Copyright Law 101 for Bloggers

The subject of law does not hit home for many bloggers. Even a lawyer’s blog, like this one, tends to focus on anything but the law (but, one may find, that law is intertwined with virtually everything).

But copyright law is, or should be, of interest to the blogosphere.

In one of my recent postings, I included the poem “Every Riven Thing” by Christian Wiman in its entirety. I did not quote excerpts from the poem because, in my mind, the poet’s beautiful style and flow would only come through if the entire poem was reproduced. Any particular segment would not have served justice to what I was trying to portray. And of course, I cited the poet’s full name as my source.

A good friend of mine pointed out that it would be wise for me to quote an excerpt of the poem and have a link to the actual poem itself, as a precautionary measure to possible copyright infringement. He had a good point, and one that is not unsupported; many writers, when including poetry or other works, do include something saying “with the author’s permission”.

Copyright infringement is not a light affair, so I did my fair share of research, and my personal conclusion at this point is as follows: the law is murky.

The issue of importance is the doctrine of “Fair Use”. Section 107 of the Copyright Law carves out limitations on exclusive rights to copyrighted material, stating that “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Additionally, four factors will be taken into consideration when determining whether the use of a work is a “fair use”: (1) the purpose and character of the use (such as commercial nature); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The case law on the “fair use” doctrine draws no clear lines as to what kind of use is “fair”. According to the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, courts have generally regarded the following uses as “fair”: quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.

In short, when quoting exact passages from works, courts were ok if you’re quoting excerpts or short passages. That said, to my knowledge, there is nothing to definitively state that quoting entire poems for non-commercial purposes (one of the exceptions specifically carved out in the statute itself) is infringement. The blog post that includes the Wiman poem could very well be deemed as a “commentary” or as a “scholarly” piece. There was absolutely no commercial purpose, either in the posting itself or my blog (God knows I don’t make a buck out of this), and my post certainly does not affect the value of Wiman’s work. The only issue that lingers is that I quoted the entire poem, and, according to the statute, courts may consider the portion of the quoted excerpt.

The bottom line is, if you don’t want annoying-as-hell legal trouble (however remote the chances), you’d be wise not to quote entire works. I would argue any day that non-commercial use of a poem for a personal blog is well within the statutory limitation. However, that’s just me; I should probably advise you to cover your ass when you can. If, for whatever reason, your blog provides financial gain (through online advertising, etc.), you should take this more seriously, since a court may say that your blog has a commercial purpose. In that case, you should get the author’s permission to reproduce any work in their entirety.

The law becomes more convoluted when dealing with audio and video material and artwork, and the Internet probably complicates things even more. But starting out with Wiman’s poem is enough to build awareness of this issue.

As for me and Wiman’s poem? I’m sticking to my guts; the poem looks better as a whole, and my post would lose its meaning and value if I quoted only a few lines. Hell, maybe I’ll change my mind if I face a court order.

Sue me.

* This is not intended to be used as legal advice. This is solely the author’s thoughts on the interpretation of certain portions of the Copyright Act.

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