Lean In or Lean Out: Work-Life Balance and Having it All.

In the flurry of media coverage and blogs on Facebook COO Sheryl Sandberg’s new book for getting ahead in the corporate world, Lean In, one blog from Women’s Media Center immediately caught my attention.  The blog post was Leaning In Can Get You Laid Out, written by author and social media strategist Courtney E. Martin.

The basic premise was that “leaning in” when your body is saying “lean out” can literally knock you off your feet and put you down for a very long count.

The timing of both Sandberg’s book and Martin’s response came at a critical time for me.  I had just returned from South By Southwest. I needed to write a work summary and a blog on my take away. I had transactions to complete, deadlines to meet, and a content summit presentation to prepare for.  I had the desire to lean fully in and yet my body was saying something else…lean out!

I am not one that is inclined to lean out. When I commit, I am full in.  When my son was born in 2000, I worked until the day he was born. After my all natural delivery by a midwife, I had planned to have baby and work both beside me after 48 hours.  I was working on a startup so taking time off was not an option.  I was also working from home, so this seemed very doable.  A serious Strep B infection resulted in us being laid up in the hospital for over a week instead.

A few weeks ago, I was experiencing my body telling me in very profound ways to take a break.  If I didn’t take a few weeks off, no matter how inconvenient that may be, I would end up laid out.  The Martin piece resonated with me in a way it may not have, if I had not been experiencing the consequences of not listening to my own body sooner. Martin writes of a “generation of young women aching into their own choices, painfully aware of the ways in which our own mothers leaned so far in that they compromised their own health. They refused to embrace the wisdom of, not just temporal, but physical limitations.  Our mothers took care of business and us, while refusing to take care of themselves; the message was in the modeling; nurture everybody…except yourself.”

I bought totally into this model. Nurture everyone but myself. The truth is we can’t always have it all. Life in general and in particular as a parent with a demanding career is a series of choices, balancing, and prioritizing. This goes not just for moms but for dads as well.  A friend recently asked me if we must make career sacrifices to be a good parent. The truth is, not always, but sometimes we do.  The work-life balance is the biggest challenge we face in our careers and sometimes leads to difficult decisions that don’t have easy or one size fits all solutions.

For now, I have listened to my body and I am taking three weeks off to focus on my health and rejuvenation.  My SXSW post will eventually come, albeit very untimely.  Deadlines will be pushed back, adjustments made, but I know I need this time to lean out and heal. I am listening to my body.

SXSW Interactive and Not Practicing Law in a Bubble.

NASCAR and Yahoo have handed me my next blog posts on a silver platter. The NASCAR YouTube “take-down” controversy is leading me to write in detail on DMCA take down notices and Yahoo’s new “no work from home” policy deserves a more in depth look at “Constructive Termination.”

Right now, however, I am preparing to leave for Austin and SXSW Interactive. This is definitely not an attorney conference, and yet I consider it one of the most important events I will attend in 2013. The reason relates directly to how I view the practice of law. Putting it simply, law should not be practiced in a bubble.

As an attorney, I have always seen myself as part of the business team, rather than a species apart dwelling in the mahogany stained corridors of the traditional law office. Many times in my career I have encountered “business folks” apart from “lawyer folks” with a cynical outlook on their attorneys and a general feeling that attorneys are simply out of touch with their business. I think in many ways we lawyers bring that on ourselves. We have too often seen ourselves as a separate team, rather than an integral part of the business team. Too many lawyer only conferences can add to what I call “lawyeritis.” It is a state in which the bubble grows and yet our business knowledge shrinks.

I have always found I am the most effective when I am made a part of the business team. My opinions and insights valued, not just on legal matters, but on the bigger business objectives. I also believe to be the best attorney I can be I must continually learn the business aspects of my practice and not just the legal nuts and bolts.

I manage legal issues for 20 television stations, a major metropolitan newspaper, over 30 news websites and over 120 mobile apps. How can I effectively provide legal consult if I am one step behind, rather than one step ahead of what is coming next? The speed with which digital media changes requires a proactive appraoch to stay not only “on top of things” but also out ahead. I think there is probably nothing more troubling than trying to explain a new technology or platform to your attorney and being met with a blank expression or worse a look of alarm. I don’t want to be that type of attorney.

So off to SXSW I go. Many people have asked me what my focus will be. I am not searching merely for legal panels or other attorneys. That narrow focus would put me back in the bubble. My company is looking for investment opportunites, so I will devote a substantial portion of my time at startup village. As I expect my mobile app portfolio to grow this year, I will also devote time to mobile. I consult news directors and journalists, so I will be looking for some good journalism panels and of course that now includes social media. Finally, because I am in the media business (both traditional and new media) I will be looking a lot at Web TV and what is coming next in program streaming.

