The U.S. District Court in Nevada ruled in Righthaven LLC v. Realty One Group, Inc., 96 U.S.P.Q. 2d 1516, Case No. 2:10-cv-1036 (D. Nev. Oct 19, 2010)(available here) that a Realtor, operating an internet blog at www.michaeljnelson.featuredblog.com, who copied the first eight sentences of a thirty sentence news article from the Las Vegas Review Journal (“Review Journal”), www.lvrj.com, DID NOT violate the Copyright Act because, in the trial court’s opinion, the use of 8 sentences out of 30 was fair use. See the Copyright Act at 17 U.S.C. § 101, http://www.copyright.gov/title17, and the Fair Use provisions at 17 U.S.C. § 107.
The Realtor’s article contained both factual information about a new federal housing program and some commentary from the Review Journal on the possible effects the program could have on the Las Vegas housing market. Plaintiff Righthaven obtained an assignment of the copyright from the Review Journal, then sued the Realtor. Judge Hicks of the U.S. District Court of Nevada dismissed the complaint ruling that Realtor’s use of 8 of 30 sentences was fair use and not actionable under the Copyright Act.
To apply the Fair Use provisions of the Copyright Act, a court reviews a list of factors, none of which are determinative. The Act provides:
Notwithstanding the provisions of sections 106 and 106A [17 U.S.C. sec. 106, 106A], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
17 U.S.C. § 107.
In dismissing Righthaven’s complaint, the Judge assumed all facts alleged by Righthaven were true but found that: (a) the purpose and character of Nelson’s blog was both commercial and educational in nature and this weighed against fair use of Righthaven’s work (the blog was free but promoted the realtor’s business); (b) nature of the work was split between factual news reporting and reporter commentary and this favored the fair use claim; (c) the copying of 8 sentences of 30 supported the fair use claim; (d) the use of the copyrighted material was likely to have little or no effect on the market for Righthaven copyrighted news article. Judge Hicks stated: “Additionally, [Realtor] Nelson directed readers of his blog to the full text of the [Righthaven] Work.”
The court dismissed Righthaven’s complaint ruling that the copying was fair use under the Copyright Act. Righthaven appealed this decision to the 9th Circuit in March. Righthaven LLC v. Realty One Group, Inc., Case no. 11-15714 (9th Cir., filed March 24, 2011). If the Appeals Court confirms Judge Hick’s decision, authors creating blogs may cite this case and seek an early dismissal of copyright infringement actions when small samples of another author’s work are copied. However, the commercial factors (a) and (d) and the hyperlink to the other author’s work are important factors in supporting a claim of fair use. The Court’s decision may have been different if (i) Realtor sold subscriptions to his blog and/or (ii) Realtor had not provided a hyperlink to Righthaven’s original work.