Copyright and fair use


Newspaper nabs website’s article, claims most of it is ‘public domain’


The Newnan (Georgia) Times-Herald reproduced an article Dan Whisenhunt wrote for the Atlanta-area news site Decaturish, which he also edits. After Whisenhunt complained, the Times-Herald removed his article.

Whisenhunt also noticed the paper had offered his article, which the Times-Herald ran with his byline, for sale in the archive, and sent an invoice for $1,000. “I do not think your staff would publish content from the New York Times or the Washington Post on your website without a prior content sharing agreement,” Whisenhunt wrote.

Times-Herald General Manager John Winters replied, saying “Most authors, including newspapers, seek to have as extensive circulation of their articles as possible so long as appropriate attribution is provided,” and that since it only got 30 pageviews on the Times-Herald’s site, “any damage to viewership on your site, as a result of our posting the article, would be miniscule.” In addition, he contended:

Also, any factual material in the article you posted is not covered by the copyright laws. All facts, even comments by persons quoted in an article, are in the public domain.

Finally, you did not provide us with any documentation that supports any copyright registration or copyright protection you might have obtained for the article in question. Before we can consider doing anything further in regard to your complaint, please let us have copies of documentation that support any copyright registration or protections you might have obtained for the article in question.

Winters is on the board of the Georgia Press Association. GPA President Eric Denty told Whisenhunt that “Since this appears to be a dispute about which you and The Newnan Times Herald have different views, I do not expect the Georgia Press Association to become involved in it.” Read more


News Genius editor explains annotating Newsweek’s entire Bitcoin article

As a startup devoted to reprinting and annotating lyrics, Rap Genius has an expansive view of fair use baked into its very being. Its News Genius project is no less aggressive when it comes to copyright: It has published an annotation of an entire Newsweek article that claims to identify Bitcoin founder Satoshi Nakamoto.

Reached by phone, News Genius Executive Editor Liz Fosslien said using someone else’s article is somewhat unusual for News Genius, which prefers to annotate what she calls “primary source” documents, like Martin Luther King’s “I Have a Dream” speech or U.S. Sen. Dianne Feinstein’s speech accusing the CIA of intruding on congressional computers. (It has, though, reprinted a New York Times op-ed and part of a Rolling Stone article.)

The Newsweek article “was an interesting case where they wanted to use and expose what they thought was incorrect reporting,” Fosslien said. The “they” in this equation is News Genius’ community, who wield great power as they build influence within the site.

An editor on News Genius is usually an unpaid contributor “who has proven they’re making intelligent, eloquent, readable annotations,” Fosslien said. The next step up is moderator, and some lucky folks are given “verified accounts” — “professors,” Fosslien said, as well as experts like New York Times tech columnist Farhad Manjoo and Rap Genius investor Marc Andreessen.

In fact, Andreessen was quite involved in annotating the Newsweek article. “Is there anyone left on planet Earth who does not screen their phone calls? What is this, 1962?” Andreessen writes about one line in the Newsweek story. “Virtually everyone trained in any aspect of finance in the last 50 years has been taught to work in reverse Polish notation,” he shoots back at another sentence. Read more


Who owns Ellen DeGeneres’ Oscar selfie?

When Ellen DeGeneres granted the Associated Press a license to use the now famous selfie from the Oscars, a debate erupted in the Twitter community. Why did AP need a license for an image that had been retweeted a record-setting 3 million times?

The reason is the legal ownership of a tweeted photo isn’t cut and dried.

Who owns the copyright to this image?

Actually, Bradley Cooper has a strong case to claim he’s the copyright holder. Typically, the photographer owns the copyright to the image. However, DeGeneres could argue that since she uploaded the image to Twitter, she is the copyright owner. It would be interesting to see what would happen in a hypothetical Cooper v. DeGeneres case.

Who owns the copyright to social media content?

It depends on the social networks — specifically the network’s Terms of Service, which all users must agree to when they sign up to use the site.

Twitter’s Terms of Service clearly state that Twitter users hold the copyright to the content they create:

“You retain your rights to any Content you submit, post or display on or through the Services.”

