Since "excerpting" articales has recently been found fair use, could excerpting with an image also fall under that precedence?

Asked almost 2 years ago - Carefree, AZ

In light of the Righhaven v. Democratic Underground court decision stating, "that a common practice on the Internet – excerpting a few sentences and linking to interesting articles elsewhere – is a fair use, not an infringement of copyright" Source (https://www.eff.org/deeplinks/2012/03/court-dec...)
is it plausible to deem safe the practice of excerpting with the use of the image also associated with said article or does this precedence seem to only be applicable to the text of the article in question?
These would be used on a blog post "magazine" to inform people of recipes, products, etc.

Thanks or your input!

Attorney answers (3)

  1. Maurice N Ross

    Pro

    Contributor Level 20

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    Answered . I believe you are reading too much into this decision, which dealt only with the situation when a user of a web-site, without knowledge or consent of the owner of the web-site, published excerpts from and linked to an article. This decision does not hold that the fair use doctrine would have protected the owner or publisher of the web-site had the owner of publisher of the web-sight engaged in the same activity. Further, the procedural context of this decision gives it little or no value as precedent--it is a single of a single district court on an issue that is being concurrently litigated in several circuit courts and that has been the subject of widespread debate among legal experts. Indeed, the issue of whether excerpting and linking constitutes fair use will not be resolved until the Supreme Court addresses the issue or Congress modifies Copyright Law. Particularly under attack are so-called news aggregation web-sites that provide excerpts from articles by major news organizations with links to the articles, thereby diverting substantial web-traffic that would otherwise belong to the news organizations. Many of us believe that such aggregation sites are not immune from liability under the fair use doctrine. In this context, it certainly cannot be "safe" to excerpt together with an image. Use of an entire copyrighted image to illustrate a news story is highly problematic. Recent case law, for example, has indicated that the fair use doctrine did not permit publication of a photograph taken at a celebrity wedding, even though the wedding itself was newsworthy.

    You should not be confused by the outcome of the Righthaven cases----these cases were dismissed on technical and procedural grounds, but the courts did not have the occasion to address the substantive legal issues raised in them. And many experts (myself included) believe that the Nevada district courts erred when they held that the plaintiffs in these cases did not have standing to pursue the claims. This is an unsettled and controversial area of the law, and no one can say with certainty what the final outcome will be.

  2. Bruce E. Burdick

    Pro

    Contributor Level 20

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    Answered . I agree with the nice discussion by Attorney Ross. You should not extrapolate much from the Righthaven decision. It is a trial court decision in a hotly contested area, the court trying to find a path to do justice in the age of the Internet with laws designed for the days of newspapers alone. What you posit as settled law " excerpting and linking is fair use" is anything but settled. It is in a state of flux. However, when you add theft of the image to theft of the excerpt, you are almost certainly an infringer and not a fair user. Read 17 USC 107 and look at the four factors. You are on the wrong side of all of them. The main change you propose is to significantly increase " the amount and substantiality of the portion used in relation to the copyrighted work as a whole", and you would significantly increase "the effect of the use upon the potential market for or value of the copyrighted work." I think the last two factors would result in you being held NOT to be engaged in fair use. Also, "fair use" is a defense, so before you get to a decision on that you are into about $50K-$100K, or lots more if it's a big-time plaintiff, in legal fees. Since you are here on Avvo seeking free legal advice, I doubt you can pony up that much to even get to the fair use determination stage of the proceeding you are virtually certain to receive. There is yet another thing to consider, the plaintiffs in excerpting case are looking for a defendant that also uses images so they can get a court decision that will scare everyone else doing excerpting, even if less than what you propose.

    So, my prediction if you try this is that you will be sued, you will lose and you will be the one people will be quoting in the case name. At least you might become famous for your bankruptcy that is likely to result from doing as you propose.

    Of course, others might opine otherwise, but you would have to come up with the $100K to defend your "image + article excerpting" on the off chance you might prevail. Not a pleasant prospect, I think.

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is... more
  3. Daniel Nathan Ballard

    Contributor Level 20

    Answered . Google does not, in the U.S. at least, buy licenses for all the photographs that it publishes via its news aggregator: http://news.google.com Neither does Bing: http://www.bing.com/news . There are, moreover, thousands of companies that distribute smartphone applications that aggregate content. Not to mention the MILLIONS of people and companies who publish not only their content but other's as well via RSS feeds. And then there's the Second Circuit Barclays Capital Inc. v. Theflyonthewall. com, Inc., 650 F. 3d 876 decision which goes most of the way toward holding that news aggregators who publish copyrightable snippets of news are not infringers.

    So ... can you lawfully publish photographs attached to the news snippets that you aggregate on a blog that you write? Dunno. But millions do -- even the big boys.

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and... more

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