs of the Haiti disaster only extended to Twitter and its partners, and not the online photo database).

2. The Fair Use Defense Allows For Some Creative Leeway In Using Copyrighted Material

On the Internet, there is content that is covered by the most commonly asserted defense to a copyright infringement claim – the “fair use” defense. Some examples of fair use in the preamble to 17 U.S.C. § 107 include: “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Federal courts decide fair use issues by considering the four listed (but not exclusive) factors in Section 107:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for profit 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.

Drawing from Internet related cases in which courts found there was fair use, there have been proposed solutions to the pinning of images on Pinterest. These proposed solutions are untested in the courts, and do not necessarily mirror the facts of the case law on which they may be based.

For example, it has been suggested that people pin a “thumbnail” copy of the original picture. The case on which this proposed solution is most likely based involved low resolution, thumbnail images with a link to the website of the copyright holder and a full size copy of the image. Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003). The Ninth Circuit Court held that the use of the plaintiff’s images as low resolution, thumbnails in defendant’s search engine was a fair use.

On Pinterest, the pinned images may link back to the original site, but not always. The pinned images may also have a better resolution than they did in Kelly. However, one fact in favor of fair use and pinned images on Pinterest is that the thumbnail images are typically pinned with other items on a pinboard, thereby, adding new meaning to the picture in the context of the message or theme being communicated by the pinboard.

It has also been suggested that people can minimize the legal risks of copyrighted material on Pinterest by attaching a “comment” to the pinned images. This suggestion is also based on the fair use defense, so the comment needs to be more than a simple description of what is being pictured. It should add something new to the original picture. And, again, the burden is on the person pinning to demonstrate the defense applies.

3. Conclusion

The safest course of action for using copyrighted material on the Internet is to use the share features in accordance with the terms of service, or to get permission or a license from the copyright holder before using the material. Fair use is a commonly used defense, and is designed to promote creativity, but it does not avoid the costs of litigation if the copyright holder disagrees and brings a copyright infringement action.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Michelle Sherman, Michelle Sherman | Attorney Advertising

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