Twitter users authorize Twitter (and its authorized partners) to use the content they create within the Twitter platform which extends to content that is shared via Twitter’s APIs. This is not to say that you grant Twitter a broad usage license for your content. The TOS provides for specific parameters and reinforces that users own their own content, stating:

“But what’s yours is yours – you own your Content (and your photos are part of that Content).”

Do news organizations need permission to use social media content?

According to last year’s case Agence France-Presse v. Morel, the answer is yes. Photographer Daniel Morel captured some of the first images of the 2010 Haiti earthquake and posted the images to TwitPic. A Twitter user reposted the images as his own and these images ended up on the front pages of publications all over the world. A federal judge awarded the photographer $1.22 million dollars for copyright violation.

The rule we learned from this case is that when you take social media content out of its native platform, you should ask the content creator for permission.

But it was public!

From AFP v. Morel, we also learned that a photographer does not give up his or her copyright to an image by posting it publicly on social media.

Despite the fact that the selfie is the most retweeted image in the history of Twitter, DeGeneres, as the content creator, still likely holds the copyright to image. I say likely because Cooper, as the actual photographer, could argue he is entitled to the copyright to the image since he was the original content creator.

What about the phone she used?

Some debated whether the phone on which she (or rather Bradley Cooper) captured the record-setting selfie was a Samsung or an iPhone. Apparently while DeGeneres toted the sponsored Samsung on stage, she used her iPhone backstage and reportedly lost her iPhone, with the selfie on it.

If she would have captured the image with the Samsung, which could have been the case since Samsung was promoting selfies, she may have had an agreement with Samsung about who held the copyright to the images.

However, without an agreement, the phone she used likely would have little effect on the copyright since the copyright belongs to the original creator.

What could happen if I use content I find online?

If you share the content within its original platform (e.g. retweet an image within Twitter), then you are within the bounds of use. Twitter provides tools that let you embed tweets on your site, which also is legal. It gets a little more dicey when you take content out of its natural environment (e.g. taking a screen grab or downloading an image you find on Twitter to use on your website).

Obviously, you can try to use fair use as a defense if the original creator were to sue you for copyright. However, if fair use is not a viable defense, the repercussions could be severe. Willful copyright infringement can result in damages ranging from $30,000 to $150,000 per infringement. Imagine what the damages would be if an image was illegally used.

Now that everyone is a publisher, we all have a responsibility to understand the basics of copyright. And given the proliferation of social media sites, and their frequently changing TOS, we should all be aware of the ground rules for the sites we use when we click that little box.

Related training: Social media and the law Read more


In Pennsylvania and Alaska, a publisher takes infringement to another level

Near the end of last year, a small publishing company made a big bet: it purchased a a group of 19 regional papers servicing remote areas of Alaska. The purchase included a printing plant, but the plan at Allen Total Media was to transition to a digital-only company as a way to service remote villages near King Salmon.

“We will be working closely [with] local news providers to consolidate news from as many as 50 communities to facilitate ease of access, and to lower advertiser costs to reach larger numbers of people,” read the Allen Total Media announcement on Facebook. (The page is now unavailable.)

“Consolidate” was an interesting word choice.

The man behind Allen Total Media is A William “Bill” Allen, a would-be media mogul who has attracted scorn and ridicule from publishers in Pennsylvania for helping himself to other people’s reporting and and “consolidating” it under seemingly fake bylines on his websites.

Along with his Alaska gambit, Allen operates a website out of Greenville, Pa.: the Mercer County Free Press. He claims it’s the result of a consolidation of five regional papers into one offering.

It’s actually the latest Web address he calls home for his online operation, which inevitably features the same content mix: reprints of press releases from sources (see here/here), news stories lifted in whole from other local media (see here/here), news stories lifted verbatim from major wire services (see here/here), shorter items that appear to be rewritten from elsewhere, with typos added (See: “A Boli [sic] Alert Has Been Issued For Brookfield This Afternoon”), and the occasional joke/meme that makes its way around the Web.

Often, the lifted articles are given new bylines to suggest a staffer wrote them (giving it an added element of plagiarism), or carry the dubious credit “Shared Content.”

