blogging copyright law

First, this is important: I am not a lawyer and this is not legal advice. I’m currently a law student, in the process of learning to “think like a lawyer” hence this disclaimer; I am learning to cover my ass. Anyway, you should worship me and idolize me, but you should always check with a licensed attorney in your own jurisdiction when it comes to legal advice.

That said, I have a lot of friends who are artists, musicians, writers, etc. and from time to time, they will ask me a question, such as, “Hey, you’re in law school! Is it true that I can copyright my story/song/drawing by sealing it in an envelope and mailing it to myself?” To which I usually respond, “Hell if I know.” Sometimes they will ask, “How can I protect my blog entries from being stolen?” To which I usually respond, “You can’t.”

That second response is, unfortunately, the truth. If you want your work read, listened to, or viewed, you’re going to have to face the reality that someone may, in fact, be able to steal your work. Once the work is out there for others to see, it’s out there for slimeballs to steal. This isn’t anything new… when 16th Century monks wrote erotic poetry for the aristocracy, the only thing that kept it from being copied far and wide was rampant illiteracy.

So, learn to live with the fact that some jerk out there may try to steal your work. Instead, know that 1) you are the talented one that created the work in the first place, so they aren’t going to get very far ripping other people off; 2) the higher a profile they gain by ripping you off, the better your chances of catching them. And really, that’s what most people really want to know when they ask me about copyright, “If someone does steal my work, what can I do once I catch them?

Copyright Basics

First, let’s start with what copyright is and what it isn’t. It’s all about one thing: property. When we talk about “property rights” in law school, an analogy frequently used is a “bundle of sticks”. Each stick represents a right you have in property you own, and collectively, they are the property rights. So, for a piece of land, you might have the right to rent it, the right to invite people onto it, or to kick trespassers off, etc. When it comes to your ideas, there are similar property rights. In the case of your business logo, you can obtain a trademark to prevent other businesses from using it. Or if you’ve invented a great new mechanical reaper, you can patent it to prevent others from stealing your design and marketing it. When it comes to your original works, such as writings, songs, paintings, drawings, even computer code, the collective rights are talked about as copyright.

The rights you have under copyright include things like the right to sell copies of your work, the right to prevent other people from copying your work, the right to allow others to use portions of your work, perform your work, etc.
So how do you get copyright on your works? Well, first, the work has to be original; and you have to put some creative effort into creating it. That said, it doesn’t have to be as original or creative as you might think, but you can’t just copy the dictionary in blue ink and say that your creativity has resulted in a new work that’s original.

Chances are, if you aren’t trying to rip somebody off, and you’re genuinely creating something from your own imagination, you’re going to be okay. You can’t, however, copyright an idea, you have to copyright something tangible–words, pictures, symbols, etc.

So these rights are wonderful and you want to protect them. So how do you go about that? The nice thing about all of this is that you have a copyright on your work as soon as you create it. That is, as soon as it is fixed in some tangible form, you are protected by copyright, you don’t have to do anything. You will probably want to do some things to protect your rights, which we’ll get to in a minute, but you don’t have to.

Generally speaking, you control the copyright of your works for life, and then your estate controls them for 70 years after you die (life of the author plus 70 years). That will vary if it’s a corporate authorship or if the work was created “for-hire” but we’re not going to get into that here. If you’re creating works for-hire and you don’t have a contract which was reviewed by your attorney, you’re risking getting screwed.

Now, recall that I said you don’t have to do anything. But you should do some things if you really want to protect yourself.

First, you should always put a copyright notice on your works. You’ve probably seen them:

This is a good idea, because it puts anyone seeing your work on notice that the work is copyrighted, when and by whom. That makes it hard for them to claim they thought the work was free just because they saw it on-line and everything on line is free.

Second, in the U.S. (with apologies to my throngs of international readers) you should register your work with the U.S. Copyright Office. It’s very easy to do and it only costs you $30. But what it buys you is well worth it: prima facie evidence in court that you own the copyright to the work (if registered within 5 years of creation). That’s good. In some cases, it may also entitle you to more damages (money!) and attorney’s fees if you have to go to court to defend your rights. All of these are good things and well worth $30 up front.

Now, that sounds fine and dandy for most things… but what about blogs? Are you supposed to register every post?! Suddenly, that $30 fee doesn’t sound as reasonable. Well, remember, you have the copyright as soon as you post. So don’t sweat immediate registration. If you’re really concerned about it, register your posts collectively (as a compilation) once a year. $30 a year buys you registration piece of mind without breaking the bank. And if you’re really strapped for cash, register the works as a collection once every 5 years. Pennies a day!

Copyrights and Blogs

When it comes to blogging, there are really two issues with copyright: protecting your works and making sure not to violate the works of others!

