Can I Publish an Email in a Blog Post?

July 5, 2012 by 16 Comments
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.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, Legalities of Blogging Tagged With: , , , , , , , , , , , ,

I <3 The Oatmeal

June 28, 2012 by Leave a Comment
Oatmeal Porridge by Alpha

Oatmeal Porridge by Alpha

I want to use this week’s post to voice my support for Matthew Inman, aka The Oatmeal. He draws comics that make me laugh so hard, especially the ones about real life situations. I can always count on him to lift my mood. I saw him at his book signing at Changing Hands in Tempe, and he’s the sweetest guy.

Matthew Inman by Gary BarberFor those of you who haven’t been following the story, Oatmeal was recently threatened with a lawsuit if he didn’t pay FunnyJunk LLC $20,000. FunnyJunk is a website where people can post humorous photos and it apparently it was hosting hundreds of Oatmeal’s images in violation of his copyright. Oatmeal wrote a post about what was happening and accused FunnyJunk of making $100,000+ off his work. FunnyJunk claimed this was a false accusation of willful copyright infringement.

Some people might be been scared by the threat of a lawsuit, but not Oatmeal. He published an awesome blog where he refused to pay the $20,000 and instead announced that he’d try to raise $20,000 for charity in a venture called Operation BearLove Good, Cancer Bad. Oatmeal ended up raising over $200,000 for charity and was sued by FunnyJunk’s lawyer in the process. Hopefully that case will be dismissed soon and Oatmeal can disseminate the funds.

As a lawyer I initially cringed when I saw Oatmeal’s plan, but I was relieved when I saw that he has an awesome lawyer who appears to be doing the appropriate lawyer things on Oatmeal’s behalf. I think Oatmeal’s grace and strength in the face of adversity is admirable. I think if you feel you’re being unjustly accused of a wrongdoing, you should stand up for yourself and not do whatever you have to do to make the threat go away. I applaud Oatmeal for addressing this situation very publicly and showing his opposition a lot of respect.  When Oatmeal’s fans starting calling FunnyJunk’s lawyer, he told them to stop and to donate to Operation BearLove Good, Cancer Bad if they wanted to help.

Much love to you Oatmeal! Thank you for demonstrating the power and influence you can use for good when you build a solid following by doing excellent work. Your hilarious comics and charming personality made you what you are and I’m so glad you didn’t back down from this fight. I hope your legal troubles are resolved soon.

Filed Under: Geek Law, Intellectual Property, Legalities of Blogging Tagged With: , , , , , , , ,

Phoenix Comicon Badge Art Being Ripped Off

June 21, 2012 by Leave a Comment
Phoenix Comicon 2012 Badge Ruth Carter

Picture from my 2012 Phoenix Comicon Badge

I recently wrote a post about copyright, fair use, and fan fiction and I did an analysis of Marty Freetage’s artwork that was on the badges for Phoenix Comicon this year. It was an awesome parody of Angry Birds and The Avengers. Parodies are generally permissible under the fair use doctrine and I thought Marty’s work was original enough that the copyright holders for Angry Birds and The Avengers probably wouldn’t come after him or Phoenix Comicon for copyright infringement.

Shirt on Gabilife.com

This week I was surprised to see a t-shirt for sale on Gabilife that looks exactly like Marty’s picture. A lot of people on Facebook posted that Gabilife used Marty’s work, changed the background, and stuck it on a shirt. Whoever owns the copyright in the badge art has good reason for believing that their Gabilife is infringing on their work.

This story gets more complicated by Gabilife claims to be a company in India. It raises the question of what are the possible recourse options to make them stop selling the shirt. If they have a presence in the United States, whoever owns the copyright could go after Gabilife for infringement as if they were a US-based company.

Gabilife’s terms state “Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider’s Designated Agent.” I searched the agent list on the US Copyright website and I didn’t see a listing for Gabilife or Gabi. That makes me wonder if they just copied someone else’s terms and conditions without registering an agent.

If owned the copyright for the original badge art, I’d register the copyright in the artwork immediately. A copyright holder maximizes their options for recourse if they register their copyright within 3 months of publication or 1 month of learning of the infringement, whichever happens first. If this art hasn’t been registered, that window could still be open.

