Issues arise when one re-publishes material created by others — i.e., another’s intellectual property. Generally, the intellectual property involves copyrights and trademarks/servicemarks. Text, images, and sounds on a web page may be copyrighted. Trademarks and servicemarks which are commercial identifiers for a particular company’s product or service are proprietary to that company. Both copyrighted and trademarked material must be used and referenced appropriately.

Is hyperlinking to another site permissible?

Yes. One can hyperlink to another site and even display the web address (also known as the Uniform Resource Locator ("URL")). See, e.g., Ticketmaster Corp. v., 2003 U.S. Dist. LEXIS 6483 (C.D. Cal. 2003) ("A Uniform Resource Locator (URL) is simply an address, open to the public, like the street address of a building, which, if known, can enable the user to reach the building. There is nothing sufficiently original to make the URL a copyrightable item, especially the way it is used."), aff’d by Ticketmaster Corp. v., 2005 U.S. App. LEXIS 6227 (9th Cir. 2005).

Can I copy relevant portions of a web page?

Yes, short quotations are generally permitted as "fair use" under copyright law. Fair use means that one need not permission from the copyright owner of the material. (In contrast, however, one should obtain permission from the copyright owner if one wants to replicate an entire web page or a substantial portion of it.)

Can I use the facts and ideas from another web page?

Yes. One is free to disseminate facts and ideas gathered from another web page. Copyright only extends to original expression, but not facts and ideas.

Can I use images from another web page?

One can copy images from another web page if it is done for the purpose of comment, criticism, or some other "transformative" (i.e., productive) use. The use of smaller versions of images would point more towards fair use. However, if the use of the images is not necessary, then it is best not to do so.

Can I reference another’s trademark or servicemark?

Yes. Reference the mark so that it is emphasized such as by underlining, italicizing, bolding, capitalizing, and/or putting the mark in quotation marks along with the appropriate SM (for an unregistered servicemark or a state-registered servicemark), TM (for an unregistered trademark or a state-registered trademark), or ® symbol (for a federally registered servicemark or trademark). Use the mark as an adjective followed by the generic name of the products/services associated with the mark. Do not use the mark in a plural or possessive form. Do not use the mark as a verb. See, e.g., Example

Is it permissible to post other’s comments to one’s blog?

In all likelihood, a person who posts a comment to a blog is granting an implied license to publicly display the comment to the blog (unless, of course, that person requests that such a comment not be published).

What is considered "fair use" under copyright law?

"Fair use" is not a litmus test. However, there are four factors that courts generally consider when determining if the challenged use is "fair use":

1) The purpose and character of the use.

  • Transformative uses are favored over mere copying.
    • E.g., comment, criticism, news reporting, etc.
  • Non-commercial use is favored over commercial use.

2) The nature of the copyrighted work.

  • Use of fictional material is favored over non-fictional material (however, please keep in mind that facts and ideas are not copyrightable subject matter — therefore, if one wants to paraphrase, this is not be a copyright violation).
  • Use of published material is much favored over unpublished material.

3) The amount and substantiality of the portion used.

  • Copying large portions or the entire work or the heart of the work (i.e., the most memorable portion of the work) is not favored.
  • Using short quotations/excerpts is favored.

4) The effect on the market or the potential market.

  • If the challenged use substitutes for the market of the original work or if it diminishes the market or potential market of the work, then the use is not favored.

    Lee Kim