This is an update to the question originally answered by Cecil here Can you legally publish a letter someone wrote to you in which he states that you would need the author’s permission to publish a letter they wrote to you.
So, it being 2009, I got to wondering if one could take a post placed on the straight dope and publish it without the original author’s permission, or for that matter, without the SDMB’s permissions. I would automatically presume the answer would be no.
So the second question: Say I have a blog, and someone posts a rather lengthy comment on my blog. Can I publish it without their permission?
And in the same vein: Say I have my own message board and clearly tell people when they join that anything they write on this message board becomes my property. I then publish a book called “The Best of Level3Navigator’s Message Board!” without getting any permission from any of the posters. Is this legal?
Thanks, Canadjun and Rico. And I presumed as much on the first question (regarding the SDMB).
But on to the second part of my posting:
Let’s say I had started a thread on my own message board asking people to share experiences from, say, the Jewish Holocaust, and then published a book containing a bunch of the posts from my message board that various people had placed there (with only minor editing). I give the original posters no credit (or royalties) from my blockbuster. Is this legally okay?
It seems to me, based upon Cecil’s original article, that letter writing and posting on a message board play a close parallel.
To further muddy the waters, what if I took a bunch of emails from various and sundry people and published those (with only minor editing), giving the original authors no credit or royalties. How would that play out?
What, legally, defines the difference between theses two scenarios (message board / email)? Public access? Authorship? In this day and age, these areas seem kind of fuzzy. Can someone enlighten me on copyright law in this regard?
I’ve seen some gripe about Facebook and others doing just that. I think copyright ultimately lies with the board host. In this case, I think they provide their own so there’s no conflict but if ‘your’ board is actually on Yuku or Yahoo or ProBoards then copyright and liability are theirs. That is, they claim the right to close your board if it violates their rules, or they could be prosecuted and the other side of that is that they have rights to material posted on your board as well as you.
It’s going to be very difficult to prosecute me for opening a board for Nazi terrorist pedophiles because there’s no way to track me down (I use an internet cafe to access it) but it’s easy enough to track the host down. It’s an extension of publishing copyright. Some boards forbid cross-posting - which I find objectionable. If I post an opinion on one board I see no difference between rewriting it on another or copying it.
So the host owning the copyright seems a little off center. To make a parallel to a hard copy example, a publishing house serves a similar position as an internet host. A publisher that prints a work, even though it assumes some liability in doing so, doesn’t own the copyright to an author’s work, unless (rarely and foolishly) said author sold them the copyright. Rather, the author retains the copyright and contractually agrees with the publisher that they have the rights to publish the work for a length of time, a number of publications, etc. Once that contract has been fulfilled, the author is free to do whatever else they might like with the work.
Likewise, a paper manufacturer and the pen and pencil company have no claim upon the copyright of a work, regardless of their materials being used in the manufacture of said work.
Has this issue of electronic publishing and retention of copyright come up before in actual legal debate?
I ask this because this exact thing took place on another (almost unheard of) board to which I belong. The owner of the board took many of the postings and published a book wherein a majority of it was those postings of others. Most of the posters were unaware that their words were now making money for the message board owner in book form until some time after the book was published. Was it ethical? Nope, not in my book. Was it legal? That is what I am asking!
It all depends on what the users agree to in the terms of service. Here, we agree that the owner of the message board owns the content we post. If you don’t like the terms, you don’t post.
In the absence of such an agreement, however, the original author would clearly retain copyright over postings he or she makes to a message board. The message board owner only obtains rights to it if they are so granted (either explicitly or implicitly via a terms of service acceptance).
Powers &8^]
I posted a reply to a thread here one time, and Cecil quoted it in an article. They didn’t ask me first. I was not offended. I don’t think anyone should be.
It doesn’t say that. The author holds the copyright and grants Creative Loafing “a nonexclusive irrevocable right to re-use your posting in any manner it or they see fit without notice or compensation to you.” There is no reassignment of copyright.
Sort of related: I wrote an article once about the history of pizza and solicited responses on this and other message boards. I made it clear that I intended to use some of the results in a published article. If I’d just used the search engine for discussions about pizza, that would have been different.
However, the rules they show you when you register claim that: “All postings and other material on the SDMB are copyrighted by CLM.”
