Fair Play

The New York Times published an article on January 1, 2016 entitled “5 Years and $7 Later, U.S. Returns a Seized Hip-Hop Site” by Ben Sisario. In it, Sisario recounts the experience of Kevin Hoffman who ran a previously popular blog called OnSmash.com. OnSmash.com had been at the forefront of music industry blogs until it was seized by the federal government in November 2010. While the government never brought formal charges against Hoffman, it only returned the website to him in November 2015 ~ five years later. The cost for the return to Hoffman was $7, which the government deemed the value of the website.

Unfortunately for Hoffman, the website had previously been very popular and had once provided him with full-time employment. It received endorsements for live performances, was commented on favorably by industry insiders and was considered a premier music promotion site. 

The article doesn’t address whether or not Hoffman had the advice of legal counsel while running his website, but his experience highlights the need for such. If your business relies on intellectual property produced by others (as Hoffman’s did), then you need to be very careful in how you handle that resource.

There is a misunderstanding among many people as to what “fair use” is with respect to protected material. Generally, the Fair Use Doctrine covers commentary and criticism, news reporting, research and scholarship, nonprofit educational uses, and parody. In most situations, you cannot simply copy or provide access to someone else’s protected work and have it be considered fair use.

  • For commentary and criticism, you can reproduce some of a protected work in order to provide your own comment on it. For example, you can quote a few lines from a song or a book, or summarize an article from a newspaper or journal. What you cannot do is reproduce the entire work or provide it to your audience for their own review and commentary.
  • For news reporting, as an example, you can give excerpts of lyrics or a plot outline when reporting or reviewing a play or musical.
  • For research and scholarship, you can quote from small portions of a protected work in order to provide your own insights and commentary.
  • For nonprofit educational uses, there is a limited right to reproduce small portions of protected works for classroom usage.
  • For parody usage, an original work may be used in a fairly extensive manner in order to evoke the original but it is exaggerated or ridiculed in some comic fashion.

Courts will look, in all instances, at the impact of the underlying protected work by your claimed “fair use” thereof. For example, does your usage compete with the protected work? If so, then it is unlikely to be fair use. Courts also consider how much material you are using. Essentially, the more you use, the less likely to be fair use. The courts want to see that you are creating a new work, not merely mirroring the original. And quantity isn’t the only measure – the quality of the usage also matters. For example, if you use the most salient points of a published work in your own, there is a substantial likelihood it won’t be considered fair use.

People also mistakenly believe that if they give attribution, then it doesn’t count as intellectual property infringement. That isn’t the case. If you use the work for commercial purposes (i.e., for you to make money as an advertisement, website content, flyer, etc.), then it is much harder for you to prove fair use, irrespective of credit being given or not.

If you are considering using someone else’s protected work in your business – reproducing a photograph you liked in an advertisement, quoting large sections of a book in your own published article about a particular subject, using streaming audio on your website, as just a few examples – you should reach out to an attorney to help you avoid the situation Hoffman found himself in: having the government confiscate his livelihood.

The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Francine E. Love
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Founder and Managing Attorney at Love Law Firm, PLLC which dedicates its practice to New York business law
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