10 Copyright Commandments that Keep Real Estate Bloggers Out of Trouble

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Copyright ©2011 - 2012 Frances Flynn Thorsen Real Estate Social Media Policies & Procedures Manual

10 Copyright Commandmentsthat keep real estate bloggers out of trouble

Frances Flynn Thorsen

This handout accompanies a Webinar video you can view here.

It is my mission to share best practices with a wide audience.

Happy Blogging!

Blogmother Fran

http://crosschannelmarketingconsultants.com/social-media-policy/10-copyright-commandments-to-keep-real-estate-agents-out-of-trouble/

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Frances Flynn Thorsen

My name is Frances Flynn Thorsen. I had my first newspaper column at 16 in New Jersey …. I was a newspaper reporter in New Jersey … magazine editor in Manhattan for 10 years … I have written articles and books … started blogging in January 2005. I watch trends. Unfortunately, present trends in real estate do not reflect high degree of knowledge or attention to intellectual property rights. I am the creator of No Blogger Left Behind and the co-author of the Real Estate Social Media Policies and Procedures Manual, 20-plus page document … copyrighting is a small part of that. I worked as a Realtor in Bethlehem, PA, for 22 years before moving to Tucson, AZ, in 2007. I am a blogger, a writer, and editor. Please do not construe the information you receive here today as legal advice. The best way to ask a question is to chat one in. I would greatly appreciate your feedback following the video. You don’t have to include your name if you do not want to share. If you have legal questions, the best person to ask is a licensed attorney. Cross Channel Marketing Consultants Tucson, AZ 520-282-4174

http://policymanual.sitesales.com/

http://policymanual.sitesales.com/

http://crosschannelmarketingconsultants.com/

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1 . Thou shalt be

able t o def ine

int el lec t ual

pr oper t y.

Q. What intellectual property could be protected by Copyright? 1. A speech you give off the top of your head 2. A computer program you created for your boss

A speech you give “off the top of your head” is not in a tangible, fixed form. CORRECT: A computer program is a creative work and would be able to have a copyright. What does your employment contract say about ownership? Q. Which of these actions would be legal?

1. Allow a friend to use your photo of a landscape on her website? 2. Ask a photo processor to make copies of your family portraits taken by a photo studio

CORRECT: #2 … In most cases with photo portraits you are not the copyright holder and may not make copies without permission.

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Intellectual Property Law

symbolsliterary

words

Discoveries and

inventions

music

Artistic works

designs

phrases

Realtors are used to talking about property rights and today we are going to talk about a different type of property right than you are used to talking about. Intellectual property rights was first discussed in the 19th century and it gained traction in the 20th century. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Let’s not forget the WORD Realtor® is a trademarked name and protected under law. The Realtor® logo, also. The word Realtor® is protected under trademark law, another type of intellectual property law. If you do not understand how to use the word Realtor correctly take a little trip to Realtor.org for more information and be knowledgeable about the way to use a very important word in your business. Many people are using the word incorrectly and sometimes when you see something often enough, it looks right even when it’s wrong.

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IntellectualProperty

Copyright

Trademark

PatentIndustrial

design rights

Trade secrets

There are different types of intellectual property. Each type of property has different laws. In some ways, it’s just like real estate. There are different types of real estate – residential single family homes, residential multi-unit properties, commercial properties, industrial properties, land. Different laws and regulations govern the use of these properties. Laws govern tenancy, development, mineral rights below the land. Each type of real estate property has different laws attached to it. There is a different type of expertise attached to each property type. Copyright is a type of law attached to intellectual property. Trademark is a different type of law Patent covers inventions and discoveries Industrial design rights is another type of intellectual property. In some areas of the country, trade secrets are also covered as an intellectual property. The intellectual property umbrella covers many different types of intellectual property law. The are corresponding fields of law attached to various intellectual property TYPES 1] Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.

