apartment therapy changing the world, one room at a time

Without much information to go on, it's difficult to really know what to say: but linking to an article isn't "lifting" it (I thought we solved the deep linking "problem" sometime in the last century...). Though, as you say, the photos may be an issue.

*sigh*

When you figure out what she's belly-aching about, let us know so we can either laugh at her and the TIMES mercilessly, or figure out a way to address the issue.

PS... Great site! Shame this is my first comment...

You've been BoingBoinged.

http://www.boingboing.net/2004/06/11/new_york_times_gets_.html

I don't see what the fact that you have three jobs has to do with anything.

I don't see how Pete's comment^^^ has anything to do with anything.

If it wasn't for links from your site I would never read that shitty-ass NYT decorating section at all.

Blogging has an etiquette, which is based in some part on copyright law (which in turn is based on a morality of respect for artists). I'd sum up the etiquette of blogging thus:

1) Excerpts (also called quotes) are okay as long as they are not more than 25% of the total piece. That's just a quick thumb rule though -- blogging a Salon piece (which generally run 160,000 words) should be limited to a paragraph or two. Which is really all they should have written in the first place.

2) Linkbacks are required. It's web LOG after all.

3) If you get the story from a 3rd party, reference that site with a "submitted by..." or "via..." or "stolen from..."

4) Never ever steal original pictures. Pictures are what drive most traffic, and when you steal someone's picture you ARE violating copyright law, but you are also stealing their traffic. You can copy a PR photo from the mfr, or you can find your own pic to go with the article. But if you're copying an original pic you need to ask permission first. It's polite, and it's legally required, even if you're just thumbnailing. If you absolutely can't find a pic or can't get permission, write 1000 words instead.

To sum up, Blogging is not synonymous with copyright infringement, but when you take someone else's pics and excerpt the bulk of someone's article, you are making people think that it is. I think that it's great that Ms. Rohrlich actaully called you herself to tell you of what she felt was you stepping over the line. You should take it as a warning, remove the offending pics, and think carefully about how you blog in the future.

Elvis would sing, but I don't know if that will work for you. He would also get his overpaid legal staff to provide some uncomfortable ramifications for the Times' lawyers. Sort of like a hockey game with lawyers. Maybe you could offer to work it out with Ms Rohrlich in the ring?

I don't know how you "post" the pictures, but if you are displaying the pictures via a link to the original site, with attribution (as opposed to, say, grabbing a copy of the pic, hosting it on your own server and displaying it) you are not violating copyright. First, you're well within the bounds of fair use in the context, and second, you haven't copied anything - the copy still exists where it always was: on their servers.

But all in all, it's just plain rude (not to mention dumb) for NYT to claim copyright violation, since you are increasing their reputation by your references. C&D orders only serve to give more publicity to the alleged violator.

Not true -- displaying a picture on your page, whether it's on your server or not, is a copyright violation assuming that you're displaying a picture without the permission (explicit or implied) of the copyright holder. "Fair use" does not entitle a blogger to copy anything they want as long as they attribute it. If this were the case I'd just set up a mirror site of this site (with attribution of course) and charge my own advertising rates.

I like to sidestep the issue of photos-as-infingement by always posting excerpts of the photos I use. If it works for text content, it seems reasonable to work for photos.

I gotta nickle that says Marianne has just never heard of blogs, though, and once she actually gets around to talking to NYT legal (which she surely hasn't done by now, because they never would have let her contact the Apartment Therapy writers herself!), they'll talk her down off the ledge. (and giggle when she leaves the room)

Will, you neglected to attribute or provide a link to the MLA Blogging Guide you're apparently quoting from so liberally. The use and reuse of images in these contexts is nowhere near as set-in-stone as you'd like.

When I'd include someone else's image on my weblog, I used to call up the images from their original location and include a credit both in a caption and in the alt tag. Even though it's annoying to my inner server administrator, it soothed my storing, caching conscience.

Nowadays, I'm less concerned about where I pull an image from, but I remain assiduous about crediting its source.

