Blogging and Copyright Law

In July 2006 the Pew Internet & American Life Project estimated that the US "blog population has grown to about 12 million American adults", some 8% of US adult internet users. The number of US blog readers was estimated as 57 million adults (39% of the US online population), although few of those people read widely or read often. David Sifry reported in April 2007 that growth in the number of blogs created had slowed - "matured" - with other observers noting that the percentage of active blogs are compared to the total number of blogs tracked by Technorati was declining, down from 36.71% in May 2006 to 20.93% in March 2007. (Source: http://www.caslon.com.au/weblogprofile1.htm)

With more and more people blogging and even more reading these blogs, it is important to know and follow U.S. Copyright Law. It is way too easy for people to copy and paste material and make it their own. This material includes pictures, sound, video and text. If you are a blogger, KNOW YOUR COPYRIGHT LAW! The last thing you want to deal with is a cease and desist or takedown letter or better yet, a federal copyright infringement lawsuit.

Things You Should Do

Use stuff in the public domain. As an online publisher, you are free to use any work that is in public domain. This includes federal government documents, materials produced before 1923 and materials produced before 1977 without a copyright notice.

Use ideas and facts. Copyright law protects the expression of facts and ideas, not the facts and ideas themselves. You are free to use facts and ideas you find on websites and other blogs.
Use things that are not protected by Copyright law. Some examples of things not protected by Copyright law include names, symbol, short phrases, titles, slogans and procedures. Be wary of trademark issues however. Some of these things not protected by Copyright law ARE protected by Trademark law.

Quote things you find interesting. Under US Copyright law, short quotations for the purpose of criticism, commentary or news reporting are considered “fair use”. We are talking about a relatively speaking small part of the work and most certainly not the whole thing or even major parts.

You can use a company name or logo. You can use a company’s name or logo if you are talking about them. A fundamental purpose of Trademark law is to protect a company from people trying to use its name or logo to deceive customers. If you are being critical of a company or offering some commentary on a company, you can use their name and logo under the doctrine of Nominative Use (see http://en.wikipedia.org/wiki/Nominative_use).

Things You Should Not Do

Just because there is no copyright © notice, does not mean you are free to use it. Don’t assume that the work is in the public domain just because it does not display the symbol. In fact, it's a good idea to assume something IS copyright protected unless you can prove that it is not. Up until 1977, the law required this symbol on all copyrighted works. Congress changed the laws in 1978 and abolished the requirement for copyright notice. Every published work (in print format, in digital format) automatically gets protection, whether it shows the symbol or not.

Just because you’re attributing or quoting the work of another, doesn’t mean you are not committing a no-no in Copyright law. This is a common misconception. You can ONLY use copyrighted material with express consent/permission from the author unless you are making Fair Use of the author’s work.

Not using something for commercial use is not a defense. Jimmy the Blogger who creates a blog for his own personal enjoyment and makes no money doing it can still be sued for copyright infringement. Certainly, making commercial use (e.g., money) of copyrighted material is more offensive to the original author and easier for wronged author to claim damages against Jimmy, such commercial use is not necessary to bring a copyright infringement actions against an offender who acts without permission.

“Creative Commons” stuff isn’t always a free-for-all. Check what kind of license the Creative Commons stuff is using. Some licenses are more restrictive than others. For example, a license may require you to credit the original author while others make you release modifications of the work under the same license. (see http://creativecommons.org/)

What if you cannot find the Copyright owner to ask for permission? Just because you cannot find the rightful copyright owner does not mean you have done enough to avoid infringement. It is a good idea to pass on using the copyrighted material altogether. If you cannot find someone to get permission, you don’t have permission. And when you don’t have permission, see above.


Alex S. Yiokarinis, Esq.
www.ExeterLawyer.com