Wants to Copy Website's Terms of Service

Dear Rich: I run a a health and fitness blog. It has come to my attention that a medical disclaimer should be included on my website. These disclaimer appear lengthy and go into a great degree of legal jargon. I would not like to craft my own. Anyhow, if I use the medical disclaimer of another health and fitness blog, verbatim, would this be infringement? In other words, does plagiarizing a medical disclaimer (or any privacy policy, FTC disclaimer, website TOS etc.) constitute infringement? 
Yes, copying terms of service (TOS) without permission is infringement. However, you don't hear of many lawsuits over TOS theft possibly because the copyrights are so "thin" and the origins of so many are murky. That is, it may be difficult for a copyright owner to claim the TOS as an original work of authorship. (There's something strange -- we almost said "ironic" -- about the fact that TOS's prohibit copying yet they are so often, pilfered or cobbled together from various sites, often by lawyers). Another obstacle for someone coming after you is the "merger doctrine," a copyright principle that excuses copying if there are a limited number of ways to express an idea.
Bigger concerns. Even if the threat of infringement does not loom over your website, there's a bigger issue --  your ability to enforce your TOS against an errant user. If you sue someone over a TOS violation, the opposing attorney will want to know the origins of your TOS ... and that's when you have to reveal you nicked it from a competitor's website. It may still be enforceable but a legal shadow hangs over your TOS especially if you copied irrelevant sections or failed to remove names not applicable to your business.  If you want to avoid these potential hassles, there are online TOS generators and some sites such as WordPress and Automattic have made their TOS available for others to use under Creative Commons (CC) licenses. Also, the CC folks have tried to simplify the business of creating a TOS. And of course there are always attorneys prepared to create or customize TOS for your company (or copy them from treatises).
P.S. Dept. Keep in mind that a court is more likely to enforce your TOS if the user has to click to agree.

Do I Lose All Rights When I Blog?

Dear Rich, I was recently accepted as a writer for a major national syndicate of blogs covering sports teams. This company does not have a physically-signed document per article as is traditional with journals, to clearly state a work/submission is considered "work-for-hire", (where full copyright is given to the publisher from author). Instead, there is a blanket document called, "Content Standards for Contributors" that all writers must click-sign prior to writing for one of the blogs. In this is the following line: "You hereby irrevocably grant to us the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, distribute and otherwise use the submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation[...] All submissions made by you shall be the sole property of ***** and will not be acknowledged or returned. " My question: Almost all writers, including myself, for these blogs are not paid, are not contracted, nor are they employees, but according to their "content standards" the act of publishing on their site results in the transfer of the copyright of the article. Is this "agreement" legally binding, and considered ethical?  
A click-to-agree contract is legally binding in the U.S. and the fact that you don't receive any payment does not prevent it from being enforceable (as long as the arrangement provides some benefit to you-- for example, increased exposure versus obscurity).
Who owns what? We think a blogger entering into this agreement retains copyright. We don't think the statement, "All submissions made by you shall be the sole property of [company] and will not be acknowledged or returned," transfers copyright ownership (It seems more like a vestige from publishing agreements relieving the company from having to keep track of email or paper submissions.) We believe a court would require more explicit language affecting a transfer -- for example, using words such as "assign," or "transfer," and "copyright" and "ownership."
What type of copyright? What you retain, after entering into this agreement, is a partially-gutted copyright. That's because you give up a lot of rights on a nonexclusive basis, effectively preventing you from selling those rights to someone else on an exclusive basis -- for example,  entering into publishing agreement for a collection of blog entries as a book. But, of course, that may be "old school" thinking, ignoring the benefits of your personal brand exposure and the temporal quality of sports blogging.

Fish Out of Water (and Copyright)

Dear Rich: I am currently in the process of making a logo for trout nets I sell. My graphic design artist did a great job but used a trout silhouette off of a stock photo site. The site says it is prohibited to use their material as part of a logo, but it is just a silhouette of a trout jumping and I feel like that is more public domain than not. I talked to my graphic design artist who is willing to sketch one up from scratch, I just feel it is kind of silly as there are only so many ways to depict a silhouette of a trout jumping out of the water. 
Your argument -- that there are a limited number of ways to portray a jumping trout silhouette -- is a reasonable defense to copyright infringement and may possibly qualify under the merger doctrine or as "scenes a faire." However, if you obtained the image from a stock photo site and entered into a license agreement, copyright would take a back seat to the contract. If the stock company notices (and cares), they can hassle you over breach of license and your copyright arguments would have little value. Have you considered public domain or Creative Commons imagery? There's a lot of other fish in the sea.*
* and yes, there are saltwater trout!

Does Netflix TOS Trump Copyright Law?