If the work was registered in time, I’d sue them for copyright infringement if it was a US company. If the company doesn’t do business in the US, there’s probably no point to suing them. If suing them would be pointless, I’d either send a DMCA takedown notice to the email address listed on their site and to their snail mail address. If I wanted to be really bold, I would send them a licensing agreement and a bill that states that they agreed to the licensing agreement by using the artwork without permission.

I wouldn’t expect them to pay me, but it would be validating.

So what is the take away message?

  1. Register your copyrights shortly after creating an original work, especially when you’re as awesome as Marty.
  2. If you suspect someone is ripping off your work, contact a copyright attorney in your community (like me!) to help you strategize and execute your response.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

 

Filed Under: Geek Law, Intellectual Property Tagged With: , , , , , , , , , , , ,

Register Your Copyrights

June 14, 2012 by 6 Comments
Poor Frog & Macrograpy by Hamed Saber Ruth Carter

Poor Frog & Macrograpy by Hamed Saber

I frequently get questions from people claiming that someone copied a photograph that they own and republished it without their permission. They want to know what their options are for financial recourse. I start by asking them two questions.

  1. When did you take the photograph?
  2. Did you register your copyright?

Most of the time the photograph in question was taken years ago and the photographer didn’t register their copyright.  The majority of artists know that they get exclusive copyright rights the second they create their work in some tangible form, but most of them don’t know that they have to register their work with the U.S. Copyright Office to maximize their protection and options for recourse when someone steals or illegally uses their work.

By creating an original literary, visual, or audiovisual work, you get the exclusive rights to copy, distribute, display, perform, and make derivative works of the original work. When and whether you register your copyright determines how much you might collect if someone violates your rights.

The Copyright Act says you must register your work within 3 months of publication or 1 month of learning of the infringement (whichever happens first!) to be eligible for statutory damages and attorneys’ fees. Statutory damages is money the court can require the infringer to pay you regardless of how much money you lost because of the infringement. If the court decides that the infringer knowingly and willfully stole your work, they can order the infringer to pay you up to $150,000 per violation plus the cost of your attorney!

If you don’t register your copyright within 3 months of publication or 1 month of learning of the infringement, you can only collect your actual damages. This is the amount of money you lost because of the infringement and/or what the infringer earned by copying your work. There are times when your actual damages is $0 because you didn’t lose any money and the infringer didn’t make any money due to the infringement. If you had registered your work within the time frame stated in the Copyright Act, you would have been eligible for statutory damages and attorneys’ fees regardless of our actual damages.

It’s frustrating when I have to tell clients and friends that their options for financial compensation are few or non-existent, because it’s a preventable problem. You can register a copyright electronically online for as little as $35. You can register multiple photographs with one registration application and fee. If you are a professional photographer, you can register each photo shoot with one copyright. Whenever you finish the final product from a shoot, which I suspect is within 3 months of the shoot, take a few minutes to register your work with the U.S. Copyright Office. You can even pass the cost of registration onto your clients by raising your fees $35.

Registering a copyright is fast and easy, and you can do it yourself if you don’t want to a pay a lawyer to do it for you. If doing it by yourself the first time scares you, hire a lawyer to walk you through the process. It doesn’t take much time or money to maximize your protection , so do it.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, Photography & the Law Tagged With: , , , , , , , , , , , , , , ,

What’s Up with the Disclaimers on Facebook?

June 7, 2012 by 4 Comments
Avisados by Daniel Lobos, Ruth Carter

Avisados by Daniel Lobos

I’ve had multiple people ask for my take on the following disclaimer that lots of people are posting on their Facebook timelines:

Warning: Any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated websites, you do NOT have my permission to utilize any of my profile information nor any of the content contained herein including, but not limited to my photographs, and/or the comments made about my photographs or any other “art” related posts on my profile. You are hereby notified that you are strictly prohibited from disclosing, copying, distributing, disseminating, or taking any other action against me with regard to this profile and the contents herein. The foregoing prohibitions also apply to your employee(s), agent(s), student(s) or any personnel under your direction or control. The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law.

UCC 1-103 1-308 ALL RIGHTS RESERVED WITHOUT PREJUDICE

Apparently people think that rules regarding others’ use of their information and intellectual property changed when Facebook became publicly traded and that posting this disclaimer will prevent others from using their photos and other information contained in their profiles. I hate to burst your bubble, but it doesn’t.

