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Posting Online for Homebound May Have Copyright Considerations

Copyright law is being tested during the COVID-19 pandemic. With everyone stuck in their houses, many people and organizations are posting new content on the internet as a source of diversion. People are reading books for children, musicians are giving concerts, museums are providing tours, instructors are giving dance lessons and teachers are posting reading assignments and workbook pages. While not a life and death issue, those who post their own material and those who use another’s material should understand the limits of copyright law and the risks they are taking in this sudden explosion of online content.

People and organizations who post their own material should remember that creative works on the internet should be provided under a license to the viewer. A short statement that material is for the use of the viewer during this crisis can help the creator protect the work and stop its unauthorized reproduction and use once this outbreak is behind us. This limited license could also help the owner monetize the work when life returns to normal.

People and organizations who perform or display another’s work, such as using background music, reading to children or teaching, should know that the copyright owner must grant their permission.

Copyright law does, however, provide a “fair use” defense, which allows the use of a work without permission, under certain circumstances the law deems not harmful to the owner. The four factors of the fair use test are: (1) the purpose and character of the new use, such as for educational purposes; (2) the nature of the copyrighted work, such as being creative or factual; (3) the amount and substantiality of the portion taken, so that using only a small part is better than using the whole thing; and (4) the effect of the use upon the potential market, meaning, could the owner have been paid for what the new user did instead.

Remember, the copyright owner makes money by licensing the work, and using a work without permission deprives the owner of compensation. Sometimes the owner could be a struggling artist or a startup educational company, as opposed to a big wealthy corporation.

Given the state of the country, and in furtherance of the Common Good, copyright owners may not try to stop the unauthorized use of their works when the use is for diversion or schooling during this pandemic. The copyright owner might not want the bad media of attacking a use that is recognized as a public benefit. In fact, some authors, publishers and other copyright holders have publicly granted a license for people to use their works free of charge during the pandemic. The courts may consider the societal benefit of allowing the use of the work as a strong weight in the fair use analysis, as some have advocated. One court has already weighed the importance of this pandemic in a copyright case and denied an immediate resolution for the plaintiff. But without permission or clearly meeting the fair use test, someone who uses the work of another runs the risk of copyright infringement. The risk may be low now depending on the amount and benefit of the use.

Ned T. Himmelrich
410-576-4171 nhimmelrich@gfrlaw.com

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