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Permission based

content management

Copyright

Fair UseCreative

Commons

Public Domain

Copyright is part of a bigger discussion of permission based content management. It is about the legal way to share intellectual property. As part of a risk management plan, assess the content on your website and blog. What do you own? What do other people own? If you are working with a templated website or blog, some of the content may belong to the website provider. You should know exactly what the boundaries of ownership is wherever you have a presence online. What’s your’s? What is not yours? We are going to talk about permission based content management. Permission based content management is part of an overall risk management strategy that prevents you from being sued. The costs of litigation are high even when you win a case in court. Copyright falls into the legal domain … it is the province of courts when there are disagreements about ownership. Fair Use provides a way to use copyrighted materials without permission in certain cases. Fair Use is not a law. Fair use is an interpretation of the copyright law and we are going to talk about that in greater depth in a little while. We are going to use examples in the real estate industry. We are also going to talk about Creative Commons. Creative Commons is a licensing construct. Creative Commons is an avenue that lets you find intellectual property for your blog, it lets you license your own intellectual property to share with other people.

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We are going to talk a little about Public Domain, but we are not going to spend a lot of time on this because we could spend another whole hour discussion this … Works are in the public domain if they are not covered by intellectual property rights at all, if the intellectual property rights have expired,[1] and/or if the intellectual property rights are forfeited or unclaimed.

There are many sources of public domain content that are freely available … I expect I will have a Webinar covering public domain use in the near future.

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2 . Thou shalt

under st and

Copyr ight .

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Law protects intellectual property

Means the “right to copy”

- is exclusive right.

Excludes everyone except the person who owns the intellectual property.

What Is Copyright?

Copyright offers protection provided by the laws of the United States to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. It means “right to copy” It is an exclusive right. Only the author of a property has the exclusive right to copy and share it. For example, I am creating this Webinar. I have a PowerPoint I created for this Webinar. I own the intellectual property because I created it. I alone have the right to copy and share it. If I produce a Webinar for another party, I give that party the right to share and distribute the property also. In some cases, I conduct Webinars and the intellectual property contained in the recording becomes a product I share. Sometimes I offer that product in conjunction with another party and we share the income derived from the sale of the video replays. Unless you have permission to share this Webinar, you are prohibited by law from sharing the link or sharing the download. Nobody has the right to share the video unless I grant them that right. I am not posting this video on YouTube. I am sharing the video two ways. First, in an exclusive Webinar replay, and Second, as premium content on No Blogger Left Behind.

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Original

Creative

Fixed form

Minimum Requirements

There are minimum requirements for copyrights. You can’t just have a thought about something and copyright a thought. A copyright can only be applied to something that is original, where you are the author. It must be a creative product. And it must be in a fixed form. Articles, written materials, photos, videos, music, plays. A lot of what we create online meets minimum requirements. The blog posts we write, the videos we produce, the podcasts we create … All of these are original (hopefully, or purchased), all are creative, fixed forms of intellectual property. All of these are protected by copyright.

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… the moment an author

puts her idea

into tangible form

Copyright Begins …

When does copyright begin? The moment somebody puts an idea into tangible form, the right to copy begins. The moment an idea is created with form, it is covered under the law. Intellectual property is conceived in the mind. It is born in tangible form. Copyright protection begins at the moment of birth.

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Copyright word or symbol ©

Date

Property owner

Copyright © 2011 Frances Flynn Thorsen

Copyright Notice

It’s a good idea to give copyright notice. Use the copyright word or symbol. Include the year the content was born, and the name of the author. It should look something like this: st authors include this notice at the bottom of the blog or website. You do not have to include this notice on every single blog post. One notice at the bottom of the page will suffice.

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To promote creativity,

innovation and the

spread of knowledge

Article 1 Section 8

U.S. Constitution

What is the Purpose of Copyright?

Why do we even have copyright? The US Constitution talks about promoting creativity, innovation, and the spread of knowledge. The whole notion of copyright and the protection attached to it inspires people to create because they have less fear about losing their property. They have assurances they can exercise their rights as owners of the property they create. People are less afraid of sharing their creativity when they know protections are attached to them. They can work in a more risk-free environment knowing their property is safe. They have legal recourse if someone steals it.

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OwnersUsers

Copyright Law Balances Rights

Copyright law balances the rights of owners and end users Owners of intellectual property can assert their rights to restrict use of their content. They can charge fees for the use of their content, can limit how it is used. It gives property owners legal recourse It is their property. They have a say in how it’s used, how it is modified, and how it is distributed. If someone steals your property, you can sue them. You can send them a cease-and-desist letter, put them on notice that the property is not theirs, is not theirs for the taking. … you can send them a letter and demand payment. I know a popular speaker in the real estate industry … found a photo on Google, (which is a “no no”, by the way … hopefully you know that by now) … She posted it on her blog and received a letter from an attorney representing the person who owns the rights to the photo she used. She paid over $800 to settle out of court, removed the photo from her blog, and learned a valuable lesson. Just because a photo appears in a Google search does not mean you have a right to take it. Just because it is there does not mean you can use it. As technology advances, it becomes easier and easier for people to discover if other people are using their property and infringing upon their copyright.