Dear Rich: You’ve written that classroom use of Netflix might get a copyright pass but I have a question about that section of the copyright law ( Section 110). The Netflix TOS reads: "The Netflix service, and any content viewed through our service, are for your personal and non-commercial use only. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable, license to access the Netflix service and view movies and TV shows through the service on a streaming-only basis for that purpose. Except for the foregoing limited license, no right, title or interest shall be transferred to you. You agree not to use the service for public performances."Wouldn’t the Netflix terms of service trump the exemption based on the idea that the acquisition for a non-private/personal purpose is illegal thereby nullifying the exemption?
It's true that Terms of Service (TOS) and End User License Agreements (EULAs), if properly executed, are considered legally enforceable and can force copyright law to the curb. But we can't say for sure how it would play out as no court appears to have addressed whether a license can defeat the educational exemption in Section 110. More importantly, the reader noted that when he contacted Netflix, they readily agreed with his educational use. That makes good legal and public relations sense. No company wants a Macarena on their hands!

How Do We Protect Educational Comic

Dear Rich: I work for a small start up company that goes to various elementary schools in New York and teaches students on the benefits of a proper nutritious diet. We primarily teach them through comic strips that we created. We went through the proper channels to make sure our brand is trademarked and our works copyrighted. However, we're afraid that some educators may use our works without our permission. How much does fair use protect when it comes to educational materials? What more can we do to protect our work? We assume that when you say the "proper channels," that you (or your lawyer) (1) registered your trademark with the USPTO, and (2) registered your comic strips with the U.S. Copyright Office. Those procedures enable you to chase infringers, assuming you have the money for an attorney. If you're looking for additional means of chasing those who use your work without permission, you can require users to enter into an end user license agreement (sometimes referred to as an EULA). Under that arrangement you may attempt to further limit your client's rights and you may establish methods of resolving disputes (for example, requiring arbitration, not litigation). Finally, if someone posts your work without your permission, you have the takedown provisions of the DMCA at your disposal.
Fair use?  As you know, fair use permits limited unauthorized uses of copyrighted materials for purposes of commentary or criticism. To the consternation of some in copyright law, a few courts have held that a license agreement can negate fair use rules. Whether fair use trumps a license agreement is ultimately up to the courts. We can't tell you "how much" fair use protects --  it's not a mechanical calculation -- so, you'll need to review cases with similar facts to determine your possible outcome. But we can tell you that if someone makes an unauthorized use of your material, and they're using it for the same educational purposes as you intended, and depriving you of revenue, it's probably not a fair use.

Can We Require Positive Uses Only?

Dear Rich: We would like to add some "usage" language regarding an electronic (on a flash drive) media kit that will contain artwork, photos and logos. The language would let the media know that they can only use the downloadable items in a "positive, non-defamatory manner." Is there "boiler plate" language that I can use for this purpose? If your goal is to prevent people from using your copyrighted materials for anything other than "positive, non-defamatory" purposes, we think you need to rethink your goals. It's a little bit like a music company telling a  music reviewer she can reproduce an album cover ... but only if the review is favorable. We think situations like this create hurdles of enforceability.
Is it a warning or a contract? When you allow people to reproduce your content, you are granting a license. But in order to create a binding license -- one that permits you to step in and stop unauthorized uses -- you need to prove that you entered into an agreement. As we've mentioned before, the most effective end-user licenses (EULAs) require some type of actual agreement -- typically a click-to-accept checkbox or button. These mechanisms for "agreeing" come in many shades and as a general rule, the easier it is to demonstrate that the other party agreed to the terms and conditions, the easier it will be to enforce the agreement. On the other hand, some licenses -- such as Creative Commons licenses -- require less proof of consent. These are more like warnings that say, we will not sue you for copyright infringement if you do certain things (for example, provide attribution) but we will sue you if you don't.
Defamation and "positive" purposes.  If a user defames you or your company, you don't need a EULA to go after them. Defamation laws permit you to recover damages regardless of the licensing arrangement. Your biggest challenge is to be able to define positive uses. For example, which meaning of 'positive' are you referring to? Certainty, acceptance, and affirmation (as in "positive criticism"), or a use that implies moving forward in a direction of increasing progress? Does the use have to be 100% positive? What if it is 40% positive? Is it a subjective, arbitrary, or objective standard? Unless you can set forth a clear definition of the uses that are acceptably positive, you will have difficulty enforcing this vague contractual condition in court (and the ambiguity may even invalidate the agreement).
Fair use? Finally, always keep in mind that copyright laws permit limited unauthorized uses of copyrighted materials for purposes of commentary or criticism. Whether fair use trumps a license agreement, or whether the license agreement is valid are matters that would need to be decided by the courts. Depending on the size of your distribution network, you may want to prohibit all uses -- with the exception of the right of the user to load and view on the user's computer -- unless approved by you. That would allow you to have total control over reproductions.