August 8, 2009

How to prevent against online libel and defamation

Bill_of_Rights_Pg1
The Bill of Rights

A brief guide for citizen journalists and bloggers

Target audience: Journalists, bloggers, nonprofits, cause organizations, NGOs, general public.

Guest post by Mitch Ratcliffe
RatcliffeBlog

There is much that bloggers can learn from journalists, who have learned how to cause the most trouble possible without landing in jail over the course of centuries. I highly recommend you pick up a copy of The Associated Press Stylebook and Briefing on Media Law ($13 at Amazon.com, which is the essential text for many journalists.

In addition, here’s a good source for students and other beginners.

If you want to go deep and learn a lot, read this piece from the Massachusetts Bar Association’s Journalists’ Handbook.

It’s worth understanding this stuff even if you don’t want to be a journalist, because anyone can be sued for libel, slander or defamation.

The first thing to understand about all subjects relating to journalists’ privileges is that they are different everywhere. There is no international standard set of laws, though journalistic professional societies have pressed for these kinds of uniform expectations. Most of what I’ll lay out here relates to the United States, where the press enjoy the most liberal protections available. In Canada, for example, there is no presumption that a journalist can protect their source. In much of Europe, the subjects of photographs retain far greater control of pictures through their moral rights (PDF), or “droit moral,” which provides both the photographer and the subject protection from the unauthorized reuse of the image in whole or in part — juxtaposing the image of a person into an advertisement, for instance, which is common in digital media is prohibited without their permission.

Elements of defamation

Defamation, slander and libel are the same thing, essentially, but each is defined based on the way a false statement about a person is conveyed. According to ExpertLaw.com’s entry on Defamation, Libel and Slander Law, the general principle behind all three must include the following elements:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

In the context of defamation law, a statement is “published” when it is made to the third party. That term does not mean that the statement has to be in print.

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June 29, 2009

Socialbrite releases Creative Commons plug-in

Esteban Panzeri

JD LasicaWe’re happy to launch today with the news that our lead developer, Esteban Panzeri (above), is releasing a new WordPress plug-in to the WordPress community. It’s called Creative Commons Reloaded, and it lets individual blogs or group blogs assign Creative Commons licenses on a post-by-post basis.

That’s especially useful at sites like Socialbrite, where some of us (me, Beth, Ken) release our works under a CC Attribution license, while others (Amy, John, Katrin) use a CC Attribution Noncommercial Share-Alike license. Creative Commons lets you fine-tune your copyright, allowing others to reuse it as you specify.

I asked Esteban, a tech guru/analyst at Lenovo in Buenos Aires, why he developed the plug-in on his own time. “I think the old copyright model is outdated,” he said. “It does not fit the digital era. I’m convinced that it strangles creativity and it is bad for business. Creative Commons is a good step in the right direction. With so many excellent blogs out there, I thought it would be a nice way to help all those authors get a simple way to license their work. That and ‘giving back to the community’ that has helped me achieve so much.”

He cited Michael Geist’s recent post pointing to a new Harvard Business Chool working paper that suggests weaker copyright protection has benefited society.

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April 27, 2009

What is off-limits to a documentary filmmaker?

Fair use and ‘free use’: As a documentary filmmaker, when must I turn off my camera?

Guest post by Peter Jaszi
Professor of Law, Washington College of Law, American University

The answers to some of filmmakers’ most common clearance questions don’t really lie in the realm of “fair use” at all, but fall under the heading of “free use.” Some examples:

  • Buildings that can be seen from public areas can be filmed for any purpose. Although there has been copyright in architectural works in the United States since 1990, the U.S. Copyright Act includes an exemption for filming. It doesn’t matter whether the building is the subject of the film or an incidental background.
  • Federal government works enjoy no copyright protection whatsoever, whether they are the words of federal government employees or footage taken by camerapeople in civilian or military service. The purpose for which you use the material – as well as the source from which you obtain it – are irrelevant from a copyright perspective.
  • Public domain works (such as 19th century paintings or medieval manuscripts) in museums or private collections are free for use as well, if you have access to a reproduction. Many institutions claim copyright in their own photographs of old objects in their collections. But if you have a different source, you’re free to proceed, without a license from the collection.
  • For most documentary projects, filmmakers don’t have to be concerned about the so-called “right of publicity” that exists under some state laws. The cases (and sometimes the statutes themselves) make it clear that the right bars only the commercial exploitation of celebrities’ “persona,” and First Amendment-protected expressive uses are specifically exempted.
  • In answer to a common (but not intellectual property-related) question, documentarians don’t need photo releases from individuals who are filmed in parks, streets or other public places where they have no expectation of privacy. If you single out an individual for special attention, you may a need a release.
Peter Jaszi is professor of law and faculty director of the Glushko-Samuelson Intellectual Property Clinic at Washington College of Law, American University. This article originally appeared at American University’s Center for Social Media and is published under a Creative Commons license.. It is available in PDF form.
Related