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Technol

Share

Copy

Repurpose

Quote

Distribute

Technology Makes It Easy

Technology is making it very easy for people to work online, to be able to create intellectual property, to be able to share it, and do all kinds of things with it. You can reproduce it, you can prepare derivative works of it, distribute copies, perform or display it publicly. Let me tell you a little about derivative works. That is a very important phrase in the copyright arena. I have a book, HUD Homes for Sale … I repurposed that book last year into six hours of live training. The class I created became a derivative of the book I wrote for real estate agents. I also repurposed the book into blog posts … I took chapters and topics within chapters and created blog posts. The blog posts were derivatives of the book I wrote. I am coming out with an online class about HUD Homes shortly. That is another derivative product of the book. If you have an ebook or other intellectual property, you own the right to the derivative works originating in that intellectual property. An owner may authorize other to have these rights and also to sell the property. Unfortunately, the easier it gets to manage content the easier it is to steal it.

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Copyright Violations

Text and articles MapsMusicPhotosVideos

Copyright law applies to articles written by other authors, photographs and images, videos, and music. Avoid severe financial consequences that follow unauthorized use of another person's intellectual property. I am going to address the copyright violations I see most frequently in the real estate industry. I see lots of agents and brokers taking whole articles from online and other sources and reprinting them on their blogs. I see it happen with “Wall Street Journal” articles and others. That is NOT the way to share information from other sources. The best way to take the essence of an article for your blog is to refer to the article title, take two or three sentences, and provide a link to the original source. “I just read a great article about foreclosures in the “Wall Street Journal” … Wholesale ripoffs of articles happens a lot. I am surprised that people are not “getting it” about reprinting whole articles on their blogs. Maps is another area where there is a great deal of copyright infringement. People buy maps, they buy designer maps, they buy map technology, and people come in and just take them. They think because it’s there they can just take it. You cannot take anyone else’s maps anymore than you can walk into a store and say, “That’s a great steak. I’ll take it home because I am hungry.” You have to PAY for the steak before you walk out the door or you will be arrested for shoplifting. Intellectual property has parallels in the brick and mortar world.

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Music is a place where people are going crazy. I hear modern day popular music and the Beatles on real estate videos. I cannot believe so many people are doing that. The music industry is prosecuting very vigorously right now.

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3 . Thou shalt

honor cont ent

c r eat or s.

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This is part of a very long discussion at LinkedIn. Broderick Perkins is a seasoned, veteran journalist. He has been writing professionally more than 30 years. You may have read his articles on Realty Times and other online venues. Broderick makes his money writing. You think Realtors don’t like journalists? You should hear more back room conversations about Realtors when journalists get together! It is not nice!

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4 . Thou shalt

under st and

Fair Use.

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§107 Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonerecordsor by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright.

Section 107

Copyright Act of 1976

The Doctrine of Fair Use

This is not a law … the is a interpretation. Do not confuse this with public domain. Fair use applies to unauthorized use of another person’s copyrighted material in a LEGAL way.

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Use a portion of a copyright work “as is” for

News reporting

Research

Education

Fair Use

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I had a television show in Tucson a couple of years ago … Truth in Housing Matters focused on foreclosures and the homeless. I produced an episode called “Foreclosure hall of Shame” and I wrote a series of blog posts about it on various platforms … Truia, ActiveRain, Realtown, and my own blog.

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Two of the photos were taken from a web marketing company … they held a Webinar and I took a screen shot of one of their postcards and used it to illustrate my article. I used the same photo in a series of YouTube videos I created for distressed homeowners in different market areas where real estate practitioners subscribed to this service. Copyright? If I was using the image to create my own marketing materials, I would be guilty of copyright infringement. In this case, I was using the image to report, and educate. That’s where fair use comes in. The owners of the images made attempts to have my posts removed at all of the platforms where I published my articles. Obviously, they were not happy with my perspective about predatory marketing initiatives. Their attempts to have those posts removed were unsuccessful because I was operating under Fair use guidelines. That is a very important distinction and heaven knows I am not the least bit interested in victimizing distressed homeowners.

