Fair Use Dos and Don'ts: What Bloggers Can Learn From "Twilight"

8 years ago

Whether you are a novice solo blogger or a seasoned online community entrepreneur, you've got to stay on top of the laws of fair use -- the rules governing how much of someone else's work you can copy for comment or other purposes. And that's a challenge, because not even the US Copyright office itself can give you a simple definition of what the legal doctrine of fair use means in practice:

"The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

To add to the confusion, some copyright holders are more uptight than others about restricting their content. The Associated Press, for example, has gained a reputation for being notoriously zealous in pursuing those who cite or remix its content that even a savvy blogger like our Contributing Editor Virginia De Bolt is leery. And the experts don't always agree, as Photo Attorney Carolyn write noted in this blog post about two courts' conflicting decisions about whether using a photo on a sculpture on a postage stamp constituted fair use or copyright infringement.

But there are some general guidelines that can protect you. So here's a list of dos and don'ts that will likely keep you safe:

  • Don't cite a search engine or other third party as a copyright holder. (I've seen more than one beginner cite "Google Images" for example. No, folks -- Google doesn't hold the copyright for the images it displays.
  • Don't copy entire articles or blog posts, unless the work is clearly marked with a license that allows for that kind of sharing, such as a Creative Commons license. Fair use allows you to take brief excerpts for citation and comment, or as part of a "transformative work" that is manifestly different from the original.
  • One of the places where this can become challenging is when fans "remix" a popular work. Jacqueline Lipton has a helpful example of a fan video that seems to stay well within fair use doctrine. This mashup of Twilight and Buffy the Vampire Slayer uses very short excerpts from each work to create a completely new storyline. The integrity of the original works isn't violated.

    • Make sure that all quoted material is clearly marked, either with quotation marks, block quotes, or both. Always link to the source if you can. Attribution alone will not protect you from copyright infringement, but failing to attribute is asking for trouble.
    • Use only as much the original work as is absolutely necessary to make your point. In the case cited above in which a postage stamp based on a photo of a statue was deemed copyright infringement, one of the problems was that most of the sculpture was shown in the photo.
    • Make an effort to find the right copyright holder for the work you want to cite. Stanford University Library has a wonderful collection of tools that can help you identify copyright holders and bone up on the process of securing or granting permissions.
    • Use other online tools to identify content that has already been approved for reuse. For example, Wikimedia Commons has a large collection of images, movies and sounds that are available for reuse. Be sure to read the copyright information carefully, because some restrictions may apply. You can also use the Advanced Search features in Google search to identify content that is labeled for re-use. For high-quality news photos and editorial art, check out Shutterstock.
    • Be sure to protect yourself. Photo Attorney has advice on what to do if you find that someone has been infringing on your content.

    Required reading: Electronic Frontiers Foundation Fair Use Guide for User-Generated Video Content

    Kim Pearson
    BlogHer Contributing Editor|KimPearson.net|