Fair Use and Sciborg Sam
Last night while mindlessly flipping through channels, I discovered that Sciborg Sam has his own Austin cable access show. I first met Sam Alexander years ago while a buyer at Book People when he was hawking his self-published novel Sciborg Sam and the Search for Extraterrestrial Intelligence. He claimed the book was factual and actually happened to him.
I went on to relate all that Sam had been up to in the ensuing years including reviews and commentary-- mostly negative. As is common in blogs, I included an image of Sam as well as a You Tube video. Essentially what I did was give Sam free publicity.
The Dark Forces Book Group blog (and homepage) is graciously hosted by Erik Secker. Erik received this cease and desist letter from Sam Alexander.
Sam Alexander
XXXXXXXX-XXXX.com
XX XXX XXXX
Austin, TX 78765
January 20, 2009
Erik Secker
XXXXXXXX
Austin, TX 78750
Dear Mr. Secker
This letter is to inform you that your website is in violation of United States copyright laws. Since you clearly attribute material on the site to me, you either know or should know that the material contained on the site is subject to copyright protection. This is the link on your website that is in violation:
http://darkforces.powbangzap.
com/blog/labels/Sciborg%20Sam. html
There is an image of my artwork posted on it and a music video produced by my band and also text copied from my website. These were posted without permission or contract. Your website portrays my work in a negative way, which I believe may be libelous. This link and infringed artwork and video must be deleted from your server within 33 days from the date of this letter, otherwise I will be forced to take up legal action and you will be summoned to court. Feel free to inform me when your obligation is complete.
Sincerely,
Sam Alexander
Subject to copyright protection? I think not. Reviews, negative or not, are protected under Fair Use statutes.
From BitLaw:
Nonetheless, there are some traditional activities which have been used to illustrate when the fair use doctrine would apply. These activities include:
- small excerpts in a review or criticism for purposes of illustration or comment;
- a parody which incorporates some elements (but not all) of the work being parodied;
- quotations from a speech, address, or position paper in a news report; and
- limited copying made by a student for academic work.
And Badmovies.org provides an excellent article about the use of copyrighted material in reviews. In the article, the author quotes from Title 17, United States Code Section 107.
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.
I'm not a lawyer, but I sincerely doubt that using one image and a video that is readily available for use on a public video site, constitutes copyright infringement. Would any of the lawyers out there like to chime in?
If I remove this entry because one person didn't like what I wrote about him, I'm afraid it could establish a bad precedent and place limits upon not only my abilities as a reviewer and commentator but others as well.
Labels: copyright law, fair use
posted by Rick Klaw at
12:39 PM
6 Comments:
Sam's grasp of intellectual property law and, for that matter, simple good manners seems to be at approximately the same level of sophistication and professionalism as his creative output in general.
I wonder if he's really so dumb that he'd try to sue? What a drip!
Ken
This is even better. Sciborg Sam's site is down! I get this error when I tried it:
Address Not Found
Firefox can't find the server at www.sciborg-gear.com.
If I recall correctly, libel and slander both include deliberate lies as criteria, and both are exceedingly difficult to prove. And since a review is an opinion, it can't in itself be a lie.
As someone who has written hundreds of reviews and received thousands of reviews I can confirm that no copyright issues are involved.
Mike Moorcock
I've been doing some more research on the matter. The Electronic Frontier Foundation in particular has some pertinent info.
When can I borrow someone's images for my blog post?
Images are subject to the same copyright and fair use laws as written materials, so here too you'll want to think about the fair use factors that might apply. Is the image used in a transformative way? Are you taking only what's necessary to convey your point? A thumbnail (reduced-size) image, or a portion of a larger image is more likely to be fair use than taking an entire full-size image.
I found something interesting on someone else's blog. May I quote it?
Yes. Short quotations will usually be fair use, not copyright infringement. 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." So if you are commenting on or criticizing an item someone else has posted, you have a fair use right to quote. The law favors "transformative" uses — commentary, either praise or criticism, is better than straight copying — but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as "transformative." The blog's author might also have granted you even more generous rights through a Creative Commons license, so you should check for that as well.
Sam was never the sharpest blade in the drawer...I can attest to that. perhaps he is just angry at those student loans he keeps dodging...
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