Archive for the ‘fair use’ Category

Fair Use and Sciborg Sam

Wednesday, January 21st, 2009

Last January, I blogged about 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.