Just picking an article at random, House and Home Roundup: June 10, and comparing it to the New York Times slideshow referenced, it does appear that you are producing at least a digest, but more like a single-source derivative work containing almost all the original content. In either case, permission is required.

Effectively, if I read your page, I don't need to go to the New York Times site and read theirs, because I've already absorbed all the content (their content). If you do this on a regular basis, it won't take long for your readers to realize they don't need to go to the original source. I can understand the Times being bitter about that.

It's not enough to cite a source and paraphrase. Among other requirements, fair use requires you to add substantially to the original material in terms of expression or meaning. Stanford University provides an excellent copyright resource (http://fairuse.stanford.edu/). Here's what they have to say about fair use:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html

Lawdy!

You sure have gotten yourself in a mess here people! I say you do what that smart feller Will says in his post. Either that or suffer the wrath of the Gray Lady, evil mothers that they are.

Imma go make me a penut butter banana sammich now.

Thangiu, thangiu very much.

G.

My feeling is that there are different levels of copyright infringement. For example, often corporate white papers are often freely available provided that the distribution is limited, and for educational purposes. I'm not sure how the courts would interpret this situation, however, I think there is a question of gain. You copyright violation seems hardly egregious since the intent was for informative purposes of your limited audience. Since you don't have walls in which you can confine, and therefore define, your audience, you have some difficulty proving the limitations of your audience. But it is a matter of intent. And you were not seeking any pecuniary gain, so I hardly find a reason to "get legal." Anyway, it's a case you would win.

Heh. Let the obsessive deep investigation of Ms. Rohrlich's past work, academic and professional, begin.

As an attorney, let me add just two points. First, copyright violations involve either passing someone else's work off as your own, or doing something that reduces the author's ability to exploit his/her work(i.e. sell copies). In the case where only a small, representative excerpt is used and it is attributed to the author, there is no violation. There is no attempt to plagarize; nor is there any attempt to make money off of the author's work; nor is the author losing money from the small amount being put in the blog.

Second, there is something called "fair use." This is what allows the reviewer or blogger to cite to a copyrighted work without it being a violation. A blogger excerpting a couple paragraphs is no different than a book reviewer setting out a paragraph in a review for the reader to get a flavor of the writing.

So, there is no violation and this "threat" to sic the lawyers on the blog is merely an empty threat. It is stupid.

Contine to plow forth all you bloggers!

If all lawyers agreed to begin with, everyone would know the outcome of a lawsuit and the whole thing could be avoided. But reasonable lawyers can disagree, which is why we have expensive lawsuits and lawyers in the first place. Simply declaring "I am a lawyer" doesn't make your opinion definitive.

But Brian is generally right in terms of excerpting text, though I disagree with the "couple of paragraphs" rule. When an article is only a couple of paragraphs to begin with, the rule doesn't stand which is why I recommended not more than 25%. Less is better, actually.

Pictures, as discussed above, are a different beast entirely. The caselaw covering pictures indicate that the rules about using pictures are far less flexible than excerpting or quoting text. That's why I say that the lawsuit threat does have teeth, and ought to be heeded.

Law aside, there is a matter of ethics and decorum that would suggest that you might carefully reconsider your format.

That call must've been like finding out simultaneously that both Santa Claus AND Jesus Christ himself aren't real. Modern copyright law and its enforcement are a damn shame.

I am new to the entire blogging experience (maybe I am a vet and just don't realize yet).

I have been doing this for a couple months and at first "borrowed" pics. I feel compelled to go back and remove them. I would love to take my own or I will start getting permission to post going forward.

Great article will check out the rest of the digs.

Keeme

Anyone have Marianne's email address? Didn't see it on the Times' site.... be nice to drop here a friendly note.

We have been dealing with this. You need to read these three posts:

Fair Use for photos on the web and in blogs: a modest proposal to avoid a major battle.
http://calacanis.weblogsinc.com/entry/8042716626204694/

Blogs, Photo and Copyright: Winning the battle, but let’s not lose the war. (or the “Good enough for Google” rule.
http://calacanis.weblogsinc.com/entry/3619596627327039/

and this one:
http://www.corante.com/copyfight/archives/004215.html

welcome to the big boys! congrats on gettting sued by a print journal. it seems to be a right of passage.

ugh - perhaps you should stop bowing down in front of the times, then...