Did you notice I am in the media business? That is because when people ask me what I do, I always say the business I am in. The fact that I am an attorney comes second to that. I am not in the “law” business, I am in the media business and I love it!

Fair Use and the Internet. What is Fair Use anyway?

The permissible use of materials found online and how “fair use” analysis impacts such use can be one of the most confusing areas of copyright law. The internet and social media have not changed fair use legal standards, but the easy availability of such materials has led to much confusion. I also think the term “fair” adds to the confusion.

The question usually comes in the form of, “Well, it is freely available on the internet, so it is ‘fair’ to use it, right?” The answer is no. It really has nothing to do with a general consensus of what seems fair. Rather, fair use requires a detailed analysis of four factors established in determining if the use is considered exempt from copyright requirements.

The general rule is that materials found online are subject to copyright protection and cannot be legally used without permission of the copyright owner. There are various ways permission can be obtained, either through an expressed or implied license. I will leave that discussion for another time. Fair use is when you have no permission (license) from the copyright holder. Can you use the materials anyway under a fair use defense?

Fair use is based on the belief that the public is entitled to freely use portions of copyrighted materials for the purposes of commentary and criticism. Although news reporting is one of the examples stated in the Copyright Act as a sort of activity the courts might regard as fair use under the circumstances, there is no blanket “news reporting” exception. Courts will examine the fair use factors, even when finding fair use in the context of news usage, and there are numerous examples in case law where courts have found that the use of a copyrighted work in news reporting is not a fair use.

Courts weigh four factors to determine whether an activity that would otherwise fall within the exclusive rights of the copyright owner is nevertheless permitted and not infringing under a fair use defense:

(1) The nature of the use (including whether such use is of commercial nature or is for nonprofit educational purposes);
(2) The nature of the work;
(3) The amount and substantiality of the taking; and
(4) The effect on the potential market for the value of the work.

The first and fourth factors have been singled out for their particular importance. The Supreme Court has stated that the fourth factor “is undoubtedly the single most important element of fair use.” The Supreme Court also has emphasized the first “purpose and character” factor as being a primary indicator of fair use. The Court focused on whether the challenged use of the copyrighted material is “transformative,” altering the original with new expression, meaning, or message. Mere voiceovers are not transformative; however, editing footage for dramatic effect, including editorial comment or using montages may qualify as a transformative use. In addition, using materials that were intended for a different purpose in the course of news reporting may qualify as transformative.

Under the second factor, non-fiction works have been found to be more amenable to fair use than uses of fictional works. The third factor is often not viewed as a test of amount. Rather, this factor assesses the “quality and value of the materials used.” You must ask if what has been taken is the part most likely to be newsworthy and important in licensing.

You should go through a fair use analysis each time you want to use materials found online that you have not received permission to use. Fair use is more likely for uses that are:

Short in comparison to the length of the original content;
Transformed in some way;
Used clearly in a noncommercial manner (pure news reporting, not entertainment); and
Incidental to the purpose of the reporting.

Once again, just because you found it widely distributed on a public internet platform does not mean it is “fair” for you to use it.

As always, consult your attorney.

Copyright, 2013 Cynthia Thornton

Social Media Law: Ruling on Use of Twitter Photos

In one of the first social media cases to consider how materials made public by users on social media networks may be used by third parties, a U.S. district court judge in New York has ruled that two news organizations infringed a photojournalist’s copyright when they published images he had tweeted.

The case establishes one of the first legal precedents in the growing, but still greatly unchartered territory of “social media law.”

In their defense, the news organizations maintained that once the photographs appeared on Twitter they were freely available. According to the judge, the case turned on Twitter’s Terms of Service. While the judge did discuss Twitter Terms of Service as allowing the republishing and rebroadcasting of tweets in certain circumstances, the Terms of Service did not grant a license for third parties to remove photos from tweets and publish them for commercial purposes.

In addition to the particulars of this case, perhaps the biggest takeaway is a reminder and caution that just because something is available on the internet doesn’t mean you can use it. In general, whoever takes a photograph holds the copyright to it. Posting or uploading a photo to any form of social media does not mean it becomes public domain and usable for any purposes, including news.

Publishers and broadcasters should be cautious in using photographs found on social media, unless the specific Terms of Service for that platform grants that right, the copyright holder otherwise grants an expressed or implied license, or it can be demonstrated clearly as “Fair Use” under established Fair Use Doctrine.

Copyright 2013, Cynthia Thornton