As laws around blogging change – and as new bloggers explore working with brands or practicing investigative journalism – the need is ever greater to understand the legal implications of everything from copyright to fair use to FTC guidelines.
This excellent panel of attorneys was a session at BlogHer; it was moderated by award-winning writer and BlogHer.com contributing editor Lisen Stromberg, “PrismWork.” The attorneys – all bloggers – included Divya Jayachandran, “Heavy Browsing,” Lindsay LaVine, “Ehilarity,” and Liza Barry-Kessler, “Liza Barry-Kessler.” The speakers also put together a guide to resources on blogging legal issues, which you’ll find at the end of this post.
Panelists noted up front that they weren’t providing legal advice; instead the session was designed to help bloggers learn about issues they might encounter.
Buy Your Domain
Purchasing the rights to your blog’s domain name is a small investment per year, the attorneys noted, whereas trying to recover your domain name if someone else snaps it up or you let your rights expire can be “time-consuming, expensive and frustrating,” said LaVine.
If someone has purchased the URL for your blog, LaVine recommended using one of the Who Is registries, available from most domain providers (GoDaddy, Register, Network Solutions, etc.), to find out whom you’ll need to contact. Trying to recover your domain name can be as simple as sending a letter requesting the URL be surrendered to you. If they refuse, you can request an ICANN dispute resolution or file a lawsuit (the expensive, time-consuming options).
It’s easier to pay your money – even several years before you build your site or start blogging – and put renewal reminders on your calendar, than lose your rights to the name you want to build your brand around.
Right of Publicity and Copyright
Right of publicity has to do with using someone else’s name or likeness for business purposes. There have been some famous cases, involving Johnny Carson (over “Here’s Johnny” port-a-potties) and Bette Midler (a sound-alike case over a car commercial), but individuals have right of publicity just as celebrities do. The laws vary by state. The best way to protect yourself, said LaVine, is to ask permission, or post signage at crowded events noting that photos will be taken, before using someone’s likeness in a blog, photo site or publication.
Copyright involves created work, whether text-based, drawings or photographs. “Trademark and copyrights are easy to confuse,” Jayachandran commented. “The trademark is a logo, something that tells you the source of goods or services, while copyright helps you protect something you’ve created.”
Trademarks can be registered (the “circle-Rs” you see after brand names), but you don’t need to. “You have common law rights when you start using a logo or tagline,” said Jayachandran. “The important thing is to use it and use it consistently. It always should be the same logo and the same wordmark (tagline).”
If you find someone using your logo, tagline or other creative work, “you don’t need to be a lawyer or hire one,” said Barry-Kessler. You can contact them yourself. Sometimes the usage is fairly innocent – a fan of the work – and you can agree to leave your work on their site, as long as they provide accurate attribution. Others are using your creative work to make money, “and those are the ones you need to send take-down requests to,” she said. However, if an overseas entity steals your trademarks, U.S. law does not apply, and there’s little you can do outside of hiring an attorney.
Sharing Creative Work
The smartest way to secure your creative content is to post a policy that communicates to your readers how or whether they can use your work. Some readers may not bother with a separate page that provides these details, said Jayachandran, so include your usage rule on individual posts.
If you’re eager to share, noted Barry-Kessler, “Creative Commons is a privately developed way of licensing content that other people can reuse. You can specify different conditions for each item, which gives you a level of control.”
Likewise, if you need an image, you can search a site like Flickr for Creative Commons, explained LaVine. “There are people who want their work out there; just pay attention to and follow the restrictions on usage.”
Recipes, said Barry-Kessler, “are specifically excluded under copyright law. What’s excluded is the list of ingredients and the instructions.”
To prevent your hard work in the test kitchen from being stolen, Barry-Kessler advised, you need to “infuse your content with ‘substantial literary expression’ in order for it to become copyright protectable.”
That’s why, she explained, you’ll find recipes that tell you to “plunk potatoes into bowl” rather than “put” them in the bowl.
The bottom line for Pinterest and any other content that isn’t yours, said Jayachandran, “is always, always give credit to the originator and share a link that takes people back to the original source of the material. You don’t want to dam anyone’s revenue stream.”
The law doesn’t guarantee originators complete control over their work, said Barry-Kessler. Under the concept of fair use, copyrighted material can be used, provided it meets one of these four standards:
1) What is the purpose and character of secondary usage?
This standard allows some portion of copyrighted material to be used in an educational context or in parody.
2) What is the nature of the copied work?
In other words, you can’t attach your name to someone else’s original work and claim it as your own. In order to defend your right to use another’s work, you have to transform it from the original intention.
3) What portion of the copyrighted work is used?
