Trump, The First

Amendment, and
Media Law for Journalists
brought to you by a generous grant from
 Copyright and
Digital Media

Jeffrey P. Hermes
Deputy Director, Media Law Resource Center
 Disclaimer

• This slide deck does not constitute legal advice

on any specific question or create an attorney-
client relationship with the authors.

• If you have a question regarding copyright

issues with respect to your own activities, please
seek the advice of a copyright lawyer.
 Copyright

• Plagiarism vs. Copyright Law

• One is a principle of ethical journalism

• The other is embodied in Title 17 of the United

States Code
 Copyright

• Trademark vs. Copyright Law

• Trademark is about the source of goods and

services

• Logos, slogans, brand names

• Copyright is about protecting creative works

 Copyright

• The Rights in “Copyright”

• Reproduction

• Derivative works

• Distribution of copies
 Copyright
• The Rights in “Copyright”

• Public performance

• Literary, musical, dramatic, choreographic, pantomimes,

motion pictures, audiovisual works

• Public display

• Literary, musical, dramatic, choreographic, pantomimes,

pictorial, graphic, or sculptural works

• Performance by digital transmission

• Sound recordings
 Copyrightability
• What is copyrightable?

• "An original work of authorship fixed in a

tangible medium of expression"

Ai Weiwei Frankie Fouganthin

CC BY-SA 4.0
 Copyrightability
• The idea-fact/expression dichotomy

• Copyright is NOT about:

• Research and sweat of the brow

• Discovery of facts

• Unique interpretations or theories

 Copyrightability
• The idea-fact/expression dichotomy

• Copyright IS about:

• Original selection, arrangement, and

presentation of uncopyrightable facts or
ideas
 Copyrightability

• No protection for short phrases; e.g., headlines

• De minimis uses
Authorship
• Who is an
“author”?
• Single author
• “Work for hire”:
employees,
certain
commissioned
works by written
agreement
• Joint authorship
Authorship
 Copyright Registration
• The relevance of registration

• Registration is not a condition of copyright

protection

• Attempt to register is necessary to sue for

infringement

• Copyright Office must issue a decision

• Registration is a prerequisite for certain remedies:

attorney’s fees and statutory damage awards
 Copyright Registration
• How do you register?

• Online at https://copyright.gov/registration

• Fees

• Single work with single author ($35)

• Other single works ($55)

• Collected newspapers ($80)

• Collected photographs ($55)

• Collected contributions to periodicals ($85)

 Copyright Registration
• Should I consider registering my work?

• Do you own it, or did you assign the copyright?

• More on that later

• Has infringement already occurred, or is it likely?

• Do you need statutory damages, or is an

injunction sufficient?
 Infringement
• What constitutes infringement?

• Actual copying required – coincidental

creation is not prohibited

• Plaintiff must prove defendant had access to

the work allegedly copied

• Must copy expression, and not merely ideas

 Infringement

• What constitutes infringement?

• Direct/literal similarity

• Substantial similarity of copyrightable

elements
 Infringement
• Copyright infringement is a “strict liability” tort

• The plaintiff doesn’t need to prove that you

knew you were infringing

• Doesn’t matter for liability if you thought you

had proper permission (more on this later)

• Innocence might, in very limited circumstance,

cap damages
 The Author’s Claim
• Author writes book with an unusual premise or viewpoint

• Author submits book to the publishing division of a major media

conglomerate, and is rejected

• Three years later, the studio division of the conglomerate releases a

film based on the same viewpoint/premise

• The film follows the general plot beats of the novel, with some very
similar scenes

• The film goes on to win multiple Academy Awards

• Does the author have an infringement claim vs. the studio?

 Fair Use

• Complex, judge-made exception to copyright

• Intertwined with First Amendment issues

• Includes of copying “for purposes such as

criticism, comment, news reporting, teaching …,
scholarship, or research”
 Fair Use
• Balancing test of four factors, none determinative:

1) the purpose and character of the use;

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; and

4) the effect of the use upon the potential market for or

value of the copyrighted work.
 Fair Use
• Factor One: Purpose and character of the use

• “Transformative” use

• “Communicates something new and different

from the original or expands its utility, thus
serving copyright's overall objective of
contributing to public knowledge."

• Commerical vs. non-commercial use

 Fair Use
• Factor One: Purpose and character of the use

• Parody vs. satire

• “A secondary author is not necessarily at liberty

to make wholesale takings of the original author's
expression merely because of how well the
original author's expression would convey the
secondary author's different message.”
 Fair Use

Campbell v. Acuff-Rose (U.S. 1994)

(for-profit parody)
Fair Use
Fair Use
 Fair Use
• Brownmark Films, LLC v. Comedy Partners,
682 F.3d 687 (7th Cir. 2012)

• “When the two works in this case are viewed

side-by-side, the South Park episode is clearly a
parody of the original WWITB video, providing
commentary on the ridiculousness of the original
video and the viral nature of certain YouTube
videos.”
 Fair Use
• Factor Two: Nature of the copyrighted work

• Minor factor

• Considered alongside Factor One in

determining whether use is transformative

• Factual works less protected, but no

preference based on quality
 Fair Use

• Factor Three: Amount and substantiality of portion

used

• Raw percentage vs. importance of excerpt

• "The larger the amount, or the more important the

part, of the original that is copied, the greater the
likelihood that the secondary work might serve as an
effectively competing substitute for the original.”
 Fair Use

• Factor Four: Effect on the market for the original

• Does the copy substitute for the original in the

marketplace, and to what extent?

• Considers not only the market for the original work

but also possible derivative works
 Fair Use

Harper & Row v. Nation Enters. (U.S. 1985)

(heart of the work)
 Fair Use
• Am I commenting on the original?

• Is the material I’m sharing the the basis of the

story?

• How much of the original do I actually need to

use?

• Is a license available to purchase?

Licenses & Assignments

• Licenses vs. assignments

• Exclusive vs. non-exclusive licenses

• Other limitations on licenses: time, format,

geographic location, etc.

• Is permission the simplest defense to an

infringement claim?
Licenses & Assignments
Licenses & Assignments
• Mere availability online is not permission

• What about website terms of service?

• Twitter: Agence France Presse v. Morel, 934 F.

Supp. 2d 547 (S.D.N.Y. 2013).
Licenses & Assignments

• Identifying the
rightsholder

• Image posted by Flickr

user Mark Anderson

• Purportedly offered for

public use under CC BY
2.0 license
Licenses & Assignments

• What if you want to

use this photo you
find online?

• Who might hold the

rights to this picture?
Links, Embeds & Frames
Links, Embeds & Frames
Goldman v. Breitbart News
Network, LLC (S.D.N.Y. Feb.
15, 2018)

• Photo posted to Snapchat

• Wound up on Twitter

• Tweets embedded by
Breitbart, Time, Vox, Boston
Globe, and more

• The “server test”?

 Social Media
• Sharing your own content online

• Are you sharing a link or making a copy?

• Are you the copyright owner or just a licensee?

• If you hold a license, what does it say?

 Social Media
• Sharing other people’s content on a platform

• Did you find the content on the platform, or are you

introducing it there?

• Did the copyright holder publish the content the

platform?

• Are you using a platform’s built-in functions

(retweeting, etc.)?

• Who is protected by the Terms of Use?

 Social Media
• Taking material for use somewhere else

• Are you linking, embedding, or straight-up copying?

• Who is protected by the Terms of Use?

• Can you argue fair use?

• Do you know who holds the copyright in the content

you’re sharing?

• Can you get permission?

 Thank You

Jeffrey Hermes
Deputy Director, Media Law Resource Center
jhermes@medialaw.org