Even the name Allen Total Media is unoriginal: Trib Total Media is a major publisher in Pennsylvania.

Screenshot of the Mercer County Free Press, featuring a supposedly fired intern’s byline and a headline typo

Allen’s  efforts came to my attention when Kathy English, public editor of the Toronto Star, emailed me this week to ask if I knew anything about Allen’s operation. He’d helped himself to a Star story and published it on his Pennsylvania website,

She reached out to Allen — and he promptly blamed an intern. English also tweeted about it at the time, and today published a column about Allen’s operation.

“While I own the newspaper, I do not materially run it on a day to day basis, I spoke to our editor, and instructed him to issue a written warning to the intern, with no second warning,” Allen wrote English in an email. “Apparently they do not teach copy right law in his curriculum.”

“Copy right” law doesn’t appear to take up much of Allen Total Media’s time, either.

19 papers or 5?

Allen enraged one Pennsylvania media company enough that it went public with its discontent. The Thomas Organization, which publishes the Mercer Weekender and other papers in northwestern Pennsylvania, issued a press release in November:

Over the past two weeks it has come to our attention that content from our staff has been plagiarized and falsely published on the website as their own content. I had a conversation with the Administrator of this website. He was abrasive and unwilling to respect the boundaries of intellectual property. While my staff and I strongly believe in providing free local news to the masses, I disagree with this enterprise’s complete lack of ethics and integrity.As demonstrated by every article posted on his website today, the Administrator of this website has committed a felony by printing false news, stolen articles, and stolen pictures.  Instead of giving credit where it is due, the gentleman continues to publish the content as his own.  By my count, he is violating the rights of more than ten television stations, six newspapers, and a dozen news websites.

Allen and I spoke by phone and he also sent me a voluminous email about his company’s efforts in Alaska. One thing he sought to correct in the email was his initial claim that the Alaska operation included 19 local papers:

We actually only publish 5 weeklies for local towns in the area, but have 19 communities we do printing work for as part of our existing contracts, I wanted to clarify for you on this issue, when this was written we were under the impression that the 19 communities we did work for were newspapers, however, 5 are news products, other items look more like news letters, and or printed items that get auto addressed then mailed via the post offices new direct mail to all residents in a zip code.

When we got on the phone, he was unable to name the five “news products.”

“You know, I don’t know what they are, I just know that we print for like five different people,” he told me.

He further backtracked, saying that his acquisition really only involves the printing facility and the name, Alaska Daily News. What’s the name of the printing company?

“It doesn’t, it’s just Allen Total Media — it’s not, like, open to the public,” he said. “It’s just a person who had printing presses and that kind of thing. I’m not even sure when they started that business that they even paid taxes on it, to be honest with you.”

Allen told me he bought it from “a couple of guys who are, I dunno, American Indians or something.”

In fact, there are no papers, nor is there a printing plant, according to a public media journalist in the area, and a publisher of the main paper for the region.

“I recently heard some complaints about this organization related to them using content produced by the Alaska Public Radio Network,” emailed Mike Mason, who works at KDLG, the public radio station operating in the same region. “Before that I had never heard of the organization nor ever seen the website. I’ve never seen any papers out of the King Salmon area. The only paper in the area is the Bristol Bay Times and it’s not published locally.”

At the Bristol Bay Times, president and publisher Jason Evans replied by email to say, “There is not a printing press where they claim as far as I know and we in the industry don’t know anything about them.”

Screenshot of Allen’s Alaska Daily News.

No papers, no plant, no reporters, it seems. Just Bill Allen, what appear to be fake bylines, other people’s reporting, and what he calls a “disruptive” business model.

A ‘disruptive’ model

“News is not owned by any particular individual just because they originate the story,” he said.

I explained I’d seen a raft of wire and local media stories on his site, word-for-word with no attribution. I could send examples.

“I don’t really give a shit what you send me,” he said, and kept talking.

Eventually he began to soften and even admit mistakes.

“Those articles are not word for word,” he initially said, but continued, “There may have been some originally but we’ve changed that.”

That was a theme in our discussion: one statement followed by something baldly contradictory.