Richard, I entirely agree. We have taken down that post and will be more careful in that respect. With our writing and public photos AND a link to the times, we can still do what we do best without copyright infringement (but they may still be irritated). Maxwell

"People are reading about them through us."

The way I see it, bandwidth costs money.
By posting NY Times content to your own website, you are saving the NY Times bandwidth -- that's a financial gift. You are paying their bills.
Their claim is that you stole their content. Ok, but you also linked to them, and referenced them, and made it clear that it was their content.
AND (this is the big one) the content on their site is free (as long as it's fresh), so they didn't lose revenue from people viewing it on your site (except maybe potential banner-ad revenue).
The most you'll possibly owe is the income per banner view ($0.30?) multiplied by the number of people who read *your* version of their article. What's that, a thousand people? So, maximum, you owe $300 in damages. They may claim the copyright stuff, too, but the thing is the put their materials in a public space where it's freely copyable, AND the key point is that you copying it digitally does not in any way take away from their original copy. I hope these points help you out in your impending battle.

Sincerely,

Derek
People are able

As an ameteur design geek who is also quite busy and perhaps not-so-well connected, design bloggers have my undying gratitude. I don't have the time or money to seek out niche publications or even design sections of general publications. That's why your story about the angry call from Ms. Rohrlich upsets me -- design blogs fit my specific information gathering needs and without Apartment Therapy I wouldn't be aware of the hard work of which she is so justly proud.

I wouldn't worry about this, your photos were small (like the way Google does it) and you didn't reprint the entire set. Sounds like fair use to me.

We should all drop the author a note: rohrlich@nytimes.com.

Funny thing... This is where I found her email address at:

http://www.thesilverfund.com/company/media/2001-12-27_nyt3.jpg

Now THAT is infringement, unlike your fair use. Someone should send her to a course on copyright law.

I'm not a lawyer, but for some reason I seem to know that copyright law is pretty clear about the creation of "derivative works". To summarize: they're not fair use. Posting thumbnails or samples of graphical work for which you don't hold the copyright could put you in a bad position, litigation wise.

Copyright law seems to have a giant hair up its collective ass. Example: taking a picture that includes part of a copyrighted work and posting it to your web site could put you in legal jeopardy.

As far as intent and distribution, none of the statutes seem to say that just a little bit of distribution is okay, while a whole bunch of distribution isn't okay. Posting copyrighted work to a public web site without the permission of the copyright holder is a violation of the copyright. Distribution of a copyrighted work tends to mitigate claims of fair use.

It's very easy to violate the civil copyright laws. On the other hand, in order for you to suffer a civil penalty, the copyright holder has to discover the infringement and bring a civil suit against you, which is a lot of effort.

But, BUT, if an institution large enough to have a “legal department” pulls your card about a copyright infringement, you might want to consider making the problem go away as painlessly as possible, because even if you're 100% in the right, the cost of litigation can be crippling.

I thought I might go on to discuss citing copyrighted works for criticism purposes but quite frankly I'm beginning to bore even myself.

Will said: "Excerpts (also called quotes) are okay as long as they are not more than 25% of the total piece".

What drivel is this? Did you pull this out of the air? There is no hard-line percentage/ratio of quoted versus original material when it comes to Fair Use. One writer can use 85% of something and not have a problem; another can be accused of infringement for 5%.

Don't go spouting inaccurate figures. That only spreads disinformation and confusion, exacerbating the problem rather than ameliorating it.

Jason: It's not a derivative work. More information on Fair Use and blogs: http://www.iampariah.com/blog/archives/000391.html

"But, BUT, if an institution large enough to have a “legal department” pulls your card about a copyright infringement, you might want to consider making the problem go away as painlessly as possible, because even if you're 100% in the right, the cost of litigation can be crippling."

