New Stance on Blog Copyright Registration

Hey you! by QuinnDombrowski from Flickr

Hey you! by QuinnDombrowski from Flickr

Grrr . . . It seems like every time I call the Copyright Office with a question about blog copyrights, I have to change my stance on how and whether anyone should register their blog’s content. Mind you, when I wrote the Legal Side of Blogging last year, my research and ideas were approved by my cyberspace law professor and another internet/copyright attorney. We all got it wrong.

I used to think that bloggers should register their new content every three months because the Copyright Act says you’re eligible for statutory damages in a copyright infringement lawsuit if you register your work within three months of publication or one month of learning of the infringement – whichever is first. In a previous call to the Copyright Office, the representative said it was permissible to register all your content as one work and that subsequent registrations would be derivative works of the prior ones.

A few months ago I was informed that content that is only available online (including blog posts) doesn’t count as “publications,” so that rule about registering within three months of publication doesn’t apply. For unpublished content, you have to register you work prior to the infringement occurring to be eligible for statutory damages. If you wait until after your work has been stolen to register you work you can only collect actual damages, which will be low unless you or the person who stole your work has a financially successful site.

I called the Copyright Office yesterday and was told that you can’t register posts that are released on different days as one work (though my experience is proof that you can) and you can’t register the same post as an individual work and as part of a larger work, (though I think there’s some wiggle room here).

So here’s my new stance – registering your blog content is not worth it for most people. The exception to this rule is you might want to register your work if you think it will be stolen by someone who can afford to pay potentially hundreds of thousands of dollars in damages and attorneys’ fees. If you’re in this boat, or think you might be, you should submit your application to the Copyright Office before you release the post on your site to ensure that your application will be in before any infringement can occur.

This is more proof of how behind the times the law is and that you can’t apply logic to copyright on the internet. I think it’s moronic that online content isn’t “published” when it’s released on the internet. I think this definition will change in the near future with so many publications switching from paper to being online only. As the law is written and applied the law seems unfair because it makes it harder for online writers to protect themselves.

There is a special copyright registration for “serial works” but so far the Copyright Office says blogs, including those that are released on a strict schedule like other serial publications, do not qualify. I think this is wrong and needs to be challenged.

For now, I’ve added a disclaimer to my ebook on Amazon that states that the copyright registration chapter is inaccurate and will be updated this summer. I hope to add the revised chapter to the book in the next month once it gets through legal review and editing.

FAQs about the Legalities of Social Media

Carter Law Firm's Official Postcard - let me know if you want me to send you one.

Carter Law Firm’s Official Postcard – Let me know if you want me to send you one.

I had the pleasure of speaking at the Public Relations Society of America’s Western District Conference last weekend. I led two sessions: “So you want to do a flash mob” and “The Legal Side of Blogging: 10 Questions to Ask Before you Hit ‘Publish.’” Both sessions were great and I wanted to share some of the frequent questions I get when I talk about the legalities of social media.

What should you do if you’re outsourcing your blog content?
You need a kick ass contract that clearly states who owns the copyright in the content that is created. If the hiring company obtains copyright, does the blogger get permission to put a copy of the work in their portfolio to obtain other work? The contract should also state who is responsible if there are any problems related to the work (i.e., copyright infringement claim) or if there are any disputes related to the contract.

What should you do if you want to use a photo from a company’s site, such as if want to write a positive review of their company?
There’s a chance that using the photo could qualify as fair use; however it’s probably best to avoid the possibility of being hit with a copyright infringement claim by asking the company if you can use their photo. You never know who owns the rights to an image and if there are any restrictions related to using it.

What’s the worst case scenario if you use an image from Google Images without verifying that it was available for use with a Creative Commons license or had been released to public domain?
You could be sued for tens of thousands of dollars for copyright infringement. I always say that just because someone sues you that it doesn’t mean they’re going to win, but in this case, they might. You can still be sued and lose even if you didn’t mean any harm.

I get permission to use every photo on my blogs or use photos that are available under Creative Commons licenses that allow me to modify and commercialize each image.

What if you’ve been using Google Images or you haven’t kept track of what images you’re allowed to use?
Probably no one wants to hear this, but I’d rip every image out of your site and start over, making sure that you own or have permission to use every image on your site.

These are my rules of thumb when it comes to social media:

  • Assume everything you post online will be seen by your best friend, your worst enemy, your boss, and your mother. If you’re not ok with one of those people seeing what you want to say, don’t post it.
  • Don’t post anything online that you wouldn’t put on the front page of the newspaper.

For more information about the legalities of social media, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

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Sending a Bill When Someone Steals Your Work

Mushroom? by Oslo in the Summertime from Flickr

Mushroom? by Oslo in the Summertime from Flickr

I’m a member of a Facebook group for people to discuss and share instances where other people use their work. Most of the members are nature photographers who do gorgeous work. Most of them have no desire to sue people who steal their work, but they would like to be compensated. And some of them are getting pissed when they find that someone has stolen their work and have started sending bills to people who use their work without permission.

