In a way, it's too bad the local AP thinks the way that they do.

Under my prior post regarding the note I got from Tena Haraldson, the South Dakota bureau chief for the associated press,
Dear PP:

It has come to our attention that you have an AP photo of John Thune posted on your blog, along with text from at least one AP story.

Please be advised that this material is protected by copyright and may not be repurposed. Please take these items down from your site and refrain from posting AP material in the future.

Tena Haraldson
Chief of Bureau
I had a comment from a North Dakota blogger, Dustin Gawrylow, who runs about 4 blogs including North Dakota legislative watch. He wrote that "he too got the e-mail." I'm curious as to if any other area bloggers might have gotten this note which was also copied to the Associated Press' intellectual property guy, George Galt. (If you did, e-mail me here)

As I had written, when I posted the photo from the originating website, there was no indication that it originated from the Associated Press.

Of course, once the objections were raised, I dropped the picture.


But on the other hand, it really begs the question as to the propriety of what political bloggers do in taking a snippet here and there, offering editorial comment, and inviting readers to go back to the source material to make up their own minds.

The thing is, I would never intentionally try to short-shrift the media. Yes, I might bitch about something here or there, but I talk to reporters all the time. I've had them call me for source material or other information, or just to shoot the breeze.

Coming from a political background, while I might not always agree with them, I respect them and what they do. Their writing often drives campaigns or kills them. They have their job, and coming from politics, it's my job to try to push it in the direction I'd like it to go, while the other side does the same. (And the media is there in the middle trying to filter out what's valid from each sides' propaganda.)

When it comes to bloggers and my source citations, I spoke with one newspaper reporter today who indicated that he thought the practice was ok, especially since the reader of one website is sent back to the source material. I think that's critically important, for context as well as credit. At the very least, it's good manners.

At the same time the Associated Press is sending me e-mails such as the above for citing their material and sending people to read it, they're making deals on a national basis encouraging readers to 'share' stuff with them: the AP has made an alliance with the Media Bloggers Assocation (MBA) for blog coverage of the Scooter Libby trial, and a wider deal with citizen media site, NowPublic .
(As noted on Mediashift.) Ironically, the article is titled "AP Warms Up to Blogs, Citizen Media at NowPublic," despite the fact they're turning a cold shoulder to citizen media in the Dakotas.

Just so you can hear my side of it, I think I'm on reasonably stable ground in what I've done to this point. I'll defer to attorney friends on the specifics, but you might have heard me refer to the concept of "Fair Use" before. Basically, Title 17, Section 107 of the U.S. Code, says that using copyrighted works "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement."

There are several tests that you have to meet in the matter, specifically, Section 107. Limitations on exclusive rights:
Notwithstanding the provisions of sections 106 and 106A [setting forth copyright owners' exclusive rights and visual artists' artistic rights], 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 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.
I've tried to keep up on this stuff and at least in most cases, despite what the local Associated Press may believe, I think I've been pretty good about it.

I even did some searching on it today after I saw the e-mail, and for what I could find electronically, the Stanford University Libraries has a wonderful amount of information on the topic. Most applicable is what I found here:

3. Internet Cases

  • Not a fair use. Entire publications of the Church of Scientology were posted on the Internet by several individuals without Church permission. Important factors: Fair use is intended to permit the borrowing of portions of a work, not complete works. (Religious Technology Center v. Lerma, 40 U.S.P.Q. 2d 1569 (E.D. Va. 1996).)
  • Fair use. The Washington Post used three brief quotations from Church of Scientology texts posted on the Internet (see previous case). Important factors: Only a small portion of the work was excerpted and the purpose was for news commentary. ( Religious Technology Center v. Pagliarina, 908 F. Supp 1353 (E.D. Va. 1995).)
Read that and much more here.

And really, the Washington Post example is a terrific example of what I do. When I point out news stories, it's for purposes of commentary. Either direct commentary of my own, or to generate it by citing a few passages. Despite what the South Dakota 'Chief of Bureau' might assert, bloggers' style of commentary is a valid part of editorial opinion that isn't limited to 'letters to the editor' or the local coffee shop. It's electronic, on-line, and here to stay.

As a postscript to all of this; while I didn't do it all that often, I'll probably be citing the Associated Press much less from here on out. Believe it or not, I liked giving those guys the recognition they deserve but don't often get from where I sit on the grassroot level of the political scene.

Anymore? I'll always be forced to consider them differently.


Anonymous said…
Dustin G., the blogger you cite above, was cutting and pasting AP stories wholesale on his site, without attribution or credit. Not "a snippet here or there." That is straight-up theft.

He still hasn't taken down some of the stories. He provides "links," but they're all dead. And the postings imply the stories were generated by some newspapers, instead of AP.