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Twitter

Twitter offers special challenges relative to copyright enforcement. Twitter’s 140 character limit makes it difficult, though not impossible, to post a work that reaches the standard for copyrightability. Though short works, such as Haiku, can be protected by copyright, the majority of items posted to Twitter would not likely be seen as “original works of authorship”. They are simply too short and don’t usually reach the requisite level of creativity. That said, some tweets could be copyrighted if they met the description and, almost certainly, a collection of tweets from the same person could be copyrightable if they could be seen as one large work broken apart over many entries.

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5 . Thou shalt

not st eal m usic .

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Music - File SharingTechnology

The music industry has suffered incredible loss of revenue … artists, musicians, writers, and publishers have taken a hit and the music industry is evolving to new business models. At the same time, the industry is vigorously prosecuting people who violate the law. I see real estate agents and vendors using popular music as a background to their videos on YouTube and elsewhere. This is a very dangerous trend, not just for the agents, but real estate brokers. Agent marketing comes under a broker’s license jurisdiction and a broker shares the risk of being sued. The bigger the broker, the deeper the pockets, the more vigorous a prosecution is likely to be. I know a broker in the SE … she spent $25,000 in legal fees to stay out court in an issue involving an agent … this was not a music issue, actually. The lawsuit was filed by a developer who accused the blogger of reckless blogging that damaged his business and his reputation … Interestingly, the the matter cited in the lawsuit PRECEDED the agent’s relationship with the brokerage. The agent’s blogging content that was cited in the lawsuit, was published BEFORE the agent joined the brokerage. The bottom line is this: Being sued is expensive, even when you’ve done nothing wrong.

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6 . Thou shalt

honor Cr eat ive

Com m ons.

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Creative Commons

Cyberlaw and intellectual property experts got together at the turn of the millennium and released its first set of copyright licenses for free to the public. Creative Commons developed its licenses —inspired in part by the Free Software Foundation’s GNU General Public License (GNU GPL) — alongside a Web application platform to help you license your works freely for certain uses, on certain conditions; or dedicate your works to the public domain. In the years following the initial release, Creative Commons and its licenses have grown at an exponential rate around the world. The licenses have been further improved, and ported to over 50 international jurisdictions.

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Attribution

• You can let others copy, distribute, display, and perform your copyrighted workd-and derivative works based upon it - but only if they give you credit.

Noncommercial

• You let others copy, distribute, display, and perform your work – and derivative works based upon if for noncommercial purposes only.

No Derivative Works

• You let others copy, distribute, display, and perform only verbatim copies of your work, notr derivative works based upon it.

Share Alike

• You allow others to distribute derivative works only under a license identical to the license that governs your work.

Creative Commons

Become familiar with various levels of Creative Commons licenses. This will help you develop new content with text, images, and multimedia that other people create who are happy to share their content according to a given set of rules. This will also help you share YOUR content with others, and let you set the terms and conditions attached to the content you are willing to share.

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7 . Thou shalt

not swipe t hy

neighbor ’s

phot os.

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Flickr Search

Here’s a great example of a website using Creative Commons licensing where the community offers to share content. Flickr is a photo sharing site. You can search for photos using the licensing parameters to find images you can use in your blog. Sometimes you can find great photos and the only thing you need to do to comply with the Creative Commons licensing is place a link with attribution to the photographer. You can see this kind of attribution regularly … I see this often over at Inman News. Inman News editors frequently use photographs with Creative Commons attribution only licensing in its news and feature stories.

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8 . Thou shalt

not st eal m aps.

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“If you didn't create it, write it, photograph it, draw it, have it made for you for a fee, DON'T put it on your web site. For others who have found themselves in the same situation, don't let anyone get by with using your copyrighted property without your permission.”

-- Lenn HarleyHomefinders.com

MD & VA Homes and Real Estate

Maps

Lenn Harley is a highly regarded Realtor® who displays beautiful maps on her website. She had the maps made for her website and for years real estate agents have “borrowed” her maps without permission. Lenn has successfully settled demands for tens of thousands of dollars with real estate agents and brokers who thought it was OK to copy her maps and use them on their own websites. Lenn has a “take no prisoners” attitude ..

