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Business Bloggers & Copyright: Attribution Doesn’t Equate to Permission

copy copy copy copy copy copy copy copy copy c...Image by bettyx1138 via Flickr

In my first series of posts for IowaBiz, I’ve been addressing some copyright issues facing business bloggers.  The first primarily focused on the fair use doctrine. Next, we discussed a few more copyright factoids. Today, let’s talk about the commonly misunderstood distinction between plagiarism and copyright infringement.

Particularly for those of us engaged online for business and marketing, it’s customary - often complimentary - to comment about and link to someone else’s blog or site. Just as a scholarly paper includes a bibliography, bloggers are expected to properly credit and link to their sources.

As Professor Lastowka succinctly explains in his 2007 Boston University Law Review Article (published in 87 Boston U. L. Rev. 41 (2007) - draft available on SSRN here), “Where a provider of information can obtain essentially no market benefit other than popular attention, proper attribution of the information to the source of production is essential.”

Unfortunately, however, many bloggers mistakenly assume a reference to the original source, or even a link back to the original, means they’re free to copy at will without worrying about copyright infringement.

In a nutshell, giving credit doesn’t necessarily mean you’re not infringing.  To illustrate:  Let’s say I stole Todd’s wallet to buy myself a caramel macchiato. Would he consider me less of a thief if I clearly explained to the barista, “This is Todd’s money,” as I handed over his credit card?  Probably not.  Stealing is stealing.

Attributing a work means you’re not plagiarizing, but it doesn’t necessarily mean you’re not infringing a copyright. You have an ethical obligation to properly attribute a work to avoid plagiarizing someone else’s work. You have a legal obligation to respect the exclusive rights held by a copyright owner. 

Want to borrow a picture you found via Google image search? Want to use a hiphop song as background music in a YouTube marketing video? If you’d like to quote someone else’s copyrighted work on your own blog, you could simply seek written permission.

If you don’t have express permission, consider the fair use factors

As you probably remember, attribution isn’t one of the express statutory factors. However, the fair use inquiry focuses on a balance of equities. Consequently, attribution often indirectly plays into the analysis. For example, properly crediting and linking back to the original source may weigh in favor of fair use under the factor addressing the effect of the use upon the value/potential market of the copyrighted work. As Professor Lastowka aptly explained in his Digital Attribution article mentioned above, attribution is not “regularly considered by courts as a factor in the fair use analysis." Rather, “in certain cases, plaintiffs and defendants have been successful in persuading courts to incorporate evidence about attribution into a fair use analysis.” Professor Lastowka goes on to set forth a well-reasoned argument to propose adding attribution as a fifth fair use factor under the federal Copyright Act.

In sum, obtain permission or ensure you're comfortable with a fair use exception for your particular use. And give proper credit and link to the original source. For further reading on copyright and plagiarism, you may want to check out the resources listed under the Simpson College Copyright & Plagiarism Research Guide online.

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Thanks for the shout out, Megan. And for teaching me that I need to more closely watch my wallet when drinking coffee with attorneys. Larry James has tried to warn me about you. :0

I just clicked over from another site and figured I should take a look around. Like what I see so now I'm following you. Look forward to checking out your some of your posts again.

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