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Hi everyone! Excited to be here. You’ve got the whole Wolfe, Rosen, and Hwang legal team here.

Mike is our IP guy. He runs a copyright and trademark practice, but also does all kinds of intermediary liability and media law. He was the founding executive director of the advocacy organization Authors Alliance, and teaches as a fellow at Duke Law.

Tim is an attorney specializing in startup and technology law. Previously, he was at Google, where he was the company's global public policy lead on artificial intelligence, leading outreach to government and civil society on issues surrounding the social impact of the technology.

Lea is our partner with the courtroom experience, from immigration removal defense to personal injury. She’s admitted to practice before the Supreme Court of California, the Executive Office of Immigration Review, and the Central District of California.

Let us know if you have any questions!

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Hello! Thanks so much for sharing your expertise!

I hope this isn't too far from the spirit of this board, but I'm interested in defamation/libel stuff for a number of reasons, especially as related to enforcing community codes-of-conduct in spaces that writers and fans interact in. For reference, this article is about people I know, who were sued for banning someone from their community space for alleged sexual harassment. https://www.thestar.com/news/crime/2015/03/01/poet-sues-peers-for-more-than-300000-for-libel-and-defamation.html

Recognizing that this may be both too broad and too specific a question: are there established best practices for how to enforce a community code of conduct while protecting complainants and the organization itself? Things to definitely avoid doing?

Thanks again!

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Hi Amal! So, this space is definitely still evolving. At the moment, there’s no hard and fast best practices, but people are starting to specialize and we’re starting to see norms emerge. As a general matter, from a defamation/libel standpoint - the general approach is that enforcement should always be based on a reasonable belief in the truth of the underlying claim, that’s where the law tends to offer greater protection. Always be extra careful in this regard when talking about folks who are not public figures.

You might want to consider giving our friend Kat Lo a shout. She specializes in community standards / codes of conduct and might be able to give you specific advice: https://www.linkedin.com/in/katherinelo.

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What should a writer do if they receive a cease-and-desist letter that they feel is unjustified and perhaps even suspect is an act of intimidation?

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(This is Lea) It can be hard to know the difference between a letter that’s intimidating but legally meritless, and one that represents a credible legal dispute. Treat it seriously as a matter of first impression.

If you get a cease-and-desist letter, the first step is not to panic! The second step is to read it carefully. So, as unsatisfying as this advice is, in general - the third step should be to talk with a lawyer! This is where we can actually be useful. SO: don’t panic, read it carefully, and don’t react impulsively -- it might be bogus, but you don’t want to jump the gun in case it isn’t.

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That’s it for us today! Thank you all so much for your questions -- we tried to get to as many as possible, and hopefully even if we didn’t get to your question, we answered a similar one elsewhere in the thread.

If you’d like us to do more things like this in the future, be sure to give the Substack team a shout and let them know you liked it!

We’re delighted to be able to help out the Substack community - thanks again for having us. Feel free to give us a shout to Tim at tim@wolfeandhwang.com if there’s specific issues you have or if there’s anything else we can lend a hand on.

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Thank you so much for your advice and wisdom, Tim, Mike, and Lea! We're all grateful for your time and expertise, and hope to have you back here soon.

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Really enjoyed this, thank you!

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What are the best practices for using photos, .gifs, etc. found on the internet? Substack makes it very easy to put those into newsletters, but what are the legal issues there?

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The basic assumption you should make around all online images (or, at least, all online images from the 20th century) is that they are protected by copyright, meaning you will either need permission from the rightsholder or an applicable copyright exception you can rely on.

In the U.S., many journalistic uses will be fair uses, allowed under the law because of a limitation on copyright. Some fair use cases are easy, some are more difficult, and all can still anger rightsholders. Making easy fair uses is something you should be able to do, but it’s worth taking the time to consult applicable guidance that can steer you right. Consider starting with the CMSI principles for fair use in journalism, available here — https://cmsimpact.org/code/set-principles-fair-use-journalism/.

