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In Blogging, What is Fair Use of a News Article?

Monday, May 30th, 2011

When you blog, how much of a news article can you reproduce without becoming a copyright infringer? And, if you reproduce too much, what legal consequences might you face?

Let’s take the second question first. You might have the view that, if you reproduce too much, you’ll just take it down if someone complains.

That might not work. Under copyright law, sometimes the owner of a copyrighted work can recover up to $150,000 for each article copied. An aggressive copyright owner might not be willing to let you off the hook without a payment.

On top of that, many newspapers are in financial trouble. Their ad revenues have declined substantially in recent years.

Because their product largely is news reporting, newspapers may be tempted to sue bloggers who repost too much of their news stories, either to gain an additional revenue stream from legal settlements or to try to dissuade bloggers from taking their stories.

One media company already is trying to cash in. Stephens Media, which publishes the Las Vegas Review-Journal, entered into a litigation venture (through an affiliate) called “Righthaven.” Righthaven sues bloggers who, in its view, borrow too much content.

It’s possible Righthaven will be unprofitable. Righthaven recently suffered some legal setbacks in court. I am not aware of other media companies making a business of suing bloggers. Yet, this could change because newspapers need money.

Borrowing too much from news stories can occur in two places on a blog.

The blogger himself might post too much. Many bloggers reproduce large sections of news stories out of laziness – because they don’t take the time to paraphrase what the article said.

Also, if you leave comments open on your blog, commenters might post too much.

What legally is at issue is “fair use.” Federal copyright law sometimes permits you to reproduce part or, in rare cases, all of someone’s copyright property. For example, some copying usually is permitted for criticism or commentary of what you reproduce.

Even if your blogging purpose for reproducing all or part of a news article is criticism or commentary, whether your use of a news article is fair use depends upon a multifactor analysis.

This analysis is subjective, so some situations are tough calls. Nevertheless, here are some tips:

Plagiarism and copyright infringement are different things. Even if you give credit to the source, either you need permission to reproduce or you need to be in the fair-use zone.

It’s good netiquette to link to the article from which you borrow and to name your source. Giving credit isn’t part of the fair-use analysis, but doing so may make your behavior look benevolent, which may help.

Linking to a news story in a blog post without reproducing any of the article in the post is not a copyright problem.

Getting permission from the newspaper to reproduce its article avoids any copyright infringement problem. Getting permission may be difficult, however.

When possible, paraphrase the news article instead of block quoting from it. Generally, copyright does not protect facts or ideas, but only the expression of them. Thus, if you can relate the same facts or ideas by paraphrasing, usually you have not engaged in copyright infringement.

If you must block quote from the news article, quote only so much as is necessary to make your point.

Try to make a transformative use of what ever you block quote. In other words, don’t block quote just to relate the information in that quote, but do so for the purpose of criticism or commentary, or if you must show the exact wording of an article to make your point.

If you will be leaving the ability to comment open on your blog, you should register your copyright-notices agent with the U.S. Copyright Office. You also will need to post information on your blog about how to contact this agent with any complaints about copyright infringement. You can learn more about this at www.copyright.gov/onlinesp.

Happy blogging!

By John B. Farmer
Published in the Richmond Times-Dispatch
© 2011 Leading-Edge Law Group, PLC. All rights reserved.