Tweet in NY Times Ad Ruffles Feathers

The BBC reports that a full page advertisement appearing in The New York Times, which included an actual tweet, raises copyright concerns regarding the reprinting of tweets for such purposes.

The ad was a promotion for the film, Inside Llewyn Davis and the tweet belonged to the New York Times’ very own film critic, A.O. Scott.  Scott, apparently a fan of the Inside Llewyn Davis soundtrack, tweeted, “You all keep fighting about Wolf of Wall St. and Am Hustle. I’m gonna listen to the Llewyn Davis album again.  Fare thee well, my honeys.”  Scott said the firm behind the full-page ad had originally sought his permission to use a portion of the tweet, which he denied stating that it was “a slippery slope and contrary to the ad hoc and informal nature of the medium.”  Regardless, the edited version of the tweet appeared in the ad.

Of interest here is the convergence of copyright, advertising and contract law.  Namely, Scott’s ownership of his tweet, the use of his tweet as an endorsement for a product and Twitter’s apparent prohibition against using tweets in ads without the user’s permission.  With respect to Twitter’s own rules, it states that one must get the user’s permission before, among other things, “creating an advertisement that implies the sponsorship or endorsement on behalf of the user.”

While it does not appear as though Scott will be taking any action other than registering his annoyance with the film promoter’s actions, the incident does serve as a reminder that, when using content found on social media, one must be careful to consider both the intellectual property rights of the creator as well as the terms and conditions of the social media site itself.

You can read A.O. Scott's piece on the episode here.

Failure to Follow DMCA Safe Harbor Requirements Leads to Stormy Seas

Recent cases suggest that Internet Service Providers or “ISPs” need to understand, and act upon, the statutory requirements associated with the safe harbor provisions of the Digital Millennium Copyright Act(“DMCA”).  Recall that the DMCA’s safe harbor provisions protect service providers from copyright liability related to user generated content that might infringe the rights of a third party copyright holder.

In order to qualify for safe harbor protection, the service provider must first adhere to certain requirements including the following:

            (i)         be a “service provider” as that term is defined in the DMCA;

            (ii)        adopt and implement a repeat infringer policy; and

(iii)       not interfere with technical measures copyright owners use to protect their copyrighted works.

Once it is determined that the ISP meets the necessary qualifications for safe harbor protection, the next part of the analysis includes whether the ISP had

(i)         actual knowledge of the infringement at issue (referred to as the “red flag” test);

(ii)        whether the ISP received any direct financial benefit as a result of the infringement; and 

(iii)       whether the ISP acted quickly to disable the infringing material.

In a recent Southern District of New York case, Capitol Records v. Vimeo, the court refused to recognize that, as a matter of law, all content that was the subject of claims brought by Capitol Records and EMI Blackwood Music against Vimeo, a video upload site, fell under the safeguards provided by the DMCA’s safe harbor.  While the court did find that much of the content did fall under the act’s protection, the court also found that a sizeable portion of the content required a fact finder’s assessment in order to properly determine if the statutory requirements were properly followed.

In Vimeo, certain materials had been uploaded by employees of the site itself, which raised the issue of whether the content was user directed or uploaded as a result of the site’s own employees.  In fact, labels identifying the content as having been uploaded by “STAFF” were included on the site to identify the related content.  In addition, raising the “red flag” rule, Vimeo employees had placed certain content in specific sections or categories of the site including on employee only channels and, moreover, employees had commented on some of the content as well.  As a result, the court found that the content associated with these actions presented triable issues of fact.

It should also be noted that this case follows on the heels of a recent U.S. District Court for the Southern District of Florida case, Disney Enterprises, Inc. v. Hotfile Corp. that found no safe harbor protection where a site failed to take action against repeat infringers after receiving proper takedown notices by rights holders.

Harvard Law Professor Sends Message on Copyright in the Digital Age…and it Requires an Answer in 21 Days

Lawrence Lessig , copyright scholar and Harvard Law School professor, sued Liberation Music in federal court last week seeking damages for Liberation’s “knowing and material misrepresentation that’ he ‘infringed Liberation’s copyright interests.”

 

Lessig, who posts many of his “Open” lectures on YouTube, included in one such lecture clips from videos created by amateurs, which all include people dancing to the song, “Lisztomania,” by the French band, Phoenix.  Liberation, who claims the right to license the song, submitted a Digital Millenium Copyright Act (DMCA) takedown notice to YouTube claiming that it was hosting material that infringed Liberation’s copyright in the song.  Recall that pursuant to §512 of the DMCA online service providers are granted a “safe harbor” as long as they meet certain requirements.  These requirements include maintaining a notice and takedown system that allows owners of copyrighted material to submit a “takedown notice” to the provider.  Among other requirements, the party submitting the notice must assert a “good faith belief” that the material’s use on the site is not authorized by either the copyright owner or the law.

In his complaint, Professor Lessig argues that Liberation knows that his use of the song, in association with the clips, is consistent with a fair use affirmative defense and, consequently, does not infringe.  The statutory factors when making a fair use analysis include (i) the purpose and character of the use; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) the effect of the use on the potential market for or value of the copyrighted work.  The complaint goes on to analyze the factors as follows: (i) the purpose and character is non-commercial and highly transformative as it is meant to educate and not entertain or make money, (ii) the nature is creative, which ordinarily leans toward the copyright holder, but in this case Lessig’s use of the song did not compromise “Phoenix’s or the defendant’s rights to control the first appearance of the song, (iii) the amount was minimal, ranging in length from 10 seconds to 47 seconds, and (iv) there was no market harm as the “Open” lecture “is not a market substitute for the song’ and ‘the lecture did not harm any market for the song.”

Per the complaint, Lessig claims to have been injured in the form of financial and personal expenses, harm to his free speech rights under the First Amendment and attorneys’ fees and costs.

An article about the suit in The Boston Globe notes that Daniel Nazer, an attorney with the Electronic Frontier Foundation, who is also listed on the complaint, “said the lawsuit is about more than an academic lecture on YouTube; the plaintiffs want to send a message about how copyright law is used in the digital era.”