When you signed up for Facebook, you agreed to the terms of the site. The fact that Facebook is now publicly traded doesn’t change anything related to how Facebook can use your information that you willingly posted to your profile.

The current Facebook terms state that you gave Facebook a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any [intellectual property] content that you post on or in connection with Facebook.” This license ends when you delete the information from your profile. So if you don’t want Facebook to use any of your information or photographs, delete them.

Posting this disclaimer will have no effect. By using Facebook, you continue to agree to abide by the terms of the site. If you read Facebook’s terms and conditions, you will notice that there’s no provision that says you can change the terms. Your options are to accept the terms and keep using the site or to delete everything on your profile and stop using Facebook. You can’t manipulate the terms to get what you want this time.

If you want more information about this issue, check out the Snopes page on this topic.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, News Tagged With: , , , , ,

Fan Fiction, Copyright Law, and Fair Use

May 31, 2012 by 4 Comments
Phoenix Comicon 2012 Badge Ruth Carter

My 2012 Phoenix Comicon Badge - Artwork by Marty Freetage and Bill Farmer Color

I spoke at Phoenix Comicon last week on fair use and fan fiction. I had a great group of people in my audience with who had ideas of turning novels into graphic novels and who wanted to know more about the legalities of things like the Phoenix Comicon badges. This year’s badge featured a parody of Angry Birds and The Avengers.

Speaking at Phoenix Comicon 2012, Ruth Carter photo by Devon Christopher Adams

Speaking at Phoenix Comicon 2012, photo by Devon Christopher Adams

Fair use is a defense against claims of copyright infringement. What generally occurs in these situations is you use someone else’s work in a project, the original copyright owner sues you for copyright infringement, and you respond with an argument that you used the copyright owner’s work but that your use was transformative enough to qualify for protection under the fair use doctrine. The court considers four factors to determine if your use of another’s work is protected by fair use.

  1. Purpose and character of your use of another’s work
  2. Nature of the copyrighted work
  3. Amount and substantiality of the copyrighted work used
  4. Effect on the market

These cases are evaluated on an individual basis. There’s no mathematical equation to determine if you’re protected by fair use. The main factor the court considers is whether your work becomes a substitute for the other person’s work. Parodies are generally transformative enough to qualify for fair use. Let’s look at the fair use factors in regards to the Angry Birds/Avengers badge.

  1. Purpose and character: Phoenix Comicon is a commercial venture, but attendees are paying to attend the con, not specifically to buy the art on the badge.
  2. Nature of the copyrighted work: Both Angry Birds and The Avengers have been previously published. One is a game, the other is a movie. The original copyright owner is generally favored if the work was not previously published.
  3. Amount and substantiality used: The looks of the birds and the Avengers were copied. The looks of both were required for the audience to understand the parody.
  4. Effect on the market: It’s unlikely that someone will seek out Angry Bird art or Avenger art and accept this as a suitable substitute. No one will use this picture as a substitute for the video game or the movie.

Was this badge protected by fair use? Probably, but I’m not a judge and it’s not my call to make.

When it comes to fan fiction, an artist isn’t going to get in trouble if the copyright owner doesn’t know about your work or if they don’t mind that their fans create their own work. If you’re really worried about getting in trouble, you can always ask the copyright owner for permission or a license to use their work.

Fan fiction and fair use are fact specific issues. When in doubt, consult an attorney.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Geek Law, Intellectual Property Tagged With: , , , , , , , , , , , , ,

Creative Commons Images For Your Blog

May 24, 2012 by 12 Comments

Question Mark by Ryan

I talk about blogging a lot, both about general blogging information and the legal side of blogging. One of the things I always talk about is the images. Every blog post needs at least one picture. It makes the post more interesting and it can help you portray your subject matter or the emotional impact of your message.

I am not a photographer, so I have to rely on other sources for my photos. If you don’t have a photo that you yourself have taken to use with your post, you can find quality images on Creative Commons. Creative Commons is a license that photographers put on their images that allow you to use them. The particular license tells you how you’re allowed to use it and what credit you have to give to the image owner.

Attribution only – You only have to give credit to the image owner. You can modify the image and use it for   commercial purposes

Attribution-ShareAlike – You may modify the original work and use it for commercial purposes, but you must allow others to use your work in the same way. You must give an attribution to the original image owner.

Attribution-NoDerivs – You may use the image for commercial purposes but you can’t alter the image in any way. You must give credit to the image owner.