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Google Maps

This map is a good example of what you are NOT allowed to do with Google Maps. A couple of years ago I wrote several tutorials about creative use of Google Maps using derivatives of the maps. Someone sent me a polite e-mail following a blog post and referred me to Google’s Terms of Service on their maps. I was shocked and embarrassed that I was sharing such poor information and I was equally shocked that only one person pointed it out. If you do anything with Google Maps on your website or blog I urge you to read the terms of service attached to Google Maps. In fact, it is a good rule of thumb to read the TERMS OF SERVICE attached to any product or service you use, whether it is a paid service or a free service. And, be aware that terms of service change and you need to stay on top of changes to stay out of trouble.

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Original

Release

Flickr

Stock photos

Photos

Stock photography is a collection or archive of images that can be licensed for use. It’s a way for companies or individuals to purchase photographs without having to hire a photographer for a specific shoot. iStock images and Dreamstime are two of the services I use to purchase photos. Getty Images is a huge company that has hired attorneys to collect fees from people using Getty images without paying a fee. Copyright law grants to registered copyright owners the right to recover at least $750 for each infringing reproduction. The law also recognizes that some people "innocently infringe" others copyrights and so, if the infringer proves in court that his or her infringement was innocent, the statutory damages amount drops to $200. Instead of filing suit to recover its damages, which it has the right to do, Getty pays someone to send settlement demand letters to infringers. Lots of these accused “infringers” are real estate agents and brokers who are using template websites. These agents and brokers did not go out and find the photos and put them on their websites. There is a lot of knashing of teeth in the real estate industry and lots of payments being made by agents and brokers to Getty for damages. Sometimes it’s just easier to pay a couple of hundred dollars to settle a claim than it is to engage in a protracted legal dispute.

http://istockphoto.com/

http://dreamstime.com/

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The Commons

The Commons is a very neat little corner of Flickr where there are wonderful images you can use without worry because they are in the Public Domain. I’ll be doing a Webinar about public domain in No Blogger Left Behind in the next month or so and if you are registered there you will have access to some very rich information about that. That’s way beyond the scope of today’s Webinar. Just keep your eyes open. It’s coming soon. I recently discovered how to quickly determine if a government document is in the public domain and how to use innovative search strategies to find those documents. This is one of those little secrets information marketers use to produce products … you can use the same strategies to build rich content in your blog.

http://www.flickr.com/commons/institutions/

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no pay?

no permission!

The bottom line is this: If you publish someone else’s content on your blog, you need permission to publish it. Sometimes that permission is granted when you pay a fee, and sometimes there are other terms attached to the permission. Be sure you document your permission each and every time you use content that somebody else created.

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9 . Thou shalt be

caut ious using

video.

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Videos

You need to be very careful with videos these days. YouTube is sending notes to people using music in their videos when the music matches copyrighted files in their index. There are two sites in particular where there discussions over at Facebook between real estate agents who are receiving warning letters from YouTube. Some of those agents are using Animoto videos and some are using Real Estate Shows. Both of these are real estate marketing tools and both offer musical backgrounds … Management at both of these sites have secured the right to share the music, but for the time being their appeals to YouTube seem to be falling on deaf ears. I’ve heard agents decide to stop using the musical backgrounds to avoid having their videos shut down or even worse, seeing their YouTube accounts cancelled altogether. I think it’s a great time to look at YouTube options, actually, but that’s another Webinar. I think WellcomeMat offers a great video solution for real estate agents.

http://wellcomemat.com/

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10 . Thou shalt

not ignor e

lawsuit s.

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Lawsuits ?

Nobody wants to be sued. It happens a lot, though, and that does not need to be case! Look at this this way … before you can get behind the wheel of a car, turn on the ignition, and hit the road, you have a real estate license. You know the rules of the road and the highways and byways have a higher standard of safety attached to driving. When you are creating content for the Web, or printed content, you are wise to know the rules of the road relative to intellectual property rights. Otherwise, you may end up defending yourself in court or writing checks for hundreds or thousands of dollars.

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Happy Blogging!

Have you read my books?

http://www.amazon.com/exec/obidos/ISBN=B0097JRJK4/real0e-3-20

http://www.amazon.com/exec/obidos/ISBN=B0094X1P2G/real0e-3-20