Oh Crap! You’ve Been Robbed

Your content has been used without your permission.

Now what do you do?

Remember that story I told you in the previous video about the person whose content on the web had been stolen.

Content theft

That was bad enough, but  it was stolen and used by a friend, or someone she thought was a friend. Copying may be the greatest compliment, but not in this case. The damage has been done to your reputation, your brand, and your finances. Now what do you do?

There are several points to consider before you choose a course of action.

First reason to consider: Given the situation, what outcome do you want? and second, Do you want to spend the time and money to pursue it?

So what are the other factors to consider before choosing a course of action against someone who steals your content? 

You might be asking these questions:

  • How might this hurt my business?
  • Can I easily identify/locate the thief?
  • What if the thief is making money from my content?
  • Do I believe that this thief is just clueless about copyright law or do they deliberately want to hurt me?
  • Do I have my protection in place? (Terms and Conditions)
  • Could the thief be exercising their rights under Fair Use?

Fair Use is part of the U.S. Copyright Law. In fact it is in the very next section after the list of what is protected as the copyright owner’s bundle of exclusive rights to copy, distribute, create derivative works, display or perform publicly and to give permission to others to use any of those rights.

Let’s examine the facts:

We know that your content qualified for copyright protection.

We know that someone else has copied and distributed at least a portion.

So where does FAIR USE come into this situation?

Looking at the video above, let’s see how Fair Use fits into the digital age.

That 29-second video, often called “Dancing Baby” became the court case Lenz v. Universal Music Corp. In 2007 Stephanie Lenz posted this video of her son dancing to Let’s Go Crazy, by Prince. on YouTube. Universal Music Group enforces Prince’s copyrights and filed a takedown notice under the Digital Millenium Copyright Act (DMCA). You can imagine the  public’s outcry when they heard about this takedown notice: Prince and Universal Music Group in court against a baby dancing in a 29-second video? Outrageous!!! Amazingly, this baby had turned 12 years old by the time this court case was settled in 2018.

In order to protect herself, Stephanie (the baby’s mom) was required to sue Universal Music Group on a claim of Fair Use. In 2008, a district court in California ruled that “the failure to consider fair use when sending a DMCA notice could give rise to a claim of failing to act in good faith.” Fortunately in this case, Stephanie and her baby won, but imagine how much it cost her to do so.

The message for us: Consider Fair Use before you act.

But what is Fair Use?

Fair Use is defined as follows: “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. 1.     the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. 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;
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

How clear is that? Not very.

So let’s work through an example:  

When you want to apply it in a specific situation, it can be a matter of interpretation. In fact, Fair Use is intentionally ambiguous and flexible to accommodate various situations unimaginable when the law was written in 1976. Professional organizations have developed evaluators and checklists, but they are only a guide. Some points of fact in the specific situation may favor Fair Use while others may oppose Fair Use.  A Fair Use analysis is both art and science; it is not a slam dunk, but it is a right provided in the Copyright Law. It is definitely worth considering. The final decision that a use is a Fair Use can be determined only by a judge in a court of law.

The Fair Use analysis must be done prior to using the copyrighted content. Document Document Document, Date it and save it in a secure place, (Don’t forget where you put it. You may need to present it in court next week, next month, next year, in five years, in ten years, or never.)

If you need support, contact me today for your complimentary 40-minute website review session to set up your first line of defense and Guard Your Goldmine.


Next episode:  You’ve Been Robbed: Next Steps

© 2019 Barbara Ingrassia  All Rights Reserved.

Information provided here should not be construed as legal advice. If you need assistance for further clarity, please consult your attorney.


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