Protecting yourself is pretty easy: don’t steal other peoples work. Okay, you wouldn’t do that blatantly, would you? Of course not, but there are some steps you can take to make sure you don’t accidentally run into problems either:

1. Don’t use images from another source unless you have obtained permission from the author, or unless they are from a “royalty free” collection or database.

2. If you reference another person’s blog, post, article, etc. give them attribution and a link. This isn’t just good for protection, it’s polite.

3. If you must quote to make a point, reference, etc. do so sparingly and selectively. Don’t quote three paragraphs when one sentence will do.

If you stick to those guidelines, chances are you’ll be okay. But should someone get nasty with a letter from a lawyer telling you to take something down: take it down. Unless you are willing to end up in court defending your use on principle–in which case, talk to an attorney and make sure you would even have a case.

Which is a nice lead in for what you should do if you find someone is stealing your work: sue them!! Sue them into oblivion!! Whoops, lawyer thinking again… sorry. Actually, court is really the last place you want to be. Here’s the thing about court: it’s not cheap. It takes forever to work through the litigation process, filing fees aren’t cheap, and lawyers are not cheap. It’s going to cost you a fortune to really take legal action, so your first question if you find someone is gankin’ your goods is to ask yourself if it’s worth the trouble to defend that blog post you wrote about the cute shit your cat did. Probably not.

But it’s easier to say, “let it go!” than it is to actually let it go. So what do you do? Well, first contact the thief and politely ask them to remove your work from their site. Polite is the key, you’ll (generally) get better results that way. Which would you respond better to:

“I noticed you have liberally quoted one of my blog entries and in the format of your blog, it isn’t clear to the reader that you did not write it. I’m glad you enjoy my work, but would you please link back to the original or remove the post.”

Or:

“You goddamn thief! You lying whore of a bastard!! You’ve stolen my post and I’m going to get a lawyer and sue you into bankruptcy you festering waste of flesh!!!!”

ALL CAPS ARE ALSO A BAD IDEA.

If you don’t get results that way, you can take it one step further with the “cease-and-desist” letter, courtesy your attorney. It won’t cost you nearly as much to have an attorney draft one of these letters, and often times, the mere presence of an attorney’s letterhead will get results without resorting to a lawsuit. Remember, you don’t want to be in court unless you really have to be–and unless there’s more at stake than just your pride.

Licensing

So you’ve got your copyright notice plastered all over your site. You have your registration packet lined up for last year’s post. And suddenly it occurs to you: wait, I want some people to be able to use my work–as long as they aren’t MEGACORP profiting from it without paying me. Say hello to licensing!

You may have thought licensing was only for your car or Major League Baseball, but you, too, can license your works. In the blog world, you’ve probably seen references to the “Creative Commons”. Or you may have even applied a “Creative Commons” License to your blog. If you did, I hope you understand what it means.

Remember that “bundle of sticks” that make up the copyright? Well, you can give away your rights, one stick at a time–allowing people the right to do something with your work while prohibiting others. For example, with the “Attribution Non-commercial No Derivatives” license, people can copy your works and distribute them, so long as they give you credit (attribution), don’t make money (non-commercial) and don’t change the work (no derivatives). There’s a smorgasbord of licenses to choose from over at the Creative Commons, and if you decide to go that route, you’ll want to consider which you choose. Think about:

1. Who do you want to be able to use your works? Anyone? For profit or for non-commercial use?

2. Do you want them to be able to change your work, or use it in/as a starting point for their own works? Or do you want to prohibit derivatives in any form?

3. If you do allow derivatives, do you want that person to be able to make money from those? Or do you want them to be required to share any derivative works just like you shared yours?

Those are all considerations for a Creative Commons license. One advantage of a Creative Commons license is that they are presented with a nice, clean “human readable” description, which helps you select the license that is right for you. One drawback is that the description isn’t actually the license. For an interesting discussion of this, you can check out the debate over at Between Lawyers. What it boils down to is that you should think about it before you just slap on a Creative Commons license. It may very well suit your needs, but the first step is to identify those needs.

You could also roll your own license, although this will certainly be more costly, and involve getting an attorney to draft it (or at the very lease, review your draft) to make sure you are adequately protecting your rights. Again, deciding to spend the money will depend on the nature of your blog. What are you blogging about? Your kids? Your cats? Your stock market recommendations? It should be obvious that one of those topics requires closer legal scrutiny than the others. Cats are so very litigious.

Conclusion

I hope this has cleared up some of the questions you may have had regarding copyrights, so you can throw away those printouts of your blog that you’d planned on mailing to yourself. There are some really great resources on the web if you want to learn more about copyrights:

And of course, I’m not a lawyer nor do I play one on the web-but I like to be helpful.

Copyright Basics

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