Filmmakers’ best practices in fair use

The rules around capturing public performances

Guide to shooting photos in public

Your rights as a photographer

April 10, 2009

Guide to shooting photos in public

Shutterbugs have wide latitude to photograph strangers — but consider propriety as well as the law

Target audience: Cause organizations, nonprofits, NGOs, journalists, general public. This is part of our ongoing series designed to help nonprofits and other organizations learn how to use and create media.

JD LasicaWhen is it all right to take photos of strangers in public?

Society has wrestled with the question of street photography ever since the invention of the camera. In the United States, the general rule is that anything in plain view from a public area can be legally photographed, including buildings and facilities, people, signs, artwork and images.

In a recent case, photographer Philip-Lorca diCorcia set up strobe rigs on a New York City street corner and photographed people walking down the street. He won a lawsuit brought by an Orthodox Jew who objected to deCorcia’s publishing and selling in an art exhibition a photograph taken of him without his permission. (See Wikipedia for a more thorough discussion.)

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April 5, 2009

Your rights as a photographer

photographers-right

The photographer’s right: A downloadable flyer explaining your rights when confronted for photography

Target audience: Cause organizations, nonprofits, NGOs, journalists, general public. This is part of our ongoing series designed to help nonprofits and other organizations learn how to use and create media.

The Photographer’s Right is a one-page printout on what the rights of photographers are when shooting in public places. It is loosely based on the Bust Card and the Know Your Rights pamphlet that was once available on the ACLU website. It may be downloaded and printed out using Adobe Acrobat Reader.

You may make copies and carry them your wallet, pocket, or camera bag to give you quick access to your rights and obligations concerning confrontations over photography. You may distribute the guide to others, provided that such distribution is not done for commercial gain and credit is given to the author, Bert Krages 2nd, who is an attorney.

PDF

Download PDF

A stand for photographers’ rights

The right to take photographs in the United States is being challenged more than ever. People are being stopped, harassed, and even intimidated into handing over their personal property simply because they were taking photographs of subjects that made other people uncomfortable. Recent examples have included photographing industrial plants, bridges, buildings, trains, and bus stations. For the most part, attempts to restrict photography are based on misguided fears about the supposed dangers that unrestricted photography presents to society.

Ironically, unrestricted photography by private citizens has played an integral role in protecting the freedom, security, and well-being of all Americans. Photography in the United States has an established history of contributing to improvements in civil rights, curbing abusive child labor practices, and providing important information to crime investigators. Photography has not contributed to a decline in public safety or economic vitality in the United States. When people think back on the acts of domestic terrorism that have occurred over the last twenty years, none have depended on or even involved photography. Restrictions on photography would not have prevented any of these acts. Furthermore, the increase in people carrying small digital and cell phone cameras has resulted in the prevention of crimes and the apprehension of criminals.

As the flyer states, there are not very many legal restrictions on what can be photographed when in public view. Most attempts at restricting photography are done by lower-level security and law enforcement officials acting way beyond their authority. Note that neither the Patriot Act nor the Homeland Security Act have any provisions that restrict photography. Similarly, some businesses have a history of abusing the rights of photographers under the guise of protecting their trade secrets. These claims are almost always meritless because entities are required to keep trade secrets from public view if they want to protect them.

For more information

U.S. law:
Legal Handbook for Photographers-The Rights and Liabilities of Making Images

Abroad:
UK Photographers Rights
NSW Australia Street Photography Legal Issues

Source: Bert P. Krages website

Please comment on, correct or expand upon this article.

Related

Guide to shooting photos in public

The rules around capturing public performances

What is off-limits to a documentary filmmaker?

April 4, 2009

Fair use in the digital age

How does fair use work in an age of social media?

JD LasicaFair use — the tradition that individuals may make use of copyrighted works for a range of purposes that are legal — is enshrined in Section 107 of the U.S. Copyright Act. Other countries have their own versions of fair use.

Many people mistakenly believe fair use gives them broad, indiscriminate leeway to appropriate copyright holders’ works. Fair use is somewhat limited in scope. But Lawrence Lessig, the author and Harvard law professor, makes the important point that free use covers much more terrain than fair use. So does Peter Jaszi, another noted academic. Fair use is limited to carveouts, or exceptions granted to certain classes of individuals, in the Copyright Act. Free use covers longtime traditions like taping television shows on your VCR.

