Blogging and Intellectual Property Law

The explosive growth of blogs has thrown countless Americans into a place they probably never thought they’d find themselves: the depths of intellectual property (IP) law. Although IP law also includes trademarks and patents, copyright law is the most important area for even small-scale bloggers. What follows is a short guide on how you can both protect your work and avoid getting sued yourself.

What a copyright is

According to the United States Copyright Office, copyright “is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.”

A copyright owner’s rights include the following:

• Making copies of the work;
• Creating new works based on the original (derivative works);
• Distributing the work by sale, transfer of ownership, rental, lease, or lending.

How to copyright your work

When you write a blog post, you instantly create a copyrighted work. According to the U.S. Copyright Office, your original work receives copyright protection “the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” In other words—you wrote it, you own it. This also applies to photographs and images—once a photograph that you took or image you created is fixed in a tangible medium, the copyright is yours instantly—no registration necessary, and no little © required.

However, there is one big “but”—if you want to sue someone in federal court for copyright infringement, your work must first be registered with the U.S. Copyright Office.

Works made for hire

The largest exception to the above is where the original work you’ve made is made within the scope of your employment for someone else—this is called work made for hire, and, where it applies, the work you’ve made is not your property and the copyright in it is not yours—both belong to your employer. Broadly speaking, work made for hire is a work that you’ve made “within the scope of your employment” or one that has been “specially ordered or commissioned” and falls within certain statutory categories. For example, if you are a staff journalist for a newspaper, your articles written for that paper are works made for hire—as are blog postings you may write for publication on that newspaper’s blog—and the copyright for that writing is owned by the newspaper, not by you, the writer.

Allowing others to copy your work

If you would actually like to allow people to use your work in ways that would otherwise infringe your copyright, you can attach a Creative Commons license to it. With a Creative Commons license, you can choose your level of protection, including whether to allow commercial use and/or modifications to your work. Attachment of this license lets anyone who sees it know immediately his or her rights regarding use and copying of your work. Simply refraining from any action against anyone copying your work would work, too, but if you really want to encourage use of your work that would otherwise leave the user open to charges of infringement, your express permission will facilitate such use.

Quoting or using someone else’s work

Your use of others’ work is limited by the concept of “fair use” as defined by copyright law. To put it as simply as possible—there are fair uses, and there are unfair ones, and the determination of which is which is decided on a case-by-case basis and according to the following factors from the US Copyright Code:

• The purpose and character of the use. For example, non-commercial use is more likely to be considered fair than commercial use (where the unlicensed user stands to benefit monetarily from the use of the protected work).
• The nature of the copyrighted work. Use of a fact-based work (scholarly, technical, scientific, etc.) is more likely to be considered fair than that of more “creative” work (novel, poem, photograph, etc.). This is because facts and ideas are not copyrightable, whereas creative expressions are. Also, use of unpublished work may be seen as less fair than use of published work, since the former impinges on the author’s right of first publication.
• The amount and substantiality of the portion used. The more you copy, the less likely it will be considered fair use. You should copy only that amount absolutely necessary to accomplish your goal in copying the work in the first place. A good example is a book review—copying a representative passage is necessary to illustrate your review, but copying an entire chapter most likely is too much to be considered fair use.
• The effect on the market or potential market. If your use of the work replaces or could replace the original in its intended or any potential market, your use will not likely be considered fair.

In addition, there is one well-established category that bloggers in particular should know about—parody. A parody makes use of an original work in order to make fun of or comment on that work itself. A good example of this is the use, by the rap group The 2 Live Crew, of Roy Orbison’s emblematic song “Oh, Pretty Woman.” Although The 2 Live Crew unquestionably sampled large portions of the song, it did so in order to poke fun at the original as well as the larger body of older—and, to the Crew, outdated and irrelevant—rock music.

But be careful—while parody is a well-established category of fair use, satire is not. What’s the difference? Parody uses the original to poke fun at or comment on the original, while satire uses the original to comment on something else entirely (politics is a regular example). Because the author of the original work may very well believe that the work lends itself to satirical use, others’ use of it for this purpose quite arguably infringes on the author’s copyright. In contrast, an author will very rarely make fun of his or her own work using that work itself to do so.

If you believe that your use of someone else’s writing, music, photograph (copyright for photos is usually held by the photographer, not the subject) or other creative work might not be considered “fair use,” you should contact the copyright holder for permission to use the work. If you cannot contact the copyright holder, or if you do and are refused the right to use the work, you should weigh carefully whether your intended use is worth the potential liability for infringement.

Using someone else’s idea

Ideas are not copyrightable, so you are absolutely free to use someone else’s idea as a jumping-off point for your own expression. Again, although not legally required, informal blogger etiquette suggests you should at least link to the post or article that inspired your own writing.

Using facts gathered by someone else

Copyright doesn't protect facts either, so you are free to use them. Quoting facts word-for-word, paragraph after paragraph, though, probably won’t be considered fair use, though, since you will almost certainly be copying another’s expression of those facts (again—expression is copyrightable, facts and ideas are not). So again, look back to those factors to determine whether you’re within your legal rights.

The public domain

Works in the public domain are those that are not covered by intellectual property rights of any sort and may be used freely by anyone, for any purpose. These include government documents such as statutes and laws (but may not include images or editorial content on government documents or websites) and works whose copyright has expired, among other examples. The short version—make sure that an image is in the public domain before you use it without permission. If it’s not, decide what to do based on the information above.