Portions of songs, books, TV shows and movies can legally be used in reviews. A few lines from a book amounts to a small portion of the whole; contrarily, a few lines from a short poem could be considered too substantial. Also, sometimes a case may turn on which section of the material is used (see #4).
4) What affect does usage have on the market for the original work?
If you reprint the final chapter of a book and spoil the ending, it could harm the market for the original work and therefore usage would not be defensible.
How can bloggers protect themselves from accusations of libel (written defamation) or slander (spoken defamation)?
Understand the laws that govern this area, especially how it applies in your state, said the panelists.
LaVine noted that defamation is “a public communication that injures the reputation of a person. The definition can vary from state to state, but general embarrassment and hurt feelings aren’t enough to claim defamation. It must be a known falsity or reckless disregard for the truth.”
She said the following are defenses against claims of defamation:
- The truth – the statement, written or verbal, was factual;
- Opinion – such as a review or editorial;
- Unpublicized or private statements – something shared between friends and not broadcast for public consumption;
- Parody – satire is protected under the First Amendment.
Public figures, such as celebrities and politicians, must prove actual malice in order to obtain a judgment.
The panelists also observed that each state has a different definition of who is considered a journalist. It’s important for bloggers who cover current affairs and want to do exposé journalism to know how the law views their content by visiting the Reporters Committee for Freedom of the Press website or the Electronic Frontier Foundation.
“It’s important for bloggers to develop trust equity with our readers,” noted Jayachandran, “but we also have a legal obligation to be honest.”
In 2009, the U.S. Federal Trade Commission published guidelines for endorsements and testimonials that govern how bloggers disclose the work they do with brands. The goal is to protect consumers and enable them to make informed decisions concerning the products they read about.
“It’s illegal to disseminate false information,” said Jayachandran. “If you haven’t used a product you’re reviewing, you can’t say you have.”
Bloggers also can’t withhold information, such as the fact that they’re being paid by the company that markets a product they’re reviewing or that they’ve received goods in return for reviews.
All of the panelists recommended prominent disclosure statements on blogs. “You can’t put a link to a disclosure page way down at the bottom of your blog,” said Barry-Kessler. “That’s not enough for the FTC.”
Stromberg advocated including disclosures in the post itself, while Jayachandran suggested a static bar for the disclosure statement. (“I’m not a fan of putting disclosure statements on a separate page, because how often do people go there to read them?” said Jayachandran. “It needs to be clear and conspicuous on your site.”)
The following site can help bloggers draft a disclosure statement: www.disclosurepolicy.org.
Jayachandran also noted that disclosures need to be written for affiliate links and included as hashtags (#paidad) on Twitter. “Better safe than sorry,” she said. “Your readers rely on you.”
“On the positive side, it further legitimizes your brand,” said Jayachandran. “It shows you are honest with your readers. Make it positive.”
Barry-Kessler agreed: “It doesn’t have to be legalese. Make it witty and funny and in your own voice.”
You can follow the panelists on Twitter:
Lisen Stromberg @LisenStromberg
Liza Barry-Kessler @LizaWasHere
Lindsay LaVine @ehilarity
(Divya Jayachandran has a private account.)
The panelists offered the following guide to resources on blogging legal issues.
Resources List by Topic
World Intellectual Property Organization (WIPO): http://www.wipo.int/portal/index.html.en
ICANN Dispute Resolution: http://www.icann.org/en/help/dispute-resolution
Trademark (info and registration): http://www.uspto.gov
Copyright (info and registration): http://www.copyright.gov
Creative Commons: http://creativecommons.org/
Stanford Libraries Copyright/Fair Use: http://fairuse.stanford.edu/
Federal Government Guidelines: http://business.ftc.gov/documents/bus71-ftcs-revised-endorsement-guideswhat-people-are-asking/
Where To Find Help Online:
Cornell Legal Information Institute: http://www.law.cornell.edu/
EFF Legal Guide for Bloggers: https://www.eff.org/issues/bloggers/legal
Citizen Media Law Project: http://www.citmedialaw.org/legal-guide
First Amendment Project: http://www.thefirstamendment.org/
Reporters Committee for Freedom of the Press: http://www.rcfp.org
Free/low cost legal assistance (many offer workshops as well):
Berkeley Center for New Media: http://bcnm.berkeley.edu/
Lawyers for the Creative Arts (Chicago): http://www.law-arts.org
Boston Lawyers for the Arts: http://www.artsandbusinesscouncil.org/programs/volunteer-lawyers-for-the-arts.html
New York Volunteer Lawyers for the Arts: http://www.vlany.org
National List of Volunteer Lawyers for the Arts: http://www.law-arts.org/documents/MicrosoftWord-NATIONALVOLUNTEERLAWYERSFORTHEARTSupdated1.25.12_000.pdf