Fair Use CopyFUD and SPURS (the Most Useless Risk Assessment Tool Ever Created)

In reading the great Copyright Librarian blog, I came across her use of the term CopyFUD and it’s a fantastic term.  She describes it as shorthand for blog posts and articles that spread fear, uncertainty, and doubt about copyright.  I hope she doesn’t mind my use of it (for a variety of ironic and non-ironic reasons), but I think it’s a great term.  Mostly because there’s so much copyFUD out there.

Here’s the latest example: A Flaw in Pinterest’s potential fair use argument.  Right off the bat you’ve got major copyFUD since nowhere in the blog post does it talk about a potential fair use argument that Pinterest might make.  It talks about fair use a bit, but from the user’s perspective and not the perspective of a lawsuit against Pinterest.

I have no idea who the rest of the flaw blog post is for–it talks about the four factors of fair use, transitions into an awkward conversation about transformation (the first factor of fair use’s four factors) and whether or not something is creative enough to be protected by copyright (not a part of fair use), then talks about the financial impact of the infringing use for a hypothetical photographer whose photos are pinned by others, and concludes with the recommendation that photographers or other creative types post on their pages/sites/whatever if their content is Pinterest-friendly.

From a legal analysis perspective, it’s a hot mess.  But it’s copyFUD so you should expect that.

Rather than feed the FUD, let me lay this out for you–there is no simple test for fair use.  There’s no number of words you can quote from Twilight but if you quote more then a team of sparkly attorneys will come crashing down on your site.  There isn’t a set time limit of seconds which you can use a video clip from Die Hard but if you show more than the studio’s legal team will steal your shoes and shoot out your windows.  There’s no simple limit.  That doesn’t mean fair use is dead–it’s alive and well, but it isn’t easy and it isn’t simple and a blog post (this one included) isn’t where you go for a detailed understanding.

What you should know is this: fair use is a defense.  So it’s only going to help you if you get sued.  You know what’s even better than a defense when you’re sued?  Not getting sued in the first place.

Now, any attorney can tell you that you can get sued by anyone for doing anything.  Whether that lawsuit has merit or sticks is another question.  So if the lawsuit isn’t an outright fabrication of something you did, it’s great to have a defense.  But if you’re starting to dip into the area of copying other people’s intellectual property with the plan to assert fair use if you get sued, you might want formal legal advice.

I can’t tell you how to avoid getting sued since that depends on way too many factors to blog.  But I can give you a quick look at what I call the Social Posting User Risk Spectrum or SPURS.  And before you ask, yes I live in Texas so I have the right to use the acronym.

A useful tool isn't here you fool
{clap clap clap clap}
Deep in the heart of Texas!

The risk spectrum I’m talking about here is the risk that you could be successfully sued for infringing someone else’s intellectual property based on your social posting.

On the far left side you have the safest content posting–uploading work that is entirely your own, original, creative work.  That’s yours and you can do with it as you please.  You may want to devise a strategy for how you publish or distribute your content if there’s value in it, but that’s hard to tell unless you’re already a professional artist.  And bear in mind that if you post something defamatory or harassing or threatening that’s a whole other legal arena beyond copyright–I’m not saying your post is fine legally (I wouldn’t say that anyway as you know from reading that IMPORTANT DISCLAIMER over on the right) but I’m saying you have the least risk of dealing with a successful lawsuit based on copyright infringement.

On the far right ride you have the riskiest content posting.  This is where you have personally taken action to circumvent copyright protection in order to distribute the content on a social media platform.  Like you’ve used a program to burn a copy of a Blu-Ray movie and you posted it to YouTube.  Or you went into a museum, ignored the No Photography signs, took several pictures, and posted them to Facebook.  Or you scanned an entire Harry Potter novel into a PDF and uploaded it to Scribd for public consumption.  These are the kinds of social content posts that everyone knows, or should know, violates copyright protections.  For this kind of posting, it’s just a question of whether you’re found out and how much the copyright holder wants to punish you.

In between, well, that’s tricky.  It will depend on a lot of factors based on the content (how was it posted, did the owner grant permission to redistribute explicitly or implicitly, etc.), how you shared the content (clicking a Share button on the platform the owner uploaded to versus downloading a copy to place  on another platform, etc.), whether you did anything to the content (altered it, parodied it, included in a larger artwork, etc.), and if you have any defenses (fair use, educational use, etc.).  And that’s just to determine if you would be liable–it doesn’t account for whether the owner even wants to sue you or knows what you are doing.  To quote Yul Brynner, “Etc. etc. etc.”

In summary, you see that you can get sued for activity completely in the green, not get sued for activity completely in the red, and all combinations of suit/non-suit for everything in between.  Meaning SPURS is a completely useless tool if you’re looking for definitive answers.  Because that’s how copyright lawsuits and social content rolls–there are no definitive answers.  I’m not telling you to delete your accounts, log off, and shut yourself in your home reading public domain novels from the 1700s.  But I am telling you that there is a spectrum of risk, there are areas that are safer than others, and you need to think about how much risk you are comfortable taking on in your social activities.

Any advice you read on a blog with more detail than that probably should be ignored.


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Filed under CopyFUD, Copyright, Pinterest, Social Media Lawyers, Terms and Conditions

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