“We have a good thing going here,” he said. “I don’t have any desire to screw around with lawyers.”

And then: “… so, if they take me to court, I can keep ‘em busy for a long time, just wallpapering ‘em with crap and motions and whatever and they’re going to spend $100,000 on a lawyer, or $50,000 on a lawyer when the total of this company that I own doesn’t generate crap for revenue at this point.”

But there was seemingly some good news: Allen told me that in part due to the reaction from the Star he in the past two weeks deleted roughly 600 articles from his site(s) that came from elsewhere; he added widgets to the Pennsylvania site that offer the kind of world and national news coverage he used to offer by cutting and pasting.

Allen also very recently started adding in links back to the original source when he takes content form other sites. (Many of these articles are still word-for-word and may be too long to be covered by fair use.)

That’s why he now believes there’s no reason for any lawyers to get involved — though of course he’s happy to inundate them with “crap” if they do. (“I used to be a bill collector,” he said, I assume as a way to indicate he knows how to drive people crazy.)

Allen told me that he has one staff writer in Pennsylvania, Talia Winner. Her byline is on a number of articles on the site.

I told him I couldn’t find anyone by that name in the area. I asked him directly if she really exists and after a brief pause he said, “Yes, she exists…. I dunno if she doesn’t list her name because someone might call her on the phone and yell at her,” adding that it often happens to him.

Allen had told English he has a male editor who runs the Pennsylvania paper on a daily basis. But that person never came up when I asked Allen how many people he has on staff, or at any other time during our discussion.

AP and others investigating

It didn’t take long for English and me to turn up evidence of Allen’s serial infringement, or to find publishers that know of Allen and his unique perspective on consolidation and copyright.

The Associated Press confirmed to me that Allen’s company is not a client, even though he often features AP copy published verbatim under varying bylines. Allen told me and English he has many interns who work for free, many of whom come from Craigslist and a local college. Which college? He wouldn’t say.

It’s entirely plausible that interns are working with him, but neither English nor I could turn up evidence to back up his assertion that others are involved in the content operation — and that they’re the ones to blame for the manifold infringement.

Along with finding AP copy on his Pennsylvania site, I quickly turned up a Reuters article with the same byline that graced stolen AP and Toronto Star stories: Mike Hill. This is the intern Allen said he fired after English pointed out the theft of the Star article.

Yet, “Hill” wrote and published another story this week after Allen supposedly fired him. (The original version of that article can be found on an Ohio TV station’s website.)

“In a telephone interview this week, [Allen] again blamed the fired intern ‘Mike Hill’ for plagiarizing the Star’s work,” English writes. “He told me he could not recall details about this intern’s background or provide a phone number for him …..”

It seems Allen can’t even be bothered to rotate his almost certainly fake bylines after being busted.

(He told me he’d given Hill something of a second chance, by letting him write things but only publishing them after Allen could look them over. Again, what happened to the site editor he’d told English about?)

At the Mercer Weekender, a publication in Allen’s area, a reporter has been tracking the ongoing thievery in a Word document that is currently four pages long. He shared it with English. Over at the Sharon Herald, a daily, they provided English with a file of clippings about Allen’s previous websites and businesses.

“There are people like at the Sharon Herald — these guys have hated me for 10 years,” Allen told me.

The word has apparently been out on Allen for a while now in the local media community.

Four area news executives told me Allen’s websites have published their content without permission,” English wrote in her Star column. “… Both The Associated Press and the Pittsburgh Post-Gazette are looking further into Allen’s operation.”

Allen is by no means the first person to throw up websites, grab whatever content he can find, and try to earn some money with display ads and affiliate links. He laid out the monetization strategy for me in one of his emails.

“The idea is not to be a news publisher, but rather to attract high amounts of traffic to the site, where they will see affiliate advertising which we earn a percentage of the sale when a reader clicks on the site, buys a product, has it shipped to their location, and we earn a commission,” he wrote. “As opposed to the normal journalistic model where papers try to sell news, content, and ads to sponsor the news.”

