5 Holiday Copyright Hazards for Bloggers

Filed as Guides on November 17, 2008 11:22 am

For at least some sites and some bloggers, the holiday season has already begun on a rather depressing note. Sites that have posted prices or information from Wal-Mart’s upcoming “Black Friday” advertisements have already been threatened. At least one site, SearchAllDeals, has received a DMCA Takedown Notice regarding it.

Even though the copyright element of the claim is questionable, especially considering that you can not copyright facts, including prices, it is clear that the holidays can introduce a new set of copyright hazards for bloggers and other Webmasters.

So, as we rapidly approach the holiday season, here are five of the biggest copyright hazards that you may need to watch out for as you celebrate the season online.

Songs

It is common during the holidays to use Christmas and other songs as part of videos or other presentations. However, much of the content in those songs is copyrighted.

Even if the composition is in the public domain, the modern recording likely is not. So, where there is nothing to stop you from singing and making your own recording of “Ode to Joy”, the performances of others may be protected still. Also, modern adaptations of classic songs, such as “Jingle Bell Rock” likely have elements that are copyright protected.

Though disputes over holiday music are relatively rare, especially when compared to ones over major artists, they can arise. Typically, it is better to be safe than sorry.

How to Avoid Issues: To avoid potential problems, find music that is properly licensed for the use you want to use and/or stick to your own versions of songs within the public domain. Also, you can consider severely limiting your use an trying to make a strong fair use argument for your copying.

Ads

As the sites listed above have found, many stores are very protective of their advertisements, especially before they are released.

Though copyright law does not protect against the repeating of facts or information (though it could be a breach of trade secret), it does protect against displaying the expression of that information. While you might be able to display information from the ad, scanning and reposting the advertisement, especially before it has been released to the public, is very dangerous.

No matter how crazy it seems to go after people that help distribute an advertisement to those who might not have seen it, do not forget that both TV commercials and music videos are routinely pulled of YouTube though they serve the same function.

Right or wrong, it is the company’s decision to determine how their advertisements are displayed.

How to Avoid Issues: Stick to retelling the facts from the advertisement and not using the ad itself if possible. Also, pay attention to how the companies react as many will likely tolerate the reprinting of their ads. Also, to be completely safe, do not republish anything from the ads before they are released to the public as it may, arguably, run afoul of trade secret law.

Images

As with virtually any other type of image, holiday images, including drawings of Santa Claus, etc. are likely protected by copyright. Though it may be tempting to line a holiday post with images from the season, most likely such images would be protected under copyright and subject to the same rules.

Though, as with most things common to the holidays, the basis of the image, including the scenes and characters, concepts are well into the public domain, the recent expressions of those ideas are still protected. Nothing could stop you from making your own drawing of Santa Claus, but by using someone else’s could, possibly, be a cause for action.

Fortunately, in this area, there is a wealth of material that is in the public domain (paintings, sculptures, etc.) that may work well.

How to Avoid Issues: With images in posts, you can likely limit your use and build a strong fair use case. Though that won’t protect you from a conflict, it can protect you from damages. The safer solution though is to use your own images or limit yourself to public domain or licensed works. You should be able to find either fairly trivially.

Parodies

The holidays seem to bring out more than the season of giving, but also the season of parodies. There are hundreds, if not thousands of parodies of most famous Christmas songs that range from the tame to the very adult.

Fortunately, parodies, in the United States, are a very well protected form of expression. So long as the parody attempts to poke fun at the original work or its subject and is not an attempt to replace it, parodies are generally acceptable. However, parody use is still run through the typical four factors for fair use analysis so it is important to think of it in those terms and some parodies, such as “The Cat is Not in the Hat” have been stifled on copyright claims.

For the most part, so long as your parody offers commentary or criticism on the same subject of the original work, in this case the season, it will likely have a good chance of surviving. However, fair use questions are always difficult to resolve and are notably unpredictable.

The safest route is to parody items that are in the public domain, which includes many of the most popular holiday works.