Yeah... If you get a cease and desist letter, you would probably be wise to follow it. Until that point...? Most districts require a complaintant to give you a reasonable opportunity to cure the violation prior to filing suit.

One important point I'd like to make is this: A reporter called you, not the legal department. Reporters don't speak for their employers.

You see fellers, I once had this song called Tutti Frutti. And some dude Pennyman, went under the moniker Little something or other accuse dme of stealing his tune.

Yes sireee, copyrights and all that jazz brother. Sometimes you just gotta keep cool, curl your lip and say - that's alright mamma.

A bit off topic, but damn that Reagan is one well travelled corpse.

G.

I'm also a lawyer, and I agree with Brian. The quoting is fair use, the picture issue is more fuzzy, but I don't think it's that big of a deal. The offending item was taken down after the complaint. A legal department has better things to do than to sue a blogger that has already cooperated. There's no reason for the Times legal department to contact you now except for a "don't ever do that again."

I'm glad that there's design blogs such as this one so I don't have to scour the web myself. I often visit the referenced article or site. I think Ms. Rohrlich has been in her ivory tower a little too long.

Actually, that article echos my point (even more eloquently than I could have written):

"Copyright law makes little distinction between a representative piece of a copyrighted work and the whole; if the piece is enough to represent the whole, if the piece is itself comprised of original material, then it enjoys the same protection as the whole."

Bad news on getting threatened. In dealing with this problem, you absolutely have to ignore most of the "legal advice" above, since it's totally bogus. I am a copyright lawyer and I'm being completely straight when I say that you are almost certainly liable for copyright infringement. Of course you shouldn't be, but you are. And even if you have the best fair use defense in the world--which you don't--you don't want to get into a lawsuit over this. You'll regret it. If they push it, make an apology, promise not to do it again, make it go away. And in future follow the approach Calacanis advocates and you'll be less likely to land here again.

The best thing you can do is ignore all the made-up legal advice from the non-attorneys chiming in here. :-) At best, they might stumble onto something accurate, at worst, they can end up costing you a lot of money with their naivete. Worst of all, you won't know which is which.

Cheers.

Just tell the bitch to STFU

Like my local newspaper, I see NYT has a subscriber agreement that starts at the copyright (click at the bottom of the page and follow the links) and takes tyrannical control of its content.

If you are perceived as diverting even just one set of eyes from their pop-ups and banner adds, my guess is you'll be hearing from one of their already paid for lawyers.

[Un]fortunately, blogging is diametrically opposed on many levels to this part of the publishing business.

Pariah: I said 25% just as a rule of thumb IN THIS CONTEXT. If you'd read my post more carefully, you see that I was referring to blogging on other site's news articles. And I think that's a good MAXIMUM limit to keep in mind for articles on the web. Once again: if you are quoting a 300 word piece, a 50-75 word excerpt seems reasonable to me. If you're quoting an 800 word piece, 200 seems about right as a maximum. But if you're quoting a 4000 word piece, an excerpt of 1000 words seems too long to be fair use, and I'd drop some. But if you're quoting a book (providing an excerpt for readers to get the flavor of the book) 1000 words is not unreasonable. In any case I can think of, 85% would never be fair use though, so watch your hyperbole.

So did their lawyers ever give you a call as she promised?

I'm curious as to why all the lawyers feel compelled to say "I'm a lawyer, and here's my authoritative legal advice." This behavior seems like it carries the risk of Bar Association complaints (e.g. "Licensed attorney Joe Schmoe gave me specific legal advice which turned out to be bad information" or "Joe Schmoe isn't licensed in New York but is giving specific legal advice to citizens of New York.").

Doctors don't do anything without writing M.D. after it, and lawyers don't do anything without prefacing it with "As a lawyer..."

It's a matter of professional hubris, regardless if the lawyer in question knows anything about the subject at hand (which it appears above lawyers do not).

As a lawyer... Oops, old habits die hard.