This isn’t a bad idea. I’ve had a friend get a bill in the mail when he used someone’s photograph without permission that he found via Google Images. You can view it here or below.

When someone comes to me and wants to send a bill to anyone they discover is infringing on their copyrights, I suggest they add information to the website where they show their work about licensing terms and fees. This makes it more credible when the artist sends a bill that essentially says that by using a photograph, the infringer has agreed to pay the fee and abide by the license’s terms. As long as the infringer complies, they are no longer committing copyright infringement.

The downside of this strategy is many people will ignore such a bill if they receive one. Then the question for the artist is “What’s next?” Do you sue them? Send a DMCA takedown notice to get the work taken off their site? Call them out publicly for using your work without permission? Do you drop the issue?

My friend who got the bill for using an authorized image earlier this year got a bill from a company with a track record of suing people who don’t pay the bill and winning. In his case, he choices appeared to be pay the bill (or try to negotiate a lower price) or get sued. If you don’t follow up when people don’t pay the bill, it’s kind of like the photoradar tickets. If you get one in the mail, you can deal with it by paying the fine or going to traffic school or avoid service for four months until the court drops the charge.

I’m not one to tell people what they should do, but I advise people to think their plan of action all the way through before selecting a course of action. If you need help deciding what’s the best strategy for protecting your copyrights, please contact a copyright attorney in your community.

For more information about copyright and blogs, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Update on Registering the Copyright in your Blog

Library of Congress by ctj71081 from Flickr - Where your work goes when you register it with the U.S. Copyright Office.

Library of Congress by ctj71081 from Flickr – Where your work goes when you register it with the U.S. Copyright Office.

I’ve been a proponent of registering your copyright in your blog every three months. The federal Copyright Act states you must register the copyright in your blog within three months of publication or one month of learning of the infringement, whichever happens first.

So every three months (March 31st, June 30th, September 30th, and December 31st) I have a note on my calendar to register my blogs. I take all the content I’ve added to my blog since my last registration, create a PDF, and register it.

I made a mistake on my last copyright application.

I let logic dictate my action and I claimed that my publication date was December 31, 2013 on my last application. I should have said that my word was “unpublished.” If I declare that my work is published, I have to register each post individually. If the work is “unpublished,” the dated posts can be registered as a group.

You would think that putting something on the internet counts as publishing a work, but it doesn’t. In the Copyright Office’s words, “For copyright purposes, ‘publication’ means the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display is also ‘publication.’ The following do not constitute “publication:” the printing or other reproduction of copies, a public performance or display of the work, or sending copies of the work to the Copyright Office.”

If the only place you put your content is on your blog, it’s likely not published. If you repurpose your content in multiple locations, it might be. (Talk to a copyright attorney to see if you’ve “published” your work.)

The downside of blog content not counting as published is you have to register you work prior to it being stolen to be eligible for statutory damages under the copyright laws. So the idea a lot of my copyright attorney friends and I believed about registering every three months is not a good strategy. Also, the Copyright Office doesn’t like it when you register posts that were released on different days as a single work. Experience tells me that they’ll let you do it, but if they know that’s what you’re doing, they’ll tell you that you have to register each post individually.

Because of this, the best strategy for people who want to be able to sue for copyright infringement if their blog content is stolen is to register your work before you put a post on your site. Yes, this will be more expensive because each post will need its own registration, so you might want to only register the posts you think will be stolen, and even then you may want to only register the posts that you think will be stolen by someone who can afford to pay the damages assessed by the court and your attorneys’s fees. Otherwise you might be better off not suing for copyright infringement and sending a cease and desist or a DMCA takedown notice.

If someone steals your work, you should talk with a copyright lawyer ASAP. Even if you didn’t register you work before the infringement occurred, you may be in a situation where it is worthwhile to pursue actual damages which is how much money you lost and the alleged infringer made because of the infringement. They can also discuss other ways to address infringement that don’t involve the court system.

For more information about copyright and blogs, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

DMCA Abuse

Copyright license choice by opensourceway from Flickr

Copyright license choice by opensourceway from Flickr

The Digital Millennium Copyright Act (DMCA) is part of the copyright law. Its purpose is to protect people who provide online forums but don’t control the content people post to them – like YouTube and Pinterest. If they receive a notice that material on their site is allegedly copyright infringement, they must remove it. This law gives content creators a way to react to copyright infringement when someone posts their work online without permission. Instead of sending a cease and desist letter to the person who stole their work, they bypass them and deal with the infringer’s webhost instead.

Lately, I’ve seen a few instances where people have been improperly using the DMCA to get material removed from the internet that they don’t like. I’m starting to refer to these acts as DMCA abuse.

1. Using the DMCA to address TM Infringement
The DMCA should only be used for copyright issues – when you suspect someone is using your original content without your permission. Don’t use it to removed suspected instances of trademark infringement.

In a recent incident, GoPro allegedly sent a DMCA takedown notice to DigitalRev’s webhost to remove a picture of its camera from the site. The photo was in article that compared GoPro against another camera. GoPro didn’t think DigitalRev copied their content, but that they were using a picture of the camera that had the wrong branding. GoPro should have sent DigitalRev an email with a correct image of the camera instead of getting the whole article pulled for alleged copyright infringement.