Attribution-NonCommercial – You may modify the original image but you may not use it for commercial purposes. You must give an attribution to the image owner.

Attribution-NonCommercial-ShareAlike – You can modify the image but you must allow anyone to use what you create. You can’t use it for commercial purposes and you must give credit to the image owner.

Attribution-NonCommercial-NoDerivs – You may only use the image, as is, for non-commercial purposes. You may not modify the image, and you must give an attribution to the image owner.

When I look for photos for my blogs, I always pick photos that come with an Attribution only or Attribution-ShareAlike license, and I encourage everyone to do the same. When I add a photo to my blog, I put the name of the image and the attribution to the image owner in the caption, and make the caption visible on the post. In the image description, I include a link back to the original image, which is usually on Flickr.

I use these license because they are the most user-friendly. If you need to crop a photo, these licenses will allow you to do that. I also recommend always using photos that you’re allowed to use for commercial purposes.  Even if you don’t make money on your blog from ads or by having you blog connected to a business now, you might in the future. If you start making money via your blog and you have images on your blog that you’re not allowed to use for commercial purposes, you have to go back and remove those images from your site. It’s easier in the long run if you have permission to commercialize all of your images from the start.

If there’s an image you really you want to use on your blog, but it doesn’t come with a Creative Commons license, you can always ask the image owner if you can use it. I have standing agreements with Devon Christopher Adams and Sheila Dee because I ask to use their photos so often.

Filed Under: Intellectual Property, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , ,

Phoenix Comicon Preview – Fan Fiction and Copyright Law

May 17, 2012 by 1 Comment

Superman vs. Hulk by JD Hancock

I am so excited for Phoenix Comicon, coming up Memorial Day weekend at the Phoenix Convention Center. It’s the 25th anniversary of Star Trek: The Next Generation, and a lot of the cast is going to be there. I’ve been a card-carrying Trekkie for almost 20 years and The Next Generation was the show that started it all for me.

I’m also super excited that I’ve been invited to speak at Phoenix Comicon this year. My talk is on Thursday evening at 7pm in room 127A of the North Building. The organizers gave my talk a really fancy name, “Adapting Licensed Properties to Comics,” but don’t let that confuse or scare you. I’m going to be talking about how copyright law applies to fan art, fan fiction, and slash fiction. We can also get into issues about sci-fi or comic inspired tattoos, and any other copyright topics we have time to cover.

I think fan art and fan fiction is fantastic and should be encouraged because it makes us keep falling in love with our favorite comics and shows over and over again. But if you create your own sci-fi or comic inspired art work or fiction, you should know about the copyright implications that apply to you. I’m going to talk about how fair use works and I’m going to tell a story about how an independent artist was able to create a Wizard of Oz decorative plate and copyright it. It can be done – if you know how to do it right.

My talk has the benefit of being right before the Semi-finals of the Phoenix Ultimate Geek Smackdown (PUGS). Come see me on Thursday at 7pm and stay for PUGS in room 121 at 8pm!

Here’s the recap:
Who: Me
What: Speaking at Phoenix Comicon – “Adapting Licensed Properties to Comics” – aka Copyright and Fan Fiction
Where: Phoenix Convention Center, North Building, room 127A
When: Thursday, May 24th – 7pm

Filed Under: Geek Law, Intellectual Property Tagged With: , , , , , , , , , , , ,

The Risk Of Not Registering Your Trademark

May 10, 2012 by 14 Comments

Kitty Your Ad Here by Shannon Kringen

If you’re a small business owner you probably created an LLC. You may have even registered your trade name with the Secretary of State. A lot of small businesses don’t see the value in registering their trademark with the United States Patent and Trademark Office (USPTO). If you register your mark with the USPTO, you can prevent anyone in the country from using your mark in their business in a confusingly similar way.

If you’re a local business, you may question the value in being able to claim your trademark in all 50 states. The question you should ask is, “What do I risk if I don’t?” Let me tell you a story.

The Finer Things in Life by comedy_nose

The first Burger King restaurant was little place in Mattoon, Illinois. It looks like a mom and pop restaurant. They didn’t register their trademark with the USPTO. After this Burger King opened, the Burger King franchise as we know it was created, and they registered the Burger King trademark with the USPTO. The original Burger King was allowed to continue doing business, but it’s limited to its existing market, which is a 20-mile radius around the restaurant. Burger King franchises can be everywhere else in the United States and the original Burger King can’t expand beyond the 20-mile boundary.

