A Legal Primer for Bloggers, Part 2 – Intellectual Property

This post continues a series dealing specifically with the legal issues that bloggers should be thinking about.  Part 2 will help you understand your rights to link to information or graphics from other sources, quote from articles and blogs, or otherwise use someone else’s copyrighted works.  It will also discuss the appropriate use of trademarks in blogs (both your marks and those of others).

I. Overview of Intellectual Property

What is copyright?

Copyright gives a creative person control over the use of an original work of authorship.  A copyright owner has the exclusive right to reproduce a work, prepare derivative works, distribute copies or perform a work publicly.  In the world of bloggers, original works of authorship can include text, images, audio or video creations (and a whole host of other things).

What is trademark?

A trademark is a distinctive sign or indicator used to identify that the products or services with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities.

So think:

Pepsi®, McDonalds®, Apple®

Or:

When you either hear/read the word mark or see the logo mark, you immediately associate that trademark with a particular product or service.  Obviously, these are examples of very strong trademarks.

II.  Copyright

Copyright issues start to come into play when you publish material created by others on your blog or, conversely, when someone else republishes material that you posted on your blog or website.

Copyright law applies to the reposting of text, images, audio and video.  If you’re posting somebody else’s original work, you’re likely violating one of the exclusive rights mentioned above. But as you, me and anyone else on the Internet knows, people are copy/pasting, hyperlinking and cross-referencing all over the world, all the time.  Are they all liable for copyright infringement? Luckily, the Copyright Act has a built-in exception called “fair use” that allows you to use other people’s copyrighted works for certain, enumerated purposes.  These include criticism, comment, news reporting, teaching, scholarship or research.  So, for example, if you are commenting on or criticizing an item that someone else has posted, and use a quote from that source, that’s probably fair use.

The following factors are considered in a fair use analysis:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Keep in mind that the law favors “transformative” use.  In other words, if you’re reposting another person’s original work, it’s more likely to be fair use if you’re using that work in a different manner or for a different purpose than the original.  While you may borrow directly from another source, adding your own commentary and content is better than strict copying.  Likewise, it’s better to repost only a small portion of someone else’s work than the work in its entirety.

If you feel that you’ve gone too far in your copying, you probably have.  Consider whether you’re able to share the same information but in a different way (i.e. your own words).  If you can’t, that’s strong evidence it’s a fair use.  Don’t worry if you’re confused…this is a gray area in copyright law that isn’t totally clear to anyone at the moment.  If you have specific questions about your use of someone else’s creative works or someone else is using your works, contact a copyright professional (who should be well-versed on legal developments and what typically constitutes fair use) to provide a more detailed analysis.

Also, on a practical note, if you’re using someone else’s text or images and they contact you to ask you to remove them, you probably just want to go ahead and do it.  After all, there are lots of different ways to express an idea and usually hundreds of equally wonderful pictures to adorn your blog.  On the other side, if you find someone else using your text or images, take a deep breath before contacting them and remember what Barney says about sharing:

III. Trademark

Let’s talk first about your own trademarks.  Often you’ll have spent good time and money developing and protecting your trademarks.  It would be a shame to lose your rights through improper use.  Proper use enhances a mark’s ability to identify the origin of products or services, and minimizes the likelihood that a mark will become generic, or be abandoned unintentionally.  Make sure you always use a proper trademark notice (™ for common law rights, ® if you’ve obtained registration) and remember to use your trademark as an adjective. Escalator was once a registered trademark but rights were lost when everyone started using the term as a noun to describe just any ol’ moving stairway.  The mark no longer brought to mind its owner as the single origin of the product.

It’s probably just as common that you’ll post someone else’s trademark…I know this blog, as a news and information source, posts 3rd-party trademarks fairly regularly.  This is typically permissible, because while trademark law prevents you from using someone else’s trademark to sell your competing products, it doesn’t stop you from using the trademark to refer to the trademark owner or its products. That is called “nominative fair use,” and is permitted if using the trademark is necessary to identify the products, services, or company you’re talking about, and you don’t use the mark to suggest the company endorses you.  Again, bloggers get by on an exception to the rule…we are living in a gray legal realm.  Consult a trademark professional if you’re concerned about your use of somebody else’s trademark.

The next post in the series will be A Legal Primer for Bloggers: Defamation.  The post will explore your options when somebody has posted something false and damaging about you, including some common defenses.  Until next time, sticks and stones, my friends!

A Legal Primer for Bloggers

Part 1: Introduction

Part 2: INTELLECTUAL PROPERTY

Part 3: Defamation

Part 4: Anonymity

Part 5: Privacy