A Nevada federal court has considered copyright infringement allegations brought against a real estate professional over the posting of a newspaper article in his real estate blog.
Michael Nelson (“Nelson”) is a real estate licensee who authors a blog on home ownership in his market area, Las Vegas. In May 2010, he excerpted 8 sentences from a 30 sentence article from an article authored by the Las Vegas Review Journal (“Newspaper”). The title of the article was “Program may level housing sale odds”, and Nelson provided a link to the full article in his blog.
Shortly thereafter, Righthaven LLC (“Righthaven”) obtained the rights to the work from the Newspaper. Righthaven filed a lawsuit against Nelson alleging copyright infringement. Nelson filed a motion to dismiss the lawsuit, arguing that his conduct was protected by the Fair Use doctrine.
The United States District Court for the District of Nevada dismissed the lawsuit, ruling that the Fair Use doctrine protected Nelson’s activities. Copyright law provides that “the fair use of a copyrighted work…for purposes such as criticism, comment, [or] news reporting…is not an infringement of a copyright.” To determine whether an alleged infringement is covered by the Fair Use doctrine, courts consider: the purpose and character of the use, including whether the use was for commercial or an educational purpose; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and effect of the use on the potential market for the copyrighted work.
First, the court examined the purpose and character of Nelson’s use of the work. The stated purpose of Nelson’s blog was to educate consumers on current developments in the local residential home ownership market, so he did have an educational purpose in his use of the work. However, the blog also served a commercial purpose of trying to generate business for his brokerage business. Therefore, the court determined Nelson’s use of the work was both commercial and educational.
Next, the court looked at the nature of the work. The article contained factual information about a federal housing program and also the reporter’s commentary about the program. Nelson only used the factual information in his blog, supporting his fair use argument.
Looking at the amount of the work used by Nelson, the court determined that Nelson only used the first 8 sentences of a 30 sentence article. The court determined that his selective excerpting of the work also weighed in favor of Nelson’s fair use, as he only used the necessary amount of the copyrighted work.
Finally, the court ruled that Nelson’s use of the work would have little to no effect on the market for the copyrighted news article. Nelson did not include the author’s commentary on the federal housing program and so did not dilute the market for the copyrighted work. Additionally, Nelson directed readers to the full text of the work.
Looking at all of the factors, the court determined that Nelson’s conduct fell within the Fair Use doctrine. Therefore, the court ruled that Nelson could not be liable for copyright infringement and so dismissed Righthaven’s lawsuit.
Righthaven LLC v. Realty One Group, Inc., No. 2:10-cv-1036-LRH-PAL, 2010 WL 4115413 (D. Nev. Oct. 19, 2010). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].