Fenwick-West, a prestigious intellectual property law firm in San Francisco, wrote the following fair use guidelines for Ourmedia.org members. The same guidelines apply to anyone who uploads works to any public website.

Fair use guidelines

The best way you can avoid infringement is by obtaining proper permission from the copyright or trademark owner before using it in your work, even if you only use a small part of his or her material. Simply crediting a copyright or trademark owner whenever you use his or her material is not a substitute for obtaining permission. If you do not obtain permission and you are not sure if your work falls within the fair use guidelines outlined below, consider consulting an attorney or avoid using the material altogether.

Cyberspace law differs by jurisdiction and is developing rapidly. A reasonable fair use policy seeks to reflect U.S. and international intellectual property laws, but copyright is a rapidly evolving arena.

Copyrights

A copyright protects original works of authorship fixed in a tangible medium of expression, such as published and unpublished written, visual, and audio works. Examples of copyrighted material may include music, films, television programs, and photographs. Copyright laws usually do not protect, among other things, ideas, procedures, discoveries, and works in the public domain (i.e., standard calendars).

Be mindful, however, that many things commonly thought to be in the public domain are not, so you need to be very careful to do a little research before assuming that something is in the public domain. For example, just because someone posts something online does not mean that he or she is allowing anyone to use it for any purpose. A copyrighted work does not need to say that it is copyrighted, or have the copyright symbol © on it. The copyright owner has the right to copy or permit others to copy his or her material.

Copyright infringement occurs whenever someone uses rights reserved just for the copyright owner without proper permission from the owner. You could be guilty of infringement if you improperly use another’s copyrighted material, even if that use is unintentional.

If you live outside the United States, be aware of the copyright laws governing your jurisdiction. Many countries have ratified international agreements and are members of organizations that seek to protect copyright owners.

Copyright ‘fair use’

The “fair use” of another’s copyright material means that, depending on your particular situation, you can sometimes use a part of another’s copyrighted material in your own work without permission from the owner. You may fairly use another’s copyrighted material provided that your work essentially transforms the copyrighted material into something original and creative, such as a parody, satire, or political statement.

It is not automatically fair to use another’s copyrighted material for a noncommercial, educational, or private purpose, or to exercise your First Amendment rights. It is usually fair use to use just enough of another’s copyrighted material that is necessary to communicate your ideas.

Examples of actions that may infringe others’ copyrights include the following: attempting to make money from another’s copyrighted material; completely duplicating another’s copyrighted material; creating a new work comprised mostly of another’s copyrighted material; and paraphrasing another’s copyrighted material without permission and attribution.

Trademarks

A trademark is a distinctive sign that identifies particular goods or services as those made or supplied by a person or entity. The owner of a trademark possesses the license to use the mark. Examples of trademarks include the bulls-eye symbol for Target, and word marks like Xerox and Macintosh.

Trademark infringement occurs whenever someone uses rights reserved just for the trademark owner without the owner’s permission. You could be guilty of infringement if you improperly use another’s trademark, even if that use is unintentional.

If you live outside the United States, be aware of the trademark laws governing your jurisdiction. Many countries have ratified international agreements that seek to protect trademark owners.

Trademark ‘fair use’

The “fair use” of another’s trademark means that, depending on your particular situation, you can sometimes use another’s trademark in your own work without permission from the trademark owner. You may fairly use another’s trademark inconspicuously in your own work to identify that product or service, while avoiding the risk of misattributing your work to the trademark owner. Fair use often permits “fair comment” of another’s trademark, such as comparing your product to another’s in an advertisement. A work that incorporates another’s trademark in a genuine parody or satire is often fair use, so long as it is not a disguised attempt to compete with another’s products or services.

Examples of actions that may be infringement include altering another’s trademark or the product or service associated with it, or directly or indirectly making false claims about the trademark or product or service with that it is associated.

Copyright Act

Here is the wording of the U.S. Copyright Act with respect to fair use:

Sec. 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(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.

Additional resources

U.S. Copyright Office on fair use: Can I use someone else’s work? Can someone else use mine? (FAQ)

Socialbrite’s law resources

Center for Social Media’s Fair Use Project

Stanford University: Copyright and fair use

Documentary filmmakers’ statement of best practices in fair use

Podcasting legal guide

Wikipedia on fair use

Wikipedia on copyright

University of Cincinnati Libraries: Using Images FAQs

Nolo law center: When Copying Is Okay: The “Fair Use” Rule

Stanford University Library: Summaries of Fair Use Cases

Creative Commons on remixing

Please comment on, correct or expand upon this article.