A little bit about Daliah — Daliah is a member of the Illinois Bar and both the General Bar and Trial Bar of the U.S. District Court for the Northern District of Illinois. Prior to starting her own firm, she held positions at Brinks Hofer Gilson and Lione, a large intellectual property law firm; Lawyers for the Creative Arts, a non-profit organization assisting artists; and the Anti-Defamation League, a civil rights organization.
Daliah is on the faculty of Practicing Law Institute, and has been selected by Harvard Law School’s Berkman Center for Internet & Society to be a member of Harvard’s new Online Media Legal Network (OMLN). She is also an adjunct professor at Loyola University Chicago School of Law, teaching a Sports and Entertainment law course.
For The Writer’s Place, Daliah has provided a wealth of valuable information about the legal side of writing, covering both fiction and non-fiction, for print and online publications, as well as some general information that we all should know (but probably didn’t)!
As a matter of fact, there is so much that I have broken it into two interviews: today’s post and, on September 10th, Part 2. So with no further ado, here’s Daliah!
WP: Let’s start with the basics: what are good thumbnail definitions of plagiarism and copyright infringement.
Plagiarism is a non-legal term that speaks more to the ethical dilemmas rather than the legal consequences that arise out of misappropriating someone else’s work as one’s own. Copyright infringement is the use or copying of any work without permission from the copyright owner.
WP: What are some common (and potentially legally expensive) errors writers make on their blogs or sites regarding copyright infringement?
A common error that bloggers or writers make is assuming that an image found through a Google image search is OK to use, or that an image found on a news site can be used as long as the news site is credited. This is not true. Before a writer can use an image or any other copyrighted content, it is best to get express permission from the copyright owner.
Such permission is not necessary only under the following conditions: if the image is in the public domain (these works can be found in the Library of Congress), if a Creative Commons License is attached to the image (this type of license is common among many Flickr users), or if it falls under a fair use exception.
If you are unclear whether the image you are seeking to use falls under the fair use exception or is in the public domain, it is best to refrain from using that material. (More information on fair use later in the interview.)
These same rules also apply to written content. If a bloggers finds a news article that is interesting, she can link to it on her blog, but it will likely be copyright infringement if she pastes the entire article onto her blog. However, it is likely fair use if the blogger quotes a small portion of an article in order to comment and discuss it. Even in that instance a blogger should be cautious because there is no clearly defined rule as to how long a quote can be in order to be considered fair use.
WP: With blogs being so popular, and bloggers eager to have visitors post comments on their blogs, what are some aspects they need to be conscious of?
Bloggers want to be cautious if they allow users to post on their blogs. For instance, if a blogger allows guest posts or allows users to comment or upload content, she should take precautions to limit her liability if a user posts material that infringes on a third party’s copyright.
The Digital Millennium Copyright Act (DMCA) offers a safe harbor provision that immunizes online service providers from infringing material that is posted by users onto their sites.
WP: One question that keeps surfacing is about creating an online portfolio. With so many magazines and websites using WMFH or “all rights” contracts, are writers permitted to post a published (online or in print) copy of an article they wrote for a magazine or web site, even with attribution?
If an individual has created a work under a “work made for hire” agreement, that individual is no longer the owner of the work. As such, posting the entire article without permission from the owner is copyright infringement. Aside from “work made for hire” agreements, a writer may also enter into a contract with an individual or company who wants to use her work. If that contract creates limits to your rights in the work, you need to abide by the terms set forth in the contract.
It is probably best when entering in these types of contracts to reserve your right to display your work, or a portion of it, in your online portfolio.
WP: Which brings up another point: is putting your own work on your own site — for example, a short story in its entirety — considered “publishing” the work?
The Copyright Act defines published as “the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Offering to distribute copies to people or businesses for purposes of further distribution, public performance, or public display constitutes publication.” Under this definition, if a writer posts her work onto her public website, that work is considered published.
However, a literary magazine may have a different definition of what constitutes a published or unpublished work. A literary magazine is not bound by the Copyright Act’s definition. It is best to confirm with the literary magazine whether or not a work that appears in full on an author’s website is considered published or unpublished.
In general, magazines or newspaper want to be the first to make an entire work publicly available. Therefore, it is likely that a magazine may not want to publish a work that has already been fully available to an author’s audience.
WP: What about “fair use” — how can writers or authors determine if the material they want to use (with proper attribution) falls under fair use or if they need to gain permission form the source and/or copyright holder?
The Copyright Act lists the following purposes, under the fair use exception, that do not constitute copyright infringement: criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
Unfortunately, fair use cases are very fact specific and the courts will look to many factors to determine if the copyright infringement falls under one of these exceptions. The four general factors that a court considers are the purpose and character of the use, the nature of the work, the portion of the work used in relation to the whole, and the effect of the use on the market or the value of the work.
Due to the uncertainty of whether a particular use will be considered a fair use by a court, the safest route is to get permission from the owner before you use the copyrighted material.