I don't look at your blog and I don't know what you do, but I wouldn't be sympathizing with that kind of behavior if I were you.
Anonymous said…
From regarding fair use of photos:

Question: Can I post a copyrighted image on my website?

Answer: Maybe. In order to determine whether you can post a copyrighted image on your website, a court would apply the four factor fair use analysis.

First, it is important to determine the purpose and character of the use. If the use is commercial in nature, rather than for nonprofit education purposes, it is less likely to be considered a fair use. To determine if it is commercial, a court would consider whether the use was exploitative and for direct profit, or if instead any commercial character was incidental. Also, if the use is transformative and for a different purpose than the original work, it is more likely the first factor will weigh in favor of finding a fair use. For example, in Kelly v. Arriba Soft Corporation, the court found that posting "thumbnail" images on a website was a fair use because such images served a different purpose than the original images.

Second, the court would consider the nature of the copyrighted work. The reproduction of a predominantly factual work is more likely to be considered a fair use than the reproduction of a highly creative one. For example, is the image solely artistic, or is it also factual. See Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).

Third, it is important to consider the amount and substantiality of the portion of the copyrighted image used. This inquiry looks at not only the quantity, but also on the expressive value, of the portion used. If a large amount of the original image is copied, or if the portion copied is substantially significant to the work as a whole, it is less likely the court will find such copying to be a fair use.

Finally, the most important factor in this inquiry is the effect of the use on the potential market for the copyright owner's work. If posting the image on the website leads to a reduction in sales of the copyrighted work or discourages people from accessing the copyright owner's website, a court is more likely to find that the use is not fair and has an adverse impact on the copyright owner's market.

These four factors will be evaluated by a court in a factual inquiry to determine whether the posting of the image would constitute a fair use.
Dustin Gawrylow said…
I just expunged AP content from my blogger sites.

It must be nice to have the time to chase after small time bloggers.
Anonymous said…
PP - You are on the right track with the "fair use" strategy. You can use the information in short snippets to offer commentary and point to the story. The whole idea is that they want people to have to visit the original site to get the full story.
Anonymous said…
You stole the picture. Type all you want, doesn't change the facts.
PP said…
I think whether I "stole" it depends on intent. I thought it was a generic Thune publicity photo that this website was using, as many on the blogosphere are.

It's not like I don't have dozens of the Senator which I've taken with my own camera.
Anonymous said…
Then use one of your own or get permission to use a campaign headshot from the Senator's office. Or maybe ask the AP what it would cost to use their material.
Anonymous said…
"It's not like I don't have dozens of the Senator which I've taken with my own camera."

Then why wouldn't you use those, instead of pilfering someone elses?
PP said…
Again, because I assumed (incorrectly) that it was a photo provided by the Senator in the public domain.
Anonymous said…
This is why bloggers should never be issued press passes, and why blogging (with a few exceptions like hoghouseblog and perhaps this one) will die out within a few years.

Blogging is the online equivalent of those free "newspapers" they put in machines in heavily frequented locations. Or maybe like the kid down the block who puts out his own news flyer. Everybody thinks it's cute for a while, because they know it will only last for a short time.
Anonymous said…
anonymous 6:18

You're an idiot. Blogs are here to stay.
Anonymous said…
Anon 9:09

You're a sucker. She's yanking your chain.
Anonymous said…
im sure tena is taking orders from HQ. She is a pretty decent lady and would hate telling anyone else in the media business, how they should act.

but its unfortunate that AP takes such a short-sighted view.

its not like they are going to hire a new york attorney to actually come out to hughes county and sue pat powers for posting a pic.
There are free sites for photos that typically detail what type of attribution you need to give, if any. These include: (federal government works are typically not covered by copyright unless they have acquired rights from third parties) (sign up with prnews and you can then sign up with newscom and use photos and logos in their database if you attribute as required) (many photographers will let you use their photos as long as you abide by the licensing requirements set forth in the rights they provide)

I make a lot of use of, some use of, and just signed up for for use on my blog.

photos in the public domain (really old photos) are available. Can be a little risky if you don't know the date.

roll the dice with fair use

In my experience in handling copyright cases, both defending them and representing plaintiffs, the work must be of sufficient value to justify a lawsuit OR it was registered so as to have it fall into the statutory damages provisions of the Copyright Act. You won't likely know that until you get sued. Most of the time, the cease and desist letter takes care of the problem.

I could see a major content provider like AP, however, going after some bloggers just to make a point. We've seen that with the recording industry going after students and individuals who downloaded copyrighted music on sites like

Just some thoughts.

Todd Epp
Senior Copyright Editor
S.D. Watch
anon 6 p.m.

I have actually represented a client who was sued by the music industry for downloading music, and yes, they used a big NY law firm. I've talked to others who have had Disney or the MPAA on their case. So, though rare, it does happen.

Todd Epp
Senior Litigation Editor
S.D. Watch

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