Primer on Copyright Liability and Fair Use

David Ardia
8:48 AM | bio | Comments: 0

As a lead up to next week's launch of the Citizen Media Law Project's Legal Guide, we are putting up longer, substantive blog posts on various subjects covered in the guide. This post, which discusses copyright and fair use in the context of citizen media, is the second in our series of legal primers. The first addressed the subject of immunity and liability for third-party content under section 230 of the Communications Decency Act.

Because the primer is too long for me to republish here, I've included just a summary. If you are interested in reading more, the entire primer can be found on the Citizen Media Law Project's blog.

A broad array of creative, expressive media are subject to copyright protection, including literature, photographs, music compositions and recordings, films, paintings and sculptures, and news articles - any "original work of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102. Citizen media creators who use the works of others need to be careful that they do not open themselves to copyright liability when doing so.
Fortunately, there are several circumstances in which the work of others may be used without liability. Bare facts and ideas, government documents, and items in the public domain are not subject to copyright, and some materials may be published under a Creative Commons license or other license that permits reuse. In addition, the doctrine of fair use provides that copyrighted materials may be used without the consent of the original owner in certain situations, such as when using excerpts for criticism or news reporting.

While there is no definitive test for determining whether your use of another's copyrighted work is a fair use, there are several things you can do to minimize your risk of copyright liability:

Use only as much of the copyrighted work as is necessary to accomplish your purpose or convey your message;

Use the work in such a way that it is clear that your purpose is commentary, news reporting, or criticism;

Add something new or beneficial (don't just copy it -- improve it!);

If your source is nonfiction, limit your copying to the facts and data; and

Seek out Creative Commons or other freely licensed works when such substitutions can be made and respect the attribution requests in those works.