Some interesting tidbits from the seminar –

Can you have a copyright in a tweet? In theory, yes. While Twitter requires tweets to be 140 characters or less, there is no reason why a tweet can’t possess the minimal “modicum” of creativity needed to be copyrightable. After all, short poems and haikus are copyrightable. However, “I’m sitting on the couch” probably doesn’t qualify.

Does a copyright owner have an obligation to consider fair use before sending a Digital Millennium Copyright Act take-down notice? Yes, at least according to the federal district court in the famous “dancing baby case” of Lenz v. Universal Music Corp., 572 F.Supp.2d 1150 (N.D.Cal. 2008). A mom had posted a 29-second video on YouTube (you can see it here) showing her toddler bopping up and down with a Prince song playing in the background. The sound quality was awful, to put it charitably. However, Universal issued a DMCA take-down notice, YouTube complied, and then angry mom sued Universal for allegedly misrepresenting in its notice that it had a good-faith belief that the use of the material was unauthorized (a statutory requirement under the DMCA) and for a declaratory judgment that her use of the song was non-infringing. Angry mom won. Everyone at the seminar agreed this was pretty obviously a fair use (it’s non-commercial and the record company is not going to lose any royalties from Prince aficionados duping the song off the video rather than downloading it from iTunes or buying the album). So, all you copyright owners, think before you bring out that big DMCA hammer.

Transform, transform, transform. In the era of digital fair use, everything’s about “transformation,” which can often happen in a mashup or otherwise through the use of digital editing tools. The Copyright Act lists four factors to be taken into consideration when evaluating whether or not a use of copyrighted material is a fair use. One of these is the purpose and character of the use, including whether the use is of a commercial nature (fair use is often, although not exclusively, associated with non-commercial uses like education, criticism, news reporting, etc.) When assessing the purpose and character of a use and in which party’s favor this factor weighs, courts consider whether the use is “transformative” of the original material. This is nowhere in the Copyright Act, but it is all the rage in digital fair use cases.

Bottom line: while there is no simple calculus, if the use you are making of copyrighted material is not a traditional fair use, you can help yourself by making sure it significantly transforms the nature and/or purpose of the content somehow (as opposed to simply reproducing it or reproducing it with modifications). So, for example, when Ben Stein used a 15-second clip of John Lennon’s song “Imagine” in his film Expelled to critique the anti-religious message of the song and comment on the concept of a world without religion, the court in Lennon v. Premise Media Corp., 556 F.Supp.2d 310 (S.D.N.Y. 2008) found Messr. Stein’s use highly transformative.

What should you ask for in your widget development contract? SLA’s and source code escrow (if the developer is going to host the widget), insurance (general liability and E&O to establish that your developer is a real business; however, copyright and trademark infringement insurance may be too expensive), ownership of rights in the widget, acceptance criteria, delivery deadlines.

Embedding third-party content on your site. To reduce the risk of copyright infringement liability, stay away from uses that are clearly infringing, stick to official embed channels for videos from major rights-holders like TV networks, stick to the more popular amateur videos, and where appropriate include commentary, criticism and/or analysis, because that helps you a make a “transformative use” argument (see above).

Enjoy the weekend and stay dry.