At the risk of going off-topic, Jason's and Luke's points are well-taken, but a bit mis-guided. The comments made on this blog -- by lawyers and non-lawyers alike -- are not meant to be legal advice, but are just quick opinions. Lawyers will often come to different conclusions when trying to apply specific facts to law. The point is that these are just free, unsolicited viewpoints. To the extent that the people running this blog need legal advice, they would be naive to rely on any of the opinions stated here. Free legal advice is worth the money you've paid for it. There's no reason to bash lawyers and doctors for their perceived hubris. Everyone is just trying to help and discuss the issue.

Blog on!

Will's post on etiquette was very useful. We should have more discussions like this over values and etiquette. Thanks.

Will made several incorrect claims, however.

Most importantly, permission is not required for posting thumbnails. Use of thumbnails is fair use, according to a federal appeals court in Kelly v. Arriba.

There is no percentage of an article that automatically violates either fair use or any commonly held ethical standards of blogging or web publication.

However, copyright is not based on morality or respect for artists. That's one of the great myths of copyright. It's to create an economic incentive to produce and distribute creative works.

Besides, the Times is not an artist. Most works are controlled by corporations, not artists.

Ethics and etiquette should be discussed without bluring the legal issues, which are rarely useful anyway. No one is going to sue anyone over this crap. A cease-and-desist letter is hot air.

Siva Vaidhyanathan
Department of Culture and Communication
New York University
Weblog: http://sivacracy.net

Author of Copyrights and Copywrongs (New York University Press, 2001) and The Anarchist in the Library (Basic Books, 2004)

For someone who has written a book about this topic, you don't seem to have done much thinking about it.

1) Respect for artists is the foundation of copyright law. It is the expression of a community's desire to value and protect artistic works so that more will be created and artists will have an opportunity to make a living with their exclusive rights. Incentive is the effect, not the cause, however. The cause is the ethic of respect for the artist.

2) The Times is not an artist per se, but the Times is a collective of artists -- a benefactor of artists. To imply that one should not have respect for the copyrights of corporation denegrates the artists who chose to be supported in their work by that corporation, and attacks the very foundation and morality of copyrights for artists.

3) Law is an expression of ethics, and any discussion of this nature should include a discussion of law and ethics. To discuss one without the other is to miss the point entirely -- we must constantly examine our own actions under the law, and examine the law under the scrutiny of ethics. It is not a blurring, but a sharpening of observation to examine both.

4) People do sue over "this crap" all the time. That's how we got Kelly v. Arriba (thanks for pointing that out BTW). It should be noted before anyone takes your word that "use of thumbnails is fair use" that Kelly establishes a precedent for use of aesthetic photos copied in a search engine, and does not touch on the use of news photos reprinted by a blog. The court does say, though, that reproducing a news image into a different format does not change the fact that it is being used "to inform the public" which suggests that the test might be different in such case. Kelly also fails to establish specific guidelines as to the size or reduction in quality of the photo either, leaving open the question of what exactly a thumbnail is except to say that when it's an aesthetic photo, a substantial reduction ("much lower") in both size and image quality will allow fair use by a search engine.

NB: I'll say this only once more, the 25% was never intended to be a reflection of any code or caselaw. It's a general rule of thumb that I think is reasonable under my own blogging ethic. Sometimes 25% might be too much, sometimes too little, but it's only intended to be a guideline. And because I'm not saying "As a lawyer..." (or "I wrote a book...") before I state everything, it is also up for discussion. But for those who disagree with that rule, I suggest offering a replacement for the rule -- disagreeing alone is not discussion.

I agree with a couple of the comments above in that, if the NYT were considering legal action against you, the LEGAL DEPARTMENT would have called you, not some lying, story-fabricating (that's what they do over at the NYT, right?) hack. She probably talked to the legal department and they told her to p*ss off, which made her so mad she decided to take matters into her own hands.

How do you guys get all these smart, articulate people to stop by AND leave several comments? I have a hard time getting even my friends to visit...
All the best and good luck,
Gilly.

