Blogging and Copyright Law: Things

to Think AboutEmily E. Campbell, Esq.

DUNLAP CODDING, P.C.

This presentation is © 2012 Dunlap Codding, P.C.This presentation should not be considered legal advice.

“Lawyer-ese”

Intellectual Property

The law protects all forms of intellectual property (IP) and includes:

Trademarks, service marks and trade dress; 

Patents;  Trade secrets; and ©

Sources of Copyright Law

U.S. Constitution - Article I – Sec. 8The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. 

Copyright Act of 1976, as amended

Effective January 1, 1978

17 U.S.C. § 101, et seq.  

What is protected by Copyright?

Copyright applies to “original works of authorship” that are “fixed in any tangible medium of

expression”

Literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work

What is protected by Copyright? Copyright never protects the “facts” -- only

the way the author has organized, selected, or arranged

The copyright owner therefore does not have the exclusive right to reproduce the “facts” in a work; only the way that he/she chose to select, organize or arrange those facts

Mango HaX0ring by slava

Toby resting by christhomson

What if there is no ©?

A copyright owners exclusive rights are automatic

Doesn’t mean that the work is “free” to use

Good practice to attach a copyright notice to your blog, images, and other copyrightable works

Who is the “Author?”

Ordinarily, the author is who you think it is

Joint authors own a copyright jointly

If the work was created by employee acting within the scope of his/her employment, the employer is the author

Oftentimes, the author is the owner, however, ownership can be transferred from the author to a third party.

Chiang Mai - Maetaman by ckmck

What does all this mean?

Owners can exclude others from:• reproducing the work• distributing the work to the public• creating a “derivative work” based upon

the work• performing the work in public• displaying the work to the public• transmitting the work by means of

digital audio transmission

Do Copyrights last forever?

No.

Works published prior to 1923 – Public Domain

Prior to March 1, 1989 Absolute mess ---- depends on number of factors

After March 1, 1989 70 years after death of author, or if work of

corporate authorship, the shorter of 95 years from publication, or 120 years from creation

The Good News

The stuff you create is protected by copyrights.

© 2011 Emily Campbell

The Good News

Copyrights will protect: Blog designs Artwork Text Any original work

of authorship.Metallic ballpen tips / biro Ballpen

Ballpoint pen in silver with handwritten random blue text on quad-ruled paper by

photosteve 101

The Bad News

The stuff other people create is protected by copyrights.

Unauthorized use of another’s copyrighted material may place you at risk: Financial jeopardy Reputation Criminal Penalties

Money by AMagill

More Bad News …

Fine print

Digital Millennium Copyright Act (DMCA) Complaints

Creates a “safe harbor” immunity from copyright liability for service providers who “respond expeditiously” to notices claiming that they are hosting or linking to infringing material.

You can counter-notify

Bad News …

… Company XYZ is never willing to resolve copyright infringement and unauthorized use claims for the same amount as the base licensing rate … it would encourage unauthorized use because there would be no real disincentive to getting caught.  Moreover, that approach fails to take into the significant costs incurred by Company XYZ in tracking down your unauthorized use that would not have been incurred had you come to us for a legitimate license … many image companies multipliers such as 5x or10x for unauthorized uses…

Protection from Infringement?

Original Content Public Domain Creative Commons Licenses Fair Use

Defense, not a rightBaywatch by

Soggydan

Public Domain

No one owns it.

Everything published before 1923.

US federal works.

Authors can choose.

Creative Commons

www.flickr.com/search/advanced www.search.creativecommons.org

Creative Commons

Creative Commons

Wiked cute cat by sskennel

Fair Use Exception

Please note“this language does not provide blanket immunity,” and “whether a use referred to in…Section 107 is fair use…depends upon the application of the determinative factors”

Basic Brooks, Inc. v. Kinko’s Graphics Corporation, 758 F.Supp. 1522, 1529 (S.D.N.Y. 1991)

When Does Fair Use Apply?

In determining whether the use made of a work is a fair use, consider these four factors: The purpose and character of the use, including

whether such use is of a commercial nature or is for nonprofit educational purposes;

The nature of the copyrighted work; The amount and substantiality of the portion

used in relation to the copyrighted work as a whole; and

The effect of the use upon the potential market for or value of the copyrighted work. (Section 107 of US Copyright Law of 1976)

Additional Copyright Resources

U.S. Copyright Office www.copyright.gov

Blogger’s Legal Guidewww.eff.org/issues/bloggers/legal/liability/IP

UT Crash Course in Copyright

copyright.lib.utexas.edu/

Interactive Copyright Lecturewww.cyberbee.com/cb_copyright.swf

Creative Commonscreativecommons.org/

THE FTC: A FEW THINGS YOU MIGHT

WANT TO KNOW

DUNLAP CODDING, P.C.

When to disclose?

Disclose if there’s a connection between the endorser and the marketer of the product that would affect how people evaluate the endorsement You get product for free A manufacturer sends you a sample Advertiser pays you

Don’t need to disclose if: You paid for the product yourself The free sample is one that anyone could have

obtained (e.g. grocery store samples)

Airedale Presents from Oz by Lulu

Hoeller

For twitter: #paid ad #paid #ad

For videos Disclaimer at the beginning that says some

products used were sent by the manufacturer

How to Disclose

“Company X sent me (name of product) to

try…”

My Ferret by silicon640c

Consequences…

Written Warnings Monetary Fines

Money by AMagill

Additional FTC Resources

FTC.gov FTC Facts for Business 16 C.F.R. Part 255 FTC Videos of Endorsement Revisions

Caught Surfin Flickr by derekGavey

Any questions?

Question by Horia Varlan

Thank you!

© 2012 Dunlap Codding, P.C.1601 NW Expressway, Suite 1000

Oklahoma City, OK 73118405-607-8600 / 405-607-8686

facsimile

www.dunlapcodding.comecampbell@dunlapcodding.com