Wednesday, January 25, 2012

Can We Require Positive Uses Only?

Dear Rich: We would like to add some "usage" language regarding an electronic (on a flash drive) media kit that will contain artwork, photos and logos. The language would let the media know that they can only use the downloadable items in a "positive, non-defamatory manner." Is there "boiler plate" language that I can use for this purpose? If your goal is to prevent people from using your copyrighted materials for anything other than "positive, non-defamatory" purposes, we think you need to rethink your goals. It's a little bit like a music company telling a  music reviewer she can reproduce an album cover ... but only if the review is favorable. We think situations like this create hurdles of enforceability.
Is it a warning or a contract? When you allow people to reproduce your content, you are granting a license. But in order to create a binding license -- one that permits you to step in and stop unauthorized uses -- you need to prove that you entered into an agreement. As we've mentioned before, the most effective end-user licenses (EULAs) require some type of actual agreement -- typically a click-to-accept checkbox or button. These mechanisms for "agreeing" come in many shades and as a general rule, the easier it is to demonstrate that the other party agreed to the terms and conditions, the easier it will be to enforce the agreement. On the other hand, some licenses -- such as Creative Commons licenses -- require less proof of consent. These are more like warnings that say, we will not sue you for copyright infringement if you do certain things (for example, provide attribution) but we will sue you if you don't.
Defamation and "positive" purposes.  If a user defames you or your company, you don't need a EULA to go after them. Defamation laws permit you to recover damages regardless of the licensing arrangement. Your biggest challenge is to be able to define positive uses. For example, which meaning of 'positive' are you referring to? Certainty, acceptance, and affirmation (as in "positive criticism"), or a use that implies moving forward in a direction of increasing progress? Does the use have to be 100% positive? What if it is 40% positive? Is it a subjective, arbitrary, or objective standard? Unless you can set forth a clear definition of the uses that are acceptably positive, you will have difficulty enforcing this vague contractual condition in court (and the ambiguity may even invalidate the agreement).
Fair use? Finally, always keep in mind that copyright laws permit limited unauthorized uses of copyrighted materials for purposes of commentary or criticism. Whether fair use trumps a license agreement, or whether the license agreement is valid are matters that would need to be decided by the courts. Depending on the size of your distribution network, you may want to prohibit all uses -- with the exception of the right of the user to load and view on the user's computer -- unless approved by you. That would allow you to have total control over reproductions.