There are also images that are licensed for public use, such as those marked with creative commons licenses. You’ll need to follow those license terms, but they are typically very easy to understand and manage.

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Should buy publishers insurance?

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For my part (this is Mike), I often — almost always — find myself recommending publishers carry errors and omissions insurance. Getting into legal trouble can be expensive even when you’re right; insurance takes the sting out considerably.

That said, context is everything. Weighing the scale of your operation against the cost of premiums and alternative sources of help can be a dark art. But if you look at the numbers and it’s affordable for you? Definitely a good idea. Consulting an attorney can also be a big help in gauging the scale/nature of specific legal risks you think you might face.

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thanks. are there any particular firms that have reasonable and good coverage for that?

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(Mike) The bad news is I can’t recommend a specific firm. The good news is that this is because none of my clients have never been in a position where they’ve had to test the quality of the coverage. So, I wish we could help here, but am in some sense glad to not know?

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Seconding this to see if anyone has any up to date info, as from my experience/inquiries, the insurers and insurance agents have DRAMATICALLY scaled down in insuring individuals, especially those who work in nonfiction. I made a real effort to try to get insurance a year ago and was tipped off that the state of the business isn't what it was a few years ago when the string of "how to get publishers' insurance" articles came out.

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Hello! I'm wondering about the copyright laws regarding newspapers published pre-1970s. Can I use a digital scan of an article online?

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Pre-1970s covers a whole ton of ground! So, no surprise, the answer is a big “it depends.” It depends first on whether the material is in copyright (which you should assume it is if it’s from 1924 or later, although for complicated technical reasons it might not be). But then, it depends on your use, along with your jurisdiction. Copyright laws everywhere are riddled with exceptions to enable useful stuff — in the US, “fair use” is the most important. Whether a use is fair highly context dependent: among other things, it depends on how much you’re taking, of what kind of stuff, for what purpose, and how harmful it is to the market for the original.

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Thank you for the reply! Very helpful

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Is is worth registering my own (straight political journalism) newsletter as an LLC? And if I do that will I owe additional business taxes?

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It’s a bit of a trade-off. On one hand, LLCs do offer you legal protection - if you’re not incorporated, your personal assets can be exposed in a lawsuit. So, if you think there’s a risk that this might happen - even a meritless lawsuit brought by someone angry with your reporting - it’s advisable to get incorporated. LLCs can be “sole member” - which means that from a tax standpoint there’s no additional filings you need to do.

On the other hand, LLCs usually have annual registration fees with the state - in CA where we’re based, it’s a $800 fee (other states may vary). So there’s some upfront cost. You also have to maintain some paperwork documenting your LLC to ensure that you keep the legal protection. So this depends on your risk preferences and the scale that you’re operating your newsletter at.

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Hi, Have some generalized questions. Hope to get advice from pros like you. 1) what are the limitations that we need to follow when writing for health related niche? 2) Are referencing research sites/paper sufficient when giving advice on the blog sufficient? 3) Are diet plans/lifestyle advice's are as sensitive as medical advice? Thanks!

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This related to video embedded in a newsletter but in practice is using a short clip of someone else’s video if the purpose is to provide commentary and illustrate a point with it fair use? How often is action brought regarding that?

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What's the fair use line on putting screenshots from a TV show in a TV review? Are, say, 10 screenshots that back up the content fair game, or could that cause a problem?

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For better or for worse, there are no bright line rules in fair use. It is always, always, always case by case. Now, criticism and commentary are archetypal kinds of fair use — cases where you simply need to reference the original in order to adequately do that important work. The quick and easy formulation of the test that I often tell people is: “am I using an amount that is reasonable in light of a favored purpose”? Consulting fair use codes of best practices (https://cmsimpact.org/codes-of-best-practices/) can be helpful to get a sense of what might be routine, as opposed to extraordinary cases that are more likely to require the attention of an attorney.