This is not a legal transfer of copyright. From US Copyright Law § 204: “A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”
CLM may be in the clear with regards to publishing SDMB posts without permission though. A nonexclusive license only requires the consent/implied consent of the copyright holder.
That would mean CLM can publish a book, The Best of the SDMB and use our posts in it without giving us any recompense.
That would mean I could publish a [del]book[/del] pamphlet The Wit and Wisdom of DesertDog with just my posts in it, but to publish Musings of the Teeming Millions with a bunch of us, I’d have to get clearances from the rest of you.
Ha but often they do! JK Rowling made a special deal over the Harry Potter series to avoid just the position that so many authors have found themselves in with publishing houses selling the film rights over their head and having no say in the resultant travesty. If you want to see what can happen, look at the original 1960s comedy Casino Royale - which I’m sure Ian Fleming never endorsed!
For magazines can be even worse unless there is a regular freelance contract.
IIRC Casino Royale starred young Woody Allen as James Bond. That was the least objectionable part of the movie.
Also - Yes, it depends on terms of service when it comes to chat boards. The more greedy or pushy sites (“aggressive hosts”?) will assume full ownership and leave it to you to challenge them. The more reasonable (Cec?) will simply assume sufficeint license so as to not restrict whatever use they need to make in future, consistent with the purpose of the board.
Then there’s the issue of proving a cetain post is yours, where everyone posts with a pseudonym. If the board has folded or moved hosts and all server records beyond text content are conveniently lost or expired and deleted - try proving authorship unless you did cross-post the content to a board that still retains some means of identifyingyou (IP logs, password constraint, etc.).
Even then, unless the follow-up comments are also cross-posted, how much can you prove is yours? That’s why lawyers charge so much.
I have seen several situations while searching for obscure computer problems and their solutions, where it appears that identical content (including followup replies) is found on a number of web sites. Whether these are sites with common databes of postings, or whether this is blantantly stolen content? Who knows, other that the owners? After all, when you get paid by the visit from internet ads there is an incentive to make you content as braodly interesting as possible.
I know one site (camera site dpreview.com) used to complain several years ago that often their digital camera reviews would be lifted wholesale and copied by other sites. Some did it deliberately, others (!!!) did not see the problem and thought it was OK. Hopefully everyone understands the issue of copyright content today. Hopefully.
So we can add those 3 to the list of people who have played James Bond.
I thought I read somewhere once that Ian Fleming actually tought David Niven was the type of person he had in mind for playing Bond. I don’t think he meant Bond to be quite as physically active as the movies did.
In a work of non-fiction, say a memoir type of book, one often re-creates conversations that the writer has had with other people. Suppose a writer recreates a message board conversation, uses pseudonyms for the posters, and also doesn’t use the exact name of the message board site itself. And of course, the book contains a disclaimer that “names have been changed to protect privacy” yada yada.
There are so many “ifs” here that’s it’s hard to give a good answer.
First, conversations are not copyrightable. Copyright is fixed expression. Only once you put it down in writing or record it on media do the words, sounds, or images enter into copyright. So you can recreate any conversation with impunity.
In addition, conversation is a poor analogy to message board writing. Conversation is spontaneous. Some messages are obviously the process of words to fingers on keyboard without a brain involved but others are composed and thought through and revised, as this message is. This is more like a piece of text from a book than a spoken utterance.
But the real stumbling block to an answer is that there’s no way of telling what you think “recreates” means. How would you recreate this post of mine? If you completely rewrite it, not using any of my words, then of course you can claim it as something new. If you merely excerpt it, then the amount that you excerpt becomes subject to the fair use exemption, which is in court “I know it when I see it” without any rules or guidelines. If you do some sort of mixture of excerpting and rewriting, then again you fall into a gray area.
And that’s just for one post. If you try to reproduce a whole thread, then the more you take from the original the higher the bar goes for you to claim originality. The Harry Potter encyclopedia website case fell on this issue. Rowling claimed that the website took so many original pieces of her work that it became infringement and the court sided with her.
Somewhere between a small sample rewritten recreation and a direct copying of a thread is a line, well, not a line but a thick gray bar. Somewhere in that thick bar is the point past which you’re headed for trouble. Nobody can predict where that is in advance and only a court can say so after the fact.