By Scott Sholder

Law360 (April 30, 2020, 6:06 PM EDT) --

Scott Sholder

At a time when we are stuck at home, working (or, sadly for many, not working) the tenet that content is king has never been more relevant.

From Disney+ releasing "Frozen II" and "Onward" early to help placate restless youngsters, to DreamWorks Animation SKG Inc. releasing "Trolls World Tour" for theatrical in-house rental, to Instagram sensation DJ D-Nice offering his "Club Quarantine" and "Homeschool" Instagram parties and Spotify playlists, there is something for everyone on one platform or another.

Musicians are even offering special live-streamed performances from their homes (thank you Dave Grohl, Billy Joe Armstrong, et al.).

While the Disney and DreamWorks releases were clearly authorized corporate decisions, the world of quarantine content becomes murkier when one turns his or her overly scrubbed fingers to the keyboard. Of course, the lead singers of Foo Fighters and Green Day, respectively, likely have the rights to publicly perform music they wrote, and reports indicate that DJ D-Nice made licensing deals to avoid copyright claims stemming from his streaming discotheques.

But in the further corners of social media, the always-gray field of copyright has spawned more than its usual fifty shades in the time of COVID-19.

So, what about musicians performing other artists' songs? Fitness instructors on Instagram Live with their playlists thumping in the background? The Internet Archive[1] offering its own "emergency library" of digital copies of books (a decision decried by the Authors Guild and Association of American Publishers, but claimed to be fair use by archive.org)? Or DJs who, unlike DJ D-Nice, did not have permission to publicly perform or remix the music featured during that Instagram virtual dance party?

At least in the latter case, some DJs and performers streaming on Instagram Live have reported that they've had their streams cut short by copyright infringement claims over use of musical content without authorization. Lesser-known and aspiring artists (who, like many, are out of work at this time) are having their online raves canceled mid-performance.

But at the same time, artists whose content is being used may also be out of work and may be incentivized, perhaps more than usual, to enforce their copyright rights and preserve their dwindling income streams. This presents a sensitive nuance to an already delicate balance between online content usage and rights enforcement.

There is no timelier example of COVID-19-era copyright enforcement than Richard Liebowitz, the infamous plaintiffs lawyer behind more than 2,000 copyright infringement lawsuits filed by photographers over the last four years. His business model — which he characterizes as fighting for photographers' rights, and much of the digital media industry characterizes as trolling — has, like COVID-19, mutated to adapt to its new circumstances.

It was recently reported[2] that, despite quarantine and widespread isolation (or perhaps because of it), Liebowitz's filings have actually increased, with his firm filing 51 lawsuits between mid-March and early April (39% of all copyright infringement lawsuits filed since the World Health Organization declared a global pandemic).[3]

Likewise, pornography studio Strike 3 Holdings LLC is also keeping busy during the pandemic, having filed a more modest 11 new lawsuits since mid-March.[4] The uptick in these types of cases is potentially correlated to the increased use of content during quarantine and the reduced number of opportunities for photographers and other content creators to earn a living. So, what's a pandemic hermit to do?

The short answer: the same thing you'd do in pre-COVID-19 life. Even in these strange times of social distancing and mandatory isolation, the same rules apply even when unauthorized content use is undertaken for seemingly laudable reasons such as alleviating boredom, distracting your kids or entertaining your Instagram followers. For better or for worse, there is no exception in the Copyright Act for what's going on out there, so vigilance in defense as well as enforcement is paramount.

For instance, the test for fair use set out in Section 107 of the Copyright Act of 1976 requires a lot more than benevolence in alleviating boredom or even supplementing one's income during hard times to successfully fend off a claim of infringement.

One of the keys to establishing a viable fair use defense is transformative use — use of existing content that adds new expression, meaning or message to the original underlying work. Simply using the content as intended, even in an unprecedented environment, almost certainly will not be considered transformative. As tempting as it may be to utilize others' content for a seemingly good cause, good intentions do not a fair use make.

Best practices for content usage remain largely unchanged. The first-tier best solution is to use vetted licensed content (ideally pursuant to representations, warranties and indemnification from the licensor) or seek permission, preferably in writing, directly from the copyright owner. There are plenty of options out there for many types of content.

Licensing agencies like Getty Images Inc., Shutterstock Inc., Adobe Inc. and Pond5 are stalwarts for visual content. Many book and journal publishers are now offering resources[5] for newly minted home teachers. Creative Commons licenses and use of public domain material are also viable options, particularly for photographic content, although may be less useful for things like popular music and are not always fool proof.

Music licensing is a unique beast that could fill an entire treatise, but suffice it to say that several licenses may be required depending on the nature of the use, including public performance licenses from performing rights organizations like the American Society Of Composers Authors and Publishers, Broadcast Music Inc., the Society of European Stage Authors and Composers and Global Music Rights LLC, mechanical licenses from music publishers and master use licenses from labels when content is downloadable, and synchronization licenses from publishers and record labels for music that is cued up with accompanying video content.

It's certainly worth noting that some sites, such as Freeplay Music, Audioblocks and Free Music Archive, offer royalty-free and low-cost licensable music without the added worry of the music licensing labyrinth.

Reliance on defenses like fair use should be a last resort, and in such cases, it is always wise to seek advice from an experienced copyright lawyer. And, on the other side of the equation, if you believe your content is being used in a way that violates your copyright rights, platforms like YouTube and Instagram have Digital Millennium Copyright Act takedown forms for removal of infringing content, but recent developments in the law require at least some consideration of whether the user has potential defenses (such as fair use) before submitting a takedown notice.

As we stay vigilant against the virus that is causing so much havoc worldwide, we must also make sure that we stay within the bounds of the law and mitigate our legal risks as we mitigate our health risks. While troubled times such as these call for cooperation, collaboration, forgiveness and flexibility, absent content owners and users working together to reach mutually beneficial arms-length deals, or the creation of a collective effort to allow free use of intellectual property like that of open COVID-19 pledge[6] for health-based patents and technology, the rules remain as they were even if the world outside doesn't.

Correction: The May 1 Law360 newsletter summary for this article incorrectly characterized DJ D-Nice's public performance of music on Instagram. This error has been corrected.

---

Scott J. Sholder is a partner and co-chairs the litigation group at Cowan DeBaets Abrahams & Sheppard LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] "Announcing a National Emergency Library to Provide Digitized Books to Students and the Public," Internet Archive Blogs (Mar. 24, 2020), https://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/

[2] Bill Donahue, "During Pandemic, Prolific Copyright Lawyer Keeps Suing," Law360 (Mar. 27, 2020), https://www.law360.com/ip/articles/1257593/during-pandemic-prolific-copyright-lawyer-keeps-suing?nl_pk=db11a53e-b04f-44a7-96e1-76824544133d&utm_source=newsletter&utm_medium=email&utm_campaign=ip

[3] See id.

[4] See id.

[5] "What Publishers Are Doing to Help During the Coronavirus Pandemic," Association of American Publishers, https://publishers.org/aap-news/covid-19-response/

[6] Open Covid Pledge (Apr. 7, 2020), https://opencovidpledge.org/

For a reprint of this article, please contact reprints@law360.com.