2. Using the DMCA to Eliminate the Original
This story really bothered me. Somebody copied someone’s original content onto their site, and then used the DMCA to claim that they were the real owners and get the original removed for its site. Thankfully the original author could get their work put back on their site by sending a DMCA counter takedown notice.

Apparently this is a common incident. This behavior was so disturbing, I had to make a video about it.

If you think you have questions about how you, your brand, or your content is being used online, please consult an intellectual property attorney. Don’t just send a DMCA takedown notice – that may not be the right tool to address your problem. When you send a DMCA takedown notice, you attest under the penalty of perjury, that your statements are true. If you send a DMCA takedown notice and it turns out what you did qualifies as what I call DMCA abuse, you may have committed a crime.

For more information about copyright, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Using Google Image Search to Detect Copyright Infringement

Google Image SearchI heard you can input a picture into the Google Images search engine to see if someone has stolen or used one of your pictures without your consent. I decided to try to figure it out to see if it works.

I’m happy to report it’s super easy. Here’s how you do it.

  1. Go to the Google Images search page.
  2. Click on the camera icon on the far right of the search bar. This will bring up the “search by image” box.
  3. Paste the URL for the image you want to search for or upload it and hit “Search.”
  4. The results will show you every instance where someone has used that photo.
My paintball wound - Photo by Merlz Tamondong

My paintball wound – Photo by Merlz Tamondong

I started looking for images I’ve used on The Undeniable Ruth and I found an instance where someone pulled an image off my site without my permission. It’s a picture of me from Ladies’ Paintball Night. Someone put it on a paintball forum without asking me first. Even though this is a picture of me, I don’t own the copyright in it so there’s nothing I can do to get it removed, and to be honest, I don’t really care.

This search engine is one tool you can use to search for copyright infringement, but it won’t catch every copy of your photos, just the copies of the photos from your site. I know this picture of my dog Rosie is on my site and I shared it with Attorney at Work for a post I wrote for them. I didn’t give them a copy of the image off my site, so when I searched for this picture of Rosie, it only showed images from my site, not theirs.

My sweet Rosie dog

My sweet Rosie dog

If you’re worried about people stealing your work from your site, keep an eye on your analytics. A lot of people think it’s ok to use an image off your site as long as they give an attribution and a link to the source. All they may have done is committed copyright infringement and told you about it. I’ve discovered two instances of copyright infringement of my work this way.

If you create any type of content and you’re concerned about copyright infringement, please consult a copyright attorney in your community who can help you create and implement a strategy to protect your work.

For more information about copyright, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can connect with me on TwitterGoogle+FacebookYouTube, LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Can I Publish an Email in a Blog Post?

Letter of Intent by Nick Ares, Ruth Carter, Carter Law Firm

Letter of Intent by Nick Ares

My friend in California recently contacted me and said that he received an email from a professional association he belong to and that he wanted to share it in a blog post along with his response. As an Arizona attorney, I can’t provide legal advice to California clients, but it made me think about what potential legal repercussions I could face if I wanted to publish an email in a blog.

Defamation
Defamation usually involves making a false statement about a person or entity to a third party that damages their reputation. Publishing a blog post is definitely a communication to a third party, but there’s no false statement if you publish the email as it was written and if your response contains your true reaction to the message.

Public Disclosure of Private Facts
Public disclosure of private facts is an invasion of privacy claim where you tell the truth about a person but you release information that a reasonable person would expect you to keep confidential and they would be highly offended if you shared it. This is the type of claim you could face if you break up with your significant other and release the sex tape you made during your relationship.

In terms of publishing an email I received, I’d review the message and the association’s rules to see if communications need to be regarded as confidential. If not, I probably wouldn’t hesitate to republish it in a blog because there’s probably nothing in it that would be high offensive to share with others.

False Light
False light is a claim where you’re accused to telling the truth about someone but you manipulate it in a way that suggests something that is false. If I were going to republish an email, I’d probably publish the entire message to avoid being accused to manipulating the message to make the person look worse than they are.

These legal claims are all state law claims. If I publish an email written to me by a person or on behalf of an organization and they get pissed at me, they’re going to sue me where they live. I’d have to check the exact verbiage of these laws in that state, not just my home state. I prefer  to not set myself up to be sued across the country and have to go there to defend myself.

EDIT: My lawyer friend reminded me of one more claim you have to think about if you’re going to publish an email in a blog post: Copyright Infringement.
The person who wrote the email likely has copyright rights in their verbiage, include the right to decide where it’s reproduced and displayed. Most people don’t register their copyrights with the U.S. Copyright Office, so if you wait three months to publish your blog post, they can only come after you for their actual damages, which will probably be lower than statutory damages. In some cases, they could still get a decent settlement.

And as always, if you’re going to push the envelope with your blog posts, it’s easier and cheaper to consult a lawyer (like me!) in advance than to have to hire one after you’ve been sued and you have to defend yourself.

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