Video Links and Copyright Concerns

Question:

When using video in connection with blogs, is providing a link to video that may be protected by copyright permissible, or is that unclear, and are there any parameters or useful rules of thumb for bloggers and citizen journalists?

Response By → Levine Sullivan Koch & Schulz:

(Posted on January 10, 2009.)

Copyright protection applies to all manner of expression once that expression is captured in a tangible form from which others (with their own senses or with the aid of a device) can perceive the work.  Thus, in addition to written, pictorial, musical or artistic works, among others, copyright applies to videos or other audiovisual works.  Moreover, copyright applies not only to creative works, but to factual works such as news clips and video of actual events.  Thus, anytime a blogger or citizen journalist wishes to use video that was not created by them, they should consider whether, under the principles of copyright law, the use is permissible.

Generally, copyright law gives copyright owners the exclusive right to reproduce, distribute, publicly perform, publicly display or prepare derivatives of their work. In most circumstances, anyone who exercises any of these rights, without the permission of the copyright owner, is infringing the copyright.  For example, if you have created a short video depicting an event and, without your permission, someone copies the video, uploads it to her own Web site, and lets visitors download copies, that person is infringing your copyright by engaging in a number of the exclusive rights (reproduction, distribution, possibly public performance and display).  However, the copyright law prohibition of unauthorized use is not absolute.  Under certain circumstances, the doctrine of “fair use” requires that particular publicly beneficial uses be allowed, notwithstanding the lack of permission from (and sometimes over the objection of) the copyright owner.  In addition, as the Internet continues to evolve, and courts become more familiar with its workings, some uses—including certain linking—that may resemble copyright infringement have been judged not to be infringing based on the technical aspect of how a given video is provided to users.

Technical issues and infringement

Recent decisions by the influential Courts of Appeals for the Second Circuit and Ninth Circuit show that courts are now taking a much more technical approach to assessing issues of copyright infringement.  Thus, to determine whether content is being infringed by being publicly displayed, publicly performed or distributed via a given Web site, courts will consider on whose server the content actually resides and whether the content is presented to users by being served directly to them or simply presented through inline links to another site.  These courts have held that, in order to infringe by performance, display or distribution, the putative infringer must actually possess a copy of the work. 

When the content actually is on a third party’s Web site and resides on that site’s servers, and you merely employ an inline link such that the content appears in a frame on your site, the copy is served from the third party’s site to users, and technically never resides on your site or servers.  Under the holding of some recent cases, you would not be committing infringement.  Likewise, simply linking to content residing elsewhere generally should not amount to direct infringement on your part.

Note that, while linking to content residing elsewhere on the Internet typically does not amount to infringement, a blogger can become liable for infringing acts committed by others if the blogger is aware that content on another site is in fact infringing but nevertheless provides a link to and encourages users to access the infringing content.  In that circumstance, although the blogger will not have engaged in any directly infringing act, he or she could be held liable for contributory infringement based on his or her knowing participation in the infringing conduct of others.

In contrast to links, where an unauthorized copy of a video resides on your site or servers, you likely would be deemed to be an infringer unless your use of the video qualifies as a fair use.  Thus, if you were to make a copy of an over-the-air broadcast or download a video from someone else’s site and upload it to your own site, you would be reproducing copyrighted content.  By providing that content to the visitors to your site, you also would be distributing (for example if you made the content available for downloading), or publicly performing or publicly displaying (for example if you streamed the content to your users) and thereby committing additional acts of infringement.

Fair Use

The doctrine of “fair use” may permit some uses of works that would otherwise constitute infringement.  Fair use is a statutory provision that balances a copyright owner’s exclusive right to control use of his or her work against the public’s need to have that work available for publicly beneficial purposes.  Courts often describe the doctrine of fair use as the most difficult concept to apply in all of copyright law.  Under Section 107 of the Copyright Act, use of someone else’s work for such purposes as commentary, criticism, news reporting, research and scholarly reports, among other things, may be considered to be a fair use, and thus non-infringing, based on a balancing of four factors: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect of the use upon the copyright owner’s potential market.  Despite the presence of these statutory factors, there are no hard and fast rules that govern the application of fair use; each use must be addressed on its facts. 

• Uses are more likely to be fair when they “transform” the work that is being used.  That is, where the use builds upon the original, for example providing a critique of the original, or adds content that builds on the message of the original.
   
• Uses are less likely to be fair when they simply present the original for the same purpose as it originally was used.  For example, if a video of a live event appeared on a news program, and you want to report on the same news event but do not have your own video, showing a copy of the original news program’s video is not likely to be fair.
   
• Uses that “scoop” the copyright owner’s first use of the work are less likely to be fair.  For example, if you rush to get a video distributed via your Web site before the copyright owner broadcasts it, this fact will weigh against fair use.
   
• Taking more than is appropriate for a proper purpose is less likely to be fair.  Thus, if you are making a point for which 10 seconds of a three minute video might be crucial, but you use the entire video, this fact will weigh against fair use.
   
• Uses that interfere with the market for the original work tend not to be fair.  If the copyright owner typically offers licenses to bloggers and others to make the type of use you want to make, using the content without obtaining that license tends not to be fair.

Permission from the copyright owner is the safest route if you wish to upload or distribute another’s video content.  If you don’t have that permission, because of the complexity and unsettled nature of this area of the law, it may be helpful to consult with a qualified attorney before uploading or otherwise reproducing or distributing another’s video content.

From Geanne:  Thank you Levine Sullivan Koch & Schulz for this thoughtful response.