Blogging is Not Defamation

There is an interesting post over at the Kentucky Law Review blog. Interesting to bloggers that is.

Turns out the court has looked at trademarks and bloggers but very few suits have been filed against bloggers.

Finis Price at TechnoEsq writes that in BidZirk v. Smith, 2007 WL 3119445 (D.S.C. Oct. 22, 2007), the Court held:
1.) Linking to a photograph published on another website is not a publicity rights violation;
2.) Blogger’s remarks are in the context of news reporting or commentary and thus are immune from trademark claims. (Granting the same protection given journalists though not specifically labeling bloggers journalists.)

In the BidZirk case, the court not only granted summary judgment, but sanctions against Plaintiff’s counsel as well.

In New York, a personal injury attorney was "asked" by Avis to cease and desist from using its logo in a blog post that discussed a court ruling against Avis. The attorney,Eric Turkewitz, apparently posted the logo again (see right) to blog a post questioning just where it is the lines are drawn. It seems pretty clear that one may not use a company's logo as a trademark, but this personal injury attorney is clearly not in the rental car business, and it's hard to imagine that anyone might become confused about that; and perhaps ask the attorney if they can borrow his car.

I haven't run into any of this trademark stuff. But I have had my hand slapped when I've gotten lazy....or...in a hurry, is more like it.

There have been two such occassions when I posted too much of an article, even though I linked to and fully attributed the source. Fair use doctrine is still apparently somewhat subjective but the Copyright Act says that "fair use...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

The Electronic Frontier Foundation says the Copyright Act sets out four factors for courts to look at (17 U.S.C. § 107):
The purpose and character of the use.

• Transformative uses are favored over mere copying.
• Non-commercial uses are also more likely fair.

The nature of the copyrighted work.

• Is the original factual in nature or fiction?
• Published or unpublished?
• Creative and unpublished works get more protection under copyright, while using factual material is more often fair use.

The amount and substantiality of the portion used.

• Copying nearly all of a work, or copying its "heart" is less likely to be fair.

The effect on the market or potential market.

• This factor is often held to be the most important in the analysis, and it applies even if the original is given away for free. If you use the copied work in a way that substitutes for the original in the market, it's unlikely to be a fair use; uses that serve a different audience or purpose are more likely fair.

Linking to the original may also help to diminish the substitution effect.

Note that criticism or parody that has the side effect of reducing a market may be fair because of its transformative character.

In other words, if criticism of a product is so powerful that people stop buying the product, that doesn't count as having an "effect on the market for the work" under copyright law.

So what's a blogger to do?

In my first admonishment came from Tom Eblen, managing editor of the Herald-Leader. Some story was "hot," I was running out the door and I posted the whole thing. But Tom was very cool about it. I asked him if he wanted to take the story down or just behave myself in the future. He suggested that simply behaving would keep me out of the "principal's office." The Herald-Leader's policy is something like not posting more than half of the story. Seems fair to me. After all, H-L shouldn't miss an opportunity that a reader of KSN&C might wish to click over for more. If I post the whole thing, that's less likely.

The second complaint came from Education Week. The "nice lady" said Ed Week's policy was one paragraph. Hardly consistent with the Copyright Act, but I didn't fuss about it. I took it down, and may not link to them again. Unless, I change my mind tomorrow.