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Fair Use, Trash Talk, and the DMCA

Over the weekend, I answered a LinkedIn question [no longer available there because LinkedIn ended its Q&A feature] about whether posting a copyrighted photo of another company’s product with disparaging comments about that product might be protected by the “fair use” defense to copyright infringement. I am reproducing the question and answer, in edited form, below.

Q. My website is copyrighted and the newest product is trademark and patent pending. The image was “clipped/copied” by an individual and placed on a website without my permission to do so. Am I right that this is not “fair use” of my work?

A. The “Fair Use” Defense: One Term, Two Different Meanings discusses the four elements of copyright fair use. The analysis always is highly fact-specific, so it is difficult to say whether use on qualifies for that defense, but I think there is a reasonable argument that it does.

That said, I suspect that your most effective approach may be to ask, rather than the person who posted your photo, to take it down. You can make two arguments.

First, you can point out that posting the photo violated the User Submissions and Content License section of the User Agreement, because the user posted your copyrighted photo without your permission.

Second, you can point out that, itself, also is liable because it has failed to comply with that safe-harbor provisions of the Digital Millennium Copyright Act.

I suspect that if you take the foregoing steps, you will get people’s attention. Of course, if you do, you need to be prepared for possible undesirable consequences: You may increase the amount of negative conversation about your company and product, making the situation even worse. Only you can be the ultimate judge of what makes the most business sense under these circumstances.

Take-away: Whatever your legal rights, think about whether exercising them is the right move from the business perspective.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.