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Do you recommend publishers purchase insurance from companies that specialize in insuring publishers or do most companies offer good coverage? Do you have any recommendation on how to go about identifying options and selecting an insurance provider?

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Hi there! I write daily inspirational messages for my membership. Do I have protection over my work to prevent people from reposting my words on social media or redistributing my emails?

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I just came across this thread. I will see if anyone out there is still responding. I just bought an image on Getty Images to use on my substack. It says the Licence type is Rights-managed. I have read through the licensing policy once and about to go through it again. My understanding is I am good to go for non-comercial use. But what happens if I start charging subscribers? Is that not a sort of commercial use?

I just want to use a picture of Patti Smith in an article about Patti Smith, giving the photographer credit under the image. I want to know if I am doing things properly.

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Can you advise on legal cases in India?

Do you know someone who can?

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Adding to what Bryce wrote in a thread here, so a curated newsletter where the headline and the intro( 1st para) are re-written and a link given to the original article is fine under the copyright laws, I guess? And the same would also be ok for a curated news website?

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If a person was hired as a ghostwriter and the written book was published by the recruiter without paying the full quote and without informing the ghostwriter, can the ghostwriter take any legal actions if the contract was not on paper but mails were transferred?

Thank you for your time! 🌟

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For work that is published in the United States for a predominantly US-based audience, how do foreign countries copyright laws impact liability? For example, if I publish something under very reasonable fair use that passes muster in the US, but that content is then consumed in the UK/EU/Korea/Russia/etc. would the Fair Use exceptions carry over to those places if there are different rights holders in those countries?

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Lea here - in terms of international/internet copyright rules, there is often a gulf between what the rules state on paper and the practical enforcement of those rules. I'll let Mike get into some of the detail. More in a second!

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(Mike) You’re right to think that fair use doesn’t work well across borders. On the one hand, copyright protections themselves look very similar across borders — certain minimum standards are set by major treaties. But exceptions and limitations are *not* harmonized, and only very few countries use a fair use standard.

Now this doesn’t mean that your fair use here isn’t allowable under another country’s more specific exemption. It may or may not be, but in the typical case doing a check across all possible jurisdictions will not be feasible. If you spend lots of time in / have the bulk of your readership in / store your gold bullion in a given jurisdiction, it might be worthwhile to think about being more careful about compliance in that other jurisdiction.

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Hi, I was want to start a wild life travel newsletter, will there be any legal issues regarding this niche?

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If I posted an image that is copyright protected on a financial blog article, do I have to pay editorial or commercial use fees? The website sells newsletter subscriptions, but the image was used within the blog portion of the site in an article that was public/free and not written specifically to sell anything. It was commentary on central bank policy with a link at the bottom to go to a page to sign up for the newsletter. Is this editorial or commercial? Because the fees vary greatly depending on use.

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If I repost a meme on my website that someone else created and posted first, but used a copyright protected image, do I have to pay licensing?

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Hi there! I write daily inspirational messages for my membership. Do I have protection over my work to prevent people from reposting my words on social media or redistributing my emails?

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Copyright protection attaches the moment someone creates an “original work of authorship,” providing exclusive rights to reproduce and distribute the protected work (among other things). *Enforcing* a copyright interest can be difficult: it’s a federal law in the US, and it is generally enforced through federal lawsuits — which can be prohibitively expensive. And a work needs to be registered with the Copyright Office in order to be protected in court.

For folks who might be interested in enforcing their copyright interests, registering early is strongly advisable: registered works are eligible for statutory damages that can provide substantial awards when enforced, and making securing a settlement much, much easier.

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I'd assume at this point your firm has seen a few frequently-asked-questions. If this assumption is true, can you share one or two of those FAQ's? Prob would reduce a bunch of people asking the same question if you hear it frequently

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We definitely encounter some of the same questions over and over - but the legal consequences can turn a lot on the specifics. We’ve been talking to the Substack folks about putting together FAQ guides for newsletter writers sometime in the future, though, so keep an eye out for that!

