The Legalities of Blogging: Are You Stepping on People’s Toes?
There comes a time in every blogger’s career when he or she has to start thinking about things such as copyright infringement. Ideally, we would all be well educated on intellectual property laws and the way those translate to the online world before we even start blogging, but most often than not that is not the case. We usually start thinking about these things when our own work gets shared and/or used without permission, when we get contacted by someone for unintentionally using their content, or when our blog becomes big enough that we have to start paying attention to these things.
The main reason for this is not our lack of interest, but the fact that even law-makers themselves are not sure how physical laws translate to our cloud reality and each case becomes a subject of discussion. Take for example the recent case of Richard Prince and his controversial art collection “New Portraits”. Prince enlarged, slightly changed and sold other people’s Instagram photos (for which he did not ask permission to use) for $90K each. People are at the same time outraged and discouraged from challenging him in court. Why? Because he previously won similar cases arguing “fair use”.
Fair use is definitely something we will tackle in this post but before that let’s start with the most important and basic things you have to know about intellectual property laws in countries like the United States and Europe:
1. What you need to know about copyright
The moment you create something – a picture, an article, a music composition, a sculpture, a drawing… – you gain author rights over that work, which means that you have the right to control how and by whom that work is used. No one can copy, distribute, perform or even display your work without your permission.
But there is a catch. Even though you gain copyright right over your work the moment your work is created and tangible, you cannot sue someone for copyright infringement if your work is not registered with your national Copyright Office first. The registration process is different from country to country and sometimes so complex that it’s a good idea to seek legal counsel.
What is not protected under copyright law are the facts. You can never get in trouble by stating facts, whatever your source is. What can be put under copyright law is the way you present facts. For example, an infographic you create, with your own design elements and comments – something that makes it your own – is copyrighted, even if you used facts from a different source.
2. What is a trademark and why should you care
A “trademark” is a brand name. In the United States, a trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.”
– United States Patent and Trademark Office
You can trademark you logo, tag line, even your domain name, and that trademark signals to your readers that you as a brand are associated with work that is presented, just note that you have to actually use the mark to have trademark rights.
Trademarks are important because they protect your brand identity from being stolen. And you put too much time and effort into building your brand not to make sure you protect them with any means possible. In her blog post, Carol Cain of GirlGoneTravel, explains how she decided to trademark her brand after listening to horror stories from well-established bloggers who got their brand identities, logos and content stolen and commercially used by larger corporations. It seems that even the number of your followers offers no protection.
3. How to mention people and events surrounding them
As bloggers we are often motivated to talk about personal experiences and people and companies we interact with. However, when doing that we have to be careful not to commit the crime of defamation, or in simpler terms, to write something that will negatively reflect on the reputation of a person or a company we are writing about. Defamation happens when we make false statements about someone, but it can also happen unintentionally if we forget to add a key piece of information to the story, especially when it is about a private individual.
If writing about someone we have to make sure that we have all the facts. While opinions are usually ok whatever we say, one must present accurate factual statements Otherwise, we can get sued.
The moment we start writing our blog we have to be aware that everything we write stays. The concept is quite simple but sometimes really hard to grasp. Especially when we are just starting and not many people are reading our blog. My advice is to every time you go to hit “Publish” ask yourself: Would I be comfortable with my family seeing this? Would I be comfortable with my friends seeing this? Would I be comfortable with my employer seeing this? If the answer to any of those is no, reconsider. In digital age, a lot more than diamonds is forever.
4. How to make sure that the pictures you are using are free to use
We all use visual elements to underline the message we want to send with our blog posts. While just Googling what we need is certainly the easiest option available, we have to be careful about using someone else’s work. Contrary to popular belief, citing a source does not protect us from copyright infringement if the author of the picture did not give us the right to use it on your blog.
Aside from buying stock images, one of the ways to make sure we have the right to use the picture on our blog is to use Creative Commons. Creative Commons is a non-profit organization that enables sharing of creative work through use of copyright licenses that clearly communicate the rights that authors have over their work. Just make sure to use the images with a license to modify and commercialize images.
Of course, the safest thing to do would be to use your own pictures exclusively. In fact, this is why many bloggers after a while develop an interest in photography and design – these skills allow them to express themselves and create compelling visual content that will enrich their story and save them time in finding the appropriate and free-to-use picture.
5. The “Fair Use” clause
The “fair use” clause is what allows us to quote other bloggers in our blog posts, for example, or to use brand names in passing like “McDonald’s.” It also allows us to quote a small passage in a book we are reviewing.
The fair use clause is what Prince used as his defense against charges of copyright infringement. He won. He won because fair use gives you the ability to copy someone else’s work as long as you transform it into your own original thoughts or if your goal is to comment or to educate the public. In this case, he made screenshots of the pictures to which he added his own comments. So far, I have not found information that any of the Instagram users whose pictures were appropriated in this last case plan to sue Prince, but some did decide to fight in their own way.
While fair use clearly has its advantages, it also means that we are under constant threat of someone using our pictures, changing their exposition a bit, calling it a means of personal expression. Although, if they are using it for their own commercial gain it may not be considered fair use. The fact is that “fair use” clause in the US is a multi-factor test with lots of elements being factored in. At the same time, this doesn’t mean that we should give up. It means that the knowledge is power and we have to know what we are fighting against.
In the end, please note that what we shared here are just the basics and that this article is not in any way a legal advice. If you want to know more about this issue and learn how to protect yourself and your work you should go to a professional and ask for legal advice. Also, feel free to share your experiences and opinions regarding protecting your work online in the comments.
The person whose work motivated me to start exploring this issue is Ruth Carter and her book “The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed”. Also, I would like to mention Karen J. Bernstein of www.bernsteinip.com who helped fact-check this post from a perspective of killer attorney! 🙂 Check them out!
