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D'oh!

Have you seen this letter sent to local blogger Random Pixels by GT attorney Ian Ballon on behalf of his client the Miami Herald?

I guess the Herald is upset over whether or not photos from their website are reproduced on blogs in thumbnail or "full-size"?

As if that determines whether or not the photos fall within the protections of the fair use doctrine?

Here is Ian's contention:

"Because fair use looks to the amount and substantiality of the portion taken (both in terms of quality and quantity), reproducing entire articles, large excerpts of articles or large-size photos is not permitted."

This sweeping generalization -- with no context and zero case citation -- is almost certainly wrong.

This is one of those examples where, as a lawyer, you have to talk to your client. Is it in your best interests to go after some local blogger for posting a picture? Is that really what you want your resources and attention focused on? Even if you had a colorable argument, is it a fight that is in your best interests to pursue?

(Though I appreciate that Ian's letter is somewhat restrained and not as dickwaddy as it could have been, I still would have advised against it).

My advice here would be, for the most part, to ignore Ian's letter. If there are "copies of entire articles" on his blog (which I understand are simply historical in nature and not lifted from the Herald online archives), I would edit them slightly so you are in compliance with Ian's demand.

The balance of the letter is wishy-washy and doesn't really require any further action, so I wouldn't take any.

Ian, I just gotta know something -- did Glenn Garvin put you up to this?

Full post as published by South Florida Lawyers on August 21, 2009 (boomark / email).