How to Avoid Issues: Make sure that your parodies are within the bounds of fair use or, if you want extra protection, limit your lampooning to works in the public domain. In truth, there are very few lawsuits over parodies for a variety of reasons, but they can and do happen.

Home Videos

The one thing that is almost universal this time of year is the use of personal video cameras to capture videos and record memories. It is a cherished family tradition and, in the age of YouTube, those memories can easily be shared with family members or the world.

However, it is not uncommon when shooting video to also grab copyrighted items, from a television playing the room to a song playing in the background. As the Lenz case proved, those uses, when combined with extremely sensitive filtering and detection tools, can lead to serious copyright conflicts.

Fortunately, also as the Lenz case showed, those incidental captures of copyrighted bits are, for the most part, protected under fair use. Since, most likely, the amount of content used will be extremely trivial and unlikely to damage the copyrighted work at all, such use is not likely to raise any serious copyright issue.

This remains a situation where it is more important to be aware of the fingerprinting and other tools that video sharing sites, as well as copyright holders, use to detect infringing works. These videos could be held for further review or be the subject of takedown notices. It is best to be prepared.

How to Avoid Issues: Be mindful of copyright issues as you shoot your videos and, if you have something you think may cause trouble, do not post that portion on the Web. Even if you are protected under fair use, fingerprinting technology may artificially flag you as infringing. Understand your rights under the DMCA (or other applicable laws) and be prepared for at least the remote possibility.

Conclusions

Though it is depressing to think of copyright and other intellectual property issues at this time of year, there is nothing more depressing or ruinous to the season than being hit with a takedown notice, a nastygram or even a lawsuit.

Fortunately though, serious copyright disputes surrounding the holidays are fairly rare. Not only is much of the material involved well into the public domain, but the spirit of the season seems to make even the staunchest of copyright holders a little bit more lenient.

Still, it is best not to rely on the generosity of the season. There are more than a few grinches that would love nothing more than to ruin the Christmas season for those that cross their copyrights.

Tags: , , , , , , , ,

This post was written by

You can visit the for a short bio, more posts, and other information about the author.

Submissions & Subscriptions

Submit the post to Reddit, StumbleUpon, Digg or Del.icio.us.

Did you like it? Then subscribe to our RSS feed!



  1. By Melissa Donovan, Copywriter posted on November 17, 2008 at 6:02 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    This is an excellent and extremely useful article. I would guess that other than streaming written content on the web, the use of copyrighted images probably has the greatest number of infractions. There are lots of great creative commons images available on Flickr and at iStockPhoto, you can get stock photos and images for as little as a dollar apiece – not a bad investment for a clear, sharp image for your site, which can be used and modified in a number of ways. Awesome tips!

    Reply

  2. By Jonathan Bailey posted on November 17, 2008 at 11:55 pm
    Want an avatar? Get a gravatar! • You can link to this comment

    Glad you liked the list! You can also get CC licensed media from Wikimedia, which I find very useful for some generic items. There are more and more great places to find the content you need without any copyright woes.

    Reply

  3. By Paul William Tenny posted on November 18, 2008 at 3:46 am
    Want an avatar? Get a gravatar! • You can link to this comment

    If anyone sends a DMCA take down letter over facts — the prices and store as opposed a scan of an ad — then that makes the DMCA claim “bad faith”. That’s a serious problem, there’s legal liability for that for the claimant.

    Reply

  4. By Jonathan Bailey posted on November 18, 2008 at 7:36 am
    Want an avatar? Get a gravatar! • You can link to this comment

    Paul. Agreed. As the Diebold case showed, if you send a DMCA notice in bad faith, you can wind up paying a great deal of money. The problem is that most victims of DMCA notices don’t have the resources to go after those who file a bad claim.

    The Diebold case was litigated by the EFF as was the Crook V. Diehl case.

    Absolutely correct though, false DMCA equals a very bad move for the claimant…

    Reply

    Your words are your own, so be nice and helpful if you can. If this is the first time you're posting a comment, it might go into moderation. Don't worry, it's not lost, so there's no need to repost it! We accept clean XHTML in comments, but don't overdo it please.

    Current ye@r *