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Am I running afoul of any laws using screenshots of websites in my review/recommendation newsletter? Are there best practices you’d recommend?

One Useful Thing: A weekly newsletter of helpful and well-designed things.

https://usefulnewsletter.substack.com/

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Hi, I am curious about the practices around getting permission to republish an article on my website that was originally published on another website. I assume getting permission from the author. Maybe permission must be from publisher, if author is not the one to give the permission. Do you recommend I do more than 'save' the email reply back from the author giving permission? Better to have a release form the author electronically signs giving permission? I want to mitigate risk of being reported for copyright violation in future and do it systematically as our website would be republishing articles on frequent recurring basis.

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Getting permission can be as simple as a verbal OK, but as an evidentiary matter, having something in writing is always helpful and a best practice. For some more significant copyright transactions — exclusive licenses and transfers — a signed writing is required by law.

There are other advantages that come with more formality. Authors are often rightsholders, but they are not always; a more formal agreement gives you more opportunity to get reassurance and backing on these kinds of things.

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What's the general rule for linking other news articles? If I copy and paste the article headline (and link) or if I change the headline (and link), any copyright issues with that?

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(Mike) Generally (of course there are exceptions!), headlines - standing alone - are not protected by copyright. Whether linking by itself can give rise to copyright liability is a contested thing with different approaches between the US and Europe, but linking to lawful, publicly posted material is going to be just fine anywhere that I know of. Note that linking to an unpublished Tarantino script will get you sued, but that’s a case that Gawker ultimately won.

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Adding to what Bryce wrote, so a curated newsletter where the headline and the intro(1st para is re-written) and a link given to the original article is fine under the copyright laws, I guess? And the same would also be ok for a curated news website?

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Need for E&O insurance?

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See our response to Bill Bishop, here in the thread!

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Can you talk about getting music cleared on a podcast? I.E. if I wanted an intro song for my podcast, how difficult is it to choose one/use it? Do I need to run it through tons of legal shenanigans to do so? Same for simply playing a clip of a song on the show. Thanks!

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Should I be concerned about liability over giving advice that people used in their business that (they felt) didn’t work out?

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The short answer is: no, his is very unlikely to lead to any actionable liability. That being said, there’s nothing to stop someone who is irrational and determined from filing a lawsuit against you. Even if the suit is meritless, it can be a hassle to deal with. So: if someone threatens to sue you because they followed your advice, you’re probably not going to owe them money in the long run -- unless you knowingly misled them, or made them promises regarding the advice that they relied on in some material way.

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Hello! Can you weigh in on things newsletter writers on Substack should be thinking about regarding spam laws, GDPR etc -- anything to think about as we try to grow lists?

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Hello there,

what would you say are the basic requirements for bloggers and newsletter writers in the US that also have a social media presence to be legally save on all these platforms? (Blog on own Webspace, Newsletter on Substack, Social Media on various platforms).

Thank you very much!

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Meant to write EU instead of US, sorry for that whoopsy!

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Hi folks - under what circumstances are we who write about news & policy on Substack considered to be journalists, and as such covered by various first amendment protections?

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The First Amendment protects everyone! The distinction between being a journalist and a newsletter writer doesn’t make a difference in getting those protections.

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Trademark rights come from use in commerce — selling stuff or providing services using the mark (which can be almost anything) in a way that creates an association between the mark and you as the provider of the good or service.

Adding the ™ symbol is a genuinely useful and good way of signalling your intention to claim trademark rights. It is not a make-or-break, do-or-die thing, but it’s good. But the very best thing is using the mark widely and earning recognition — saved copies can be good evidence, but it’s not necessary.

Registrations are the next step to securing trademark rights. You can register your mark internationally, and there are streamlined ways of doing so, but ultimately actual use in those markets will be required. I strongly recommend speaking to an attorney about the registration process. You can do it yourself, yes, but there are many pitfalls in that process that are worth a quick minute of attorney time.

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