If you have a small business and you have plans to expand, you want to be the first to register your trademark, because if you don’t, you might find yourself being boxed into a limited area if your competition registers the mark. Even if you don’t have plans to expand much, you want the ability to take advantage of a golden growth opportunity if it comes along. If your competition registers their mark first, you might find yourself in a situation where you have to change your name and rebrand yourself to be able to expand your business.

New businesses put hundreds, and sometimes thousands of dollars in branding themselves. Ideally, you should decide what you want your trademark to be, check the USPTO to make sure no one is using your desired trademark, and consult a trademark attorney about registering the mark for your business. You may not be growing by leaps and bounds today, but you don’t want to find yourself in a situation where that’s not possible for you or only an option if you spend hundreds of hours and thousands of dollars rebranding yourself.

Filed Under: Intellectual Property Tagged With: , , , , , , , ,

When Can Someone Post Photos Of You Online?

May 3, 2012 by 253 Comments

My Camera by Paul Reynolds

I’ve had a few people ask me about the legalities of posting pictures of other people online. I thought I’d tackle the most common issue with photographs – whether you have a reasonable expectation of privacy. I’m not going to get into commercializing a person’s image or misrepresenting a person. I’m only addressing whether someone can post a picture that they took of you on their Facebook page, blog, Flickr, etc.

No Pants Light Rail Ride 2012 by Devon Christopher Adams

Pictures of You in Public
You have no expectation of privacy in anything you do in public. This includes where you go and what you do while you’re there. For example, I just got an adorable basset hound named Rosie. We take walks every day. I have no expectation of privacy regarding where we walk, what I’m wearing when I walk her, or how I react when she pulls on the leash. That’s all in plain view for everyone to see. Anyone can take a picture of us and post it online, preferably with a caption that says, “Sassy lady and her awesome dog,” and there’s nothing I can do about it (as long as they’re not misrepresenting me or commercializing my image without my consent).

If you’re in a public place and someone snaps a picture of you while you’re falling down drunk, getting arrested, picking your nose, scowling at a crying baby, or not wearing pants, there’s probably nothing you can do if that picture shows up online somewhere.

The exception to this rule is you have an expectation of privacy in places like public bathroom stalls, changing rooms, tanning salons, and doctor’s offices that may require you to be partially or completely undressed.

Pictures of You in Private Venues
When pictures are taken of you at a private event or in someone’s private home, you have to ask whether you had an expectation of privacy in each particular situation. If you attend a party where there are no rules regarding photos and everyone has their cameras out, you have no expectation of privacy if someone takes a photo of you and puts it in their online album.

Some events come with ground rules regarding photos that could create an expectation of privacy. I had a friend in college who had a Decorate Your Nipples theme party where everyone had to decorate their chest. Some people put decorations on their shirts and some people opted to decorate their skin. The rule for that party was that no cameras were allowed except during the designated picture time. At picture time, all the photos were limited to one room. If you didn’t want any photographic documentation of your being at that party, you had to go to the no-camera room.

There may be activities where there are no specified rules about photographs, but where the nature of the event or activity gives you an expectation of privacy. For example, if you and your partner make a sex tape or take intimate pictures of each other, there’s an inherent expectation that no one beside you two would see them. If you break up, your partner can’t post the pictures online and protect themselves by saying that you never agreed to keep them private.

When it comes to the question, “Can I post pictures of other people online?,” the answer is always, “It depends.” My general rule of thumb is “Don’t do anything in public that you wouldn’t put on the front page of the paper.” When it comes to photographs, the same rule generally applies because you might end up in a situation where you had an expectation of privacy but someone posted a picture of you online that they shouldn’t have. You might have a case against the jerk who posed it, but you still have to deal with the possibility that a lot of people saw a photo of you that they should have never seen.

If you want more information about the legal rules regarding social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. I also maintain a mailing list where I share my thoughts about being a lawyer/entrepreneur, updates about projects I’m working on, upcoming speaking engagements, and I may provide information about products, services, and discounts. Please add yourself if you’re interested. You can also contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

Filed Under: Cyberbullying & Cyberharassment, Intellectual Property, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , ,
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