Nana Nwachukwu: Copyright, Plagiarism And Linda Ikeji

Linda Ikeji’s blog is a Gossip news blog that brings stories of current events of almost everything that catches the blog’s fancy. This blog is hosted by Google which has its headquarters in the United States of America. That is to say that the server is located in the United States and as such this makes the blog subject to American copyright laws which I must say are quite numerous.

Plagiarism is the act of copying works that do not belong to you and passing it off as yours. It could be a famed line, a paragraph, or an entire work. Plagiarism deals more with morals, ethics than law.

Copyright on the other hand is the legal protection offered to the original works of an author expressed in a tangible medium. In the words of the Section 104 of the U.S. Copyright Act, see below;

“(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.”

Before I continue, what are the rights conferred by copyright? I will still have recourse to the Section 106 of the U. S. Copyright Law which states as follows;

“Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

In copyright, the issue of ownership is quite different from authorship. I believe this is where the morality of plagiarism comes in. You can plagiarize an author but not an owner except where an author is an owner. An owner of a copyrighted work could be different from the author of the work.

In simpler terms, if I commission you to do a work, it is mine though you retain the authorship. For example, I ask you to do a painting for me, it is completed and handed over to me. It becomes mine and I retain those rights above. However, you retain your rights of authorship which means, I cannot claim to be the painter of the work, I cannot alter the work, I have to tell everyone who asks that it is yours, if I put it up on a website, I must acknowledge you as the painter but as the owner I do not need your permission to do so.

Another scenario is where I invite you for a show or an interview, I own the content of that show including your words and materials used for the show, seminar, and conference except where there is an existing copyright on such materials e.g. an authored book or a painting or a video or audio made separately that was sued in the show or conference. E.g. a TedEx Video of Chimamanda Adichie giving a talk is content that belongs to TedEx. A session by ‘No Holds Barred Interactive’ with an invitee is content that belongs to No Holds Barred Interactive (NHBi)

Now, what are the exclusive rights of an author you may ask?

The rights of an author is what the U.S. Law terms as ‘moral rights’ or the rights of attribution and integrity. These rights are that of being able to claim authorship that is to say having your name associated to that work, also being able to have your name hidden from that work and being able to alter that work. These rights are exclusive to the author at his/her request.

There is often a thin line between plagiarism and Copyright. Plagiarism infringes Copyright but not in all cases while Copyright infringements are not often plagiarism. Plagiarism becomes copyright infringement once it deals with bulk.

Copyright protection for user generated content is still fuzzy that is why people have to with the policies of the ISPs. ISPs in this case are the websites that provide platforms for editable content. For example, YouTube, Google, Twitter, Facebook etc.

Now, when you make posts on the above sites, you have granted ownership rights unwittingly to the ISPs. What the ISPs would prevent is someone infringing on the rights that accrue to both of you. This is to say, no one else asides both of you can distribute, edit, reproduce, display or use such content without permission from either of you.

This also goes to the article you submit to be published by specific blogs, online magazines etc. This is because your rights as an author for a commissioned work, is subject to the rights of an owner. Strange huh? The rule is this in content, the owner is King/Queen.

There is however a caveat to this ownership, authorship and sharing business of copyright. That caveat goes to the limitation of your exercise of your rights on News sites. Section 107 of the U.S. Copyright law grants Fair Use rights for news reporting. In simple terms, if your series of tweets are newsworthy, I can use them to create news citing you as my source. I do not need your permission for that.

Secondly, if I have to use a painting/photograph by you for my news reporting, I do not need your permission except where I am using more than one of your images. Fair Use for news reporting explains this. What I need is to avail you your right of attribution. That is to say to recognize you as the author of the painting/photograph by stating your name and the title of the work.

Fair Use is the legitimate right to infringe on a copyrighted work. I do not have the space to go into the full details.

However, do not go altering a person’s work of art for news reporting. Fair Use does not cover that. Fair use also fails when such works are not in the public domain.

When I fail to attribute the works to you, then I have infringed on your rights. If you request me to remove such works from my News reporting, then I have to do so as that also is a right exclusive to you.

Let me break this gently to you, there is plagiarism of tweets but copyright of tweets? The U.S. Courts do not think so[1] but every case is judged on individual merits. I will explain this further in another post.

Going back to the matter that warranted these explanations; is Linda Ikeji’s blog a news blog? Yes it is.

Has she committed infringements? If she has failed to attribute the newsworthy items and the pictures used in them of course she has. If she has also failed to take down paintings/photographs which are not in the public sphere at the request of an author, of course she has.

You may argue that Linda is a Gossip site. Yes, but the events she reports are factual and actually happened. For example, the use of a tweets to form a news story. Those happened, she reported them for commentary and criticism as the case may be. The Courts have ruled this as Fair Use in a previous case[2]. It would have been a different case if she made use of unpublished works but then Tweets are already published aren’t they?

You may argue that Linda makes money off her blog and as such is a profit-making site, well there has been such an argument in Court before made when a site made use of thumbnail copyrighted pictures owned by different people to provide a service for a fee. That site was Google and the Courts ruled it as Fair Use[3].

Now the thing is this, getting a DMCA take-down to happen isn’t a battle won. You could get sued for acting in bad faith if you did not consider fair use and consult a lawyer before requesting for a take-down. Yes, it happens often. People get sued for requesting DMCA take-downs[4].

Now, I am a great champion of copyright. I believe everything should be protected but before you shake down Linda Ikeji’s blog for infringements, consult a lawyer. Copyright tables turn so fast.

[1] Stern v DOES Anors (2011) USDC Case No. CV 09-01986 < http://www.wassom.com/wp-content/uploads/2011-CD-Cal-Stern-fwding-sentence-from-listserv-fair-use.pdf> accessed 6^th October, 2014

[2] Time Inc. v. Bernard Geis Associates., 293 F. Supp. 130 (S.D.N.Y. 1968) <http://www.law.cornell.edu/copyright/cases/293_FSupp_130.htm > accessed 6^th October, 2014

[3] Perfect 10 v. Amazon.com et al, 487, F.3d 701 (9th Cir 2007)

[4] Lenz v. Universal Music Corp., 572 F. Supp 2d 1150 (N.D. Cal. 2008 < http://scholar.google.com/scholar_case?case=2209471029398314909&hl=en&as_sdt=6,34&as_vis=1> accessed 6^th October, 2014

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Nana Nwachuwkwu writes in from Abuja and she is a Lawyer.

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