Large operations like AP and Reuters can only track down and issue takedown notices to so many of these people. Even local media seem unable to squash the efforts of a committed plagiarist and copyright scofflaw.

The best we can do is apply pressure and raise awareness so he reforms his ways — as he now claims he has.

“I understand how people feel about us and I don’t care that they’re angry because we’re trying to accomplish something here,” he said. “Along the way we’re making a lot of mistakes, probably, doing it the way we’re doing it but we’re trying to rectify that situation.”

It also helps to put the word out so that articles like this one and English’s column rank high in search results when people go looking for the Mercer County Free Press, Alaska Daily News, or Allen Total Media.

Of course, it would be easy for Allen to replace those names with new ones, and launch new websites promising readers his current tag line: “Always Free To Read, No Limit On Stories, No Subscription Charge’s” [sic]. Read more


Novel legal theories mingle in BuzzFeed photo suit


Idaho photographer Kai Eiselein is suing BuzzFeed in U.S. District Court, claiming the site should pay not only for infringing his copyright when it ran his image but also for all the sites that subsequently posted it.

“Since BuzzFeed was the original poster of this set of images and provided them for distribution; the defendant is unequivocally responsible both directly and indirectly for all subsequent infringements,” Eiselein’s complaint reads.

That’s an admirably avant-garde legal theory, an area of scholarship in which BuzzFeed is already a thought leader: BuzzFeed CEO Jonah Peretti has argued the site’s lists constitute a transformative use of others’ photos, and thus fall under fair use. Jeff John Roberts writes that it’s unlikely Eiselein’s “contributory infringement” can “succeed on a legal basis — if he does, the case would throw a large chill over the sharing culture that has become a fixture of the social web.” Read more

copyright symbol background

New fair use principles show how copyright can be journalism’s friend

Fair use is an area of copyright law that’s often misunderstood — and feared.

Some publishers think they have limitless rights to use any image they find on Google or social media as they wish. (They don’t.) Another common misconception is the oft-cited yet non-existent “30-second rule” — the idea that you can use up to 30 seconds of audio or video in your work without infringing on an original publisher’s copyright.

Such misconceptions about fair use are all too common — and many journalists fear delving into fair use’s complexities, just wanting to know enough to keep from getting sued.

Today, American University Center of Social Media is releasing a new set of tools that seek to help demystify fair use for journalists — and to help publishers see how this doctrine actually can help online reporting instead of hampering it.

“Legal hurdles can be found everywhere in the entire explosion of new media that journalists will have to live in and explore. And they are not be able to do that if they don’t understand fair use,” said Pat Aufderheide, a professor at American University’s School of Communication, who founded and directs the Center for Social Media and was one of the tools’ creators.

Aufderheide debuted the center’s fair-use principles during her talk, “Making Copyright Your Friend: Journalism and Fair Use,” which kicked off Poynter’s third annual TEDxPoynterInstitute this morning. You can watch a live stream or participate in a live blog of the event here.

Competing effects

Copyright has two sometimes competing effects on publishers.

Publishers see it as a tool to preserve the value of the work they create by preventing other from violating their rights. Yet at the same time, publishers want to use the work of others in the reporting process, and journalists share and use the work of others frequently, both on social media and in their own publications.

Aufderheide referred to this tension as “a balanced set of rights” that the center’s fair-use doctrine helps navigate in a way that “preserves the value of the original work while encouraging the creation of new work.”

Uncertainty about how copyright applies in the digital space can leave some publishers to fear the risks of republishing work created by others, or to decide not to publish their work at all in order to avoid possible copyright infringement.

Aufderheide hopes the center’s principles will give such publishers a road map for answering questions about when it’s appropriate to use music, video or photos created by others in news publications, providing a “zone of greatest comfort” for acceptable fair-use practices.

Seven situations

The principles explore how to apply fair use in seven common situations that journalists perceive to have potential copyright implications. (For more, see the full version here.)