I'm not a lawyer, but I'm a (wait for it!)... media professional. Actually, all that means is during the day I deal with purchasing photography for use in promotional materials. I don't know the case law details regarding Kelly v. Arriba, but I do know what the AIGA recommends, and what folks like Getty do, and I will say this: if you do not have explicit rights to a photograph, do not use it. Sure, it's a pain to have to pay someone for for the work they do, but that's why God made interns and royalty-free CDs. Now, before y'all get all hooey about the 'spirit' of blogging (to say nothing of college coffee shop discussions on 'fair use'), take a look at the disclaimer of ur-photo blogger Slower.net: Image Copyright © 2004 Eliot Shepard. Do not reproduce without permission (Emphasis added).

Your comments strip HTML tags, which explains the incongrous parenthetical.

I'm *also* an lawyer, with a fair amount of experience in IP. Most of what I would have said has been covered thoroughly.

I feel it necessary to add, however, that as one who has written any number of "big foot" letters (You are infringing our copyright, and we will stomp you), the fact of the matter is that about 7 times out of 10 those letters are deadly serious and backed up by a real intent and ability to sue.

You, individually, might be so small-time as to make it seem financially imprudent for the NYT to come after you. But the NYT, as a repeat player in this scenario, needs to discourage the vast hordes of other small-time operators.

This is *especially* true if you get a letter mentioning trademark (as opposed to copyright) violation, because of the obligation on a mark-holder to be vigilant.

But I also have to agree that a call from the author (who's almost certainly got no rights in the work to protect anyway, since she's (a) probably done it as a work-for-hire and (b) probably got a well written contract with NYT on the subject) is not in the same category as an actual big-foot letter from actual lawyers.

I want to chime in, as well, w/r/t the Siva/Will disagreement re "respect for artists." The difficulty arises from different understandings of the phrase. Siva's right in that there's nothing underlying copyright law that reflects the common idea of "respect" for an artist qua artist. Will's right, however, that the law is premised on an idea that allowing an artist to profit from his art (actually, the Constitution limits it too the _useful_ arts) will allow the society to benefit from the proliferation of that art.

--FD

Who'da thunk I'd get to use "qua" when I wasn't at work!?

--FD

Dear Frum Dad,

Thanks for your comment, and don't believe that we aren't taking this seriously. Nor do we want to actually break the law or infringe on anyone's rights.

The question now comes down to photo sizes that are legitimate to use in a blog or on the web. We believe that 150x150 or thumbnail size (as per Google) is beneath copyright, but The Times lawyers called us again today that is not the case and yet another post must come down or be paid for.....

What do you know about this?

Sorry there is such a flood of us, but I am yet another lawyer. I understand the value (either legal or ethical) on the appropriate use of thumbnails (size, etc.) but I think the issue that is being ignored in the original problem of the NYT photos is the fact that they were included in a press package. Wouldn't that imply a license to use them in connection to the promotion of the original NYT materials (which seems to be the case)?

Also, I understand miss representation's advice concerning the use of photos in promotional materials but the nature of commercial reproduction is very different from the more semi-news like dynamic of blogging. I mean, consider if everyone had to have exclusive rights all the time? The NYT could certainly not survive in that environment.

Don't forget that the freelancers were striking the Times so that they could obtain financial rewards from photos submitted which were printed by the Times....this may be one of the issues. Just a thought.

Read closely, Mr. Bryant. Press kit from the store is not a press kit from the New York Times. I think the way you were reading the facts, you were thinking that it was the New York Times that had somehow put out a press packet. That's not the case. The New York Times put out a paper (and a web version) the purpose of which is reporting news. The press packets referred to were the photos that were presumed from press kits that appeared in the New York Times. Those pictures are safe to assume may be reprinted by AT, but not those that were taken by New York Times photographers.

No really... What do you mean by it?

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queenge on the jalabshce

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you guys know how i feel about marianne. man does this confirm everything i've ever heard about her.

can't the times hire someone fun and new who gets contemporary design and doesn't feature things that debuted in like 99? i think you gotta earn your keep, if you know what i'm saying.

d*s

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I've just started some real therapy with a patient on a blog ( http://coasm.blogspot.com ). Only about a month into it, seems to be working out fine. Would love some visitors to help comment and make the work better.

Regards,
Marion Young