Situation 1: Incorporation of copyrighted material captured incidentally and fortuitously in the process of recording and disseminating news.
Situation 2: Use of copyrighted material as proof or substantiation in news reporting or analysis.
Situation 3: When copyrighted material is used in cultural reporting and criticism.
Situation 4: When copyrighted material is used as illustration in news reporting or analysis.
Situation 5: When copyrighted material is used as historical reference in news reporting or analysis.
Situation 6: Using copyrighted material for the specific purpose of starting or expanding a public discussion of news.
Situation 7: Quoting from copyrighted material to add value and knowledge to evolving news.

In researching the project, Aufderheide interviewed a demographically and geographically diverse selection of 80 journalists to identify common situations that challenge them in navigating fair use.

Aufderheide and her project co-leader Peter Jaszi then met with journalists in a series of small groups to further define limitations to practical applications of fair use in each context. (Disclosure: I participated in one of these small groups last year.)

Building on their research, Aufderheide and Jaszi have published a book, Reclaiming Fair Use and a scholarly paper, “Copyright, Free Speech, and the Public’s Right to Know: How Journalists Think about Fair Use.” These principles add to the center’s expanding catalog of principles and best practices for fair use in other disciplines, including documentaries, library science, poetry, dance archiving and open courseware. The release of this document also inspired a self-directed course on News University which previews today (LINK).

Building confidence

Beyond helping journalists navigate fair use, Aufderheide said the center’s principles could be useful in confronting legal challenges to journalists’ work because they demonstrate accepted practices in the industry.

“When someone adheres to the practices in the principles, they have a clear justification that this is acceptable behavior,” she said.

Even beyond the legal context, Aufderheide said the principles can give editors confidence about when and how they can use copyrighted material in audio, video and social media.

The goal, she said, is that journalists using appropriate amounts of such material won’t “feel they need to get clearance or jump through additional hoops before publishing.”

Related: News University course on copyright and fair use for journalists Read more


NYT: Scroll Kit developer ‘is bragging’ about copyright infringement

Cody Brown | TechCrunch

Cody Brown received a takedown request from The New York Times’ legal department after he posted a video showing how to replicate the “Snow Fall” experience using his tool Scroll Kit.

After he answered that request, Deborah Beshaw-Farrell of the legal department asked him to remove some crowing language from Scroll Kit’s site:

It took The New York Times hundreds of hours to hand code “Snow Fall.” …we made a replica in an hour.

Read more

Publications can no longer send photographers to Beyoncé shows

Fstoppers | Music Photographers

Beyoncé won’t allow publications to send their own photographers to concerts on her Mrs. Carter tour. Publications wishing to illustrate coverage of the tour will have to download photos from an approved site, Noam Galai reports.

Beyoncé’s publicist Yvette Noel-Schure emailed BuzzFeed after it ran photos of the singer at the Super Bowl halftime show that Noel-Schure called “unflattering.” BuzzFeed turned the email and photos into a piece called “The ‘Unflattering’ Photos Beyoncé’s Publicist Doesn’t Want You To See.”

The no-photographers edict represents an escalation in the struggle between music artists, photographers and the publications that employ the latter. Read more


U.K. court: Meltwater doesn’t violate copyright

The Guardian | Politico

The Supreme Court of the United Kingdom ruled Wednesday that the news aggregator Meltwater does not violate copyright laws by storing a cached page on app users’ mobile devices and laptops. The court sent the case to the European Court of Justice to ensure that subsequent rulings are consistent across European jurisdictions. Read more


Shepard Fairey gets probation for actions in AP photo case

Associated Press
A New York judge has sentenced artist Shepard Fairey to two years of probation and 300 hours of community service for lying and destroying evidence relevant to the Associated Press’ complaint that he’d used one of its images of Barack Obama as the basis for his iconic “HOPE” poster. Fairey admitted in 2009 he’d “submitted false images and deleted others in the legal proceedings.” He pleaded guilty to criminal contempt in February.

The government had argued Fairey should get jail time; Fairey’s attorneys argued his offenses were misdemeanors. The AP sounds glad to have this all over and done with:

“After spending a great amount of time, energy and legal effort, all of us at The Associated Press are glad this matter is finally behind us,” AP President and CEO Gary Pruitt said in a statement. “We hope this case will serve as a clear reminder to all of the importance of fair compensation for those who gather and produce original news content.”

Read more

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