by Ronald H. Reynolds
Are you a blogger or otherwise publicly documenting your life? Then you may be breaking the law in a variety of ways. Generally only the larger fish in this new era of reality are pursued. That’s because the big fish have meat on them. But bloggers are subject to the same laws that govern a documentary or reality program.
Admittedly blogs are a weak lawsuit magnet, whereas reality producers allegedly draw lawsuits every 40 seconds. However, as bloggers gain subscribers or viewers and begin to realize a profit from their exposure – although profit is not a requirement – they are more likely to become a target for a lawsuit. So here are some “big fish” suggestions:
1. The Truth may not save you. Just because something is true, doesn’t mean the object of your ire cannot sue you and make you prove what you wrote is true. It is never advisable to do or say things that make it more likely that you will be sued. Defense can prove too costly to prevail.
2. Free speech is only free sometimes. The First Amendment right to free speech even as to copyrighted work generally makes bloggers an unlikely target. That is because they are blogging news, reporting, teaching, researching, criticizing and commenting, and therefore generally safe. Although scholarly sharing of truth has a protected value, stealing the creative product of others is a dangerous activity. More on what you shouldn’t share below.
3. Most pictures are protected. Those pictures on your blog are impressive, but are they a copyright infringement? In many cases, the answer will be yes. A picture is worth a thousand words or so they say. You may have stolen “a thousand words” without compensating the model or photographer.
4. The misuse of fair use is common. You’ve read somewhere about “fair use”. Well consider it as a defense and not a right in the war of copyright vs. First Amendment. Too many bloggers incorrectly think if they don’t make money from the use and they give credit to the source, this qualifies as a fair use. Sure, the law favors fair use, but balances the factors of (1) purpose and character of use; (2) nature of the copyrighted work; (3) the amount and sustainability of the portion of the work used, and (4) the effect of use on the potential mark or value of the work being used. There is no bright line rule, but if you are using the entire copyrighted picture, that is strike one. Just like freedom of speech, remember that the protection of creative product is also a constitutionally protected right. U.S. Constitution, Article I, §8.
5. Posting and pasting others work can be sticky
business. I don’t mean to be a speed bump in your
blogging, but assess your own risk tolerance when writing about
others or including the creative content of others in your
blog. Use of another’s art, photographs or writings without
permission, whether the work is a poster, billboard, printing,
sculpture, music, or other artwork, may be actionable. Never
assume the work is too small. This includes your own film or
photo that may include the artistic or creative work of
another. If you are determined to use the works of
others, check out free clip art, public domain and expired
copyrights. See: www.copyright.gov/help/faq/
6. Fame changes the rules of privacy but probably not the cost. People like to expose the secrets and glittery underbelly of the rich and famous. You’ve heard that celebrities and politicians are fair game in the fight between right of publicity and the right of privacy. And yes, they must prove what you said was false or made with reckless disregard for truth in order to prevail. But ask yourself if you want to stand your lawyer up against theirs.
7. Gossip must look like gossip. When talking about others, do not state matters as facts, but as “in my opinion . . .” Further, assume it is too risky to accuse someone of a crime, immoral acts, a loathsome disease (like syphilis), dishonesty in business or inability to perform his/her business, as they would not be required to prove damages or a loss to be awarded a high dollar judgment if they win. It is called “libel per se” and not worth touching with a ten foot pole.
8. Designs are off-limits but you can show off your new outfit. Homemaking and craft blogs are big. Also there seems to be a draw to display recently purchased clothes. Copyright law covers designs but not clothes, just like the law applies to architectural designs but not buildings. Additionally, the more you transform the material you use, or the less you use and the less you compete with the underlying work, the safer you are.
9. Don’t wait for critical mass. If you are making money from your site, you should start asking permission for use. To bloggers, it’s usually free and for documentaries that make money, it is generally a nominal fee or publicity trade. I am not saying you do not need permission before you make money but rather suggesting to not wait until you are more likely to be sued.
10. Video clips have rules. What about all those film/video clips you ripped and are cycling on your blog? I personally love the Vine app. See www.vine.co. (Not Vine.com) This great app allows you to display six seconds of looping video. What if the entire clip was not original? Prince recently issued a takedown notice for eight clips as copyright violations. You can read more at www.Chillingeffects.org where Twitter copyright claims are posted. Under the more relaxed Digital Millennium Copy right Act, professors and students may be exempt for their use, but are you still a student? Admittedly, the Motion Picture Industry of America (MPAA) has not, in the past, been vigilant in enforcing its rights, but tomorrow is tomorrow. Fit into the parameters of #2 tip above, or be ready to establish the use is socially beneficial etc. That may be difficult with many blogs out there.
11. Revise, rework from your perspective. You can rehash the facts and ideas from others. Copyright law protects the originator’s combination of words and structure that expresses their facts but not the facts themselves. Blogging is for creative expression. Be creative with what you borrow.
12. Permission provides a safe harbor. Ask permission where possible and cite your source for quotes. Give credit where credit is due. If they give permission, then they can’t sue.
13. Posted content, like a tattoo of your ex, has a long shelf life. Assume a judge may someday read what you have written, so keep it honest, constructive and something you can live with later.
14. Content on the internet has been copyrighted. Make the assumption that everything you see on the internet has been copyrighted and start from there.
15. These are not all the rules. Copyright rules are technical and be the subject of multiple law school courses. That said, a copyright is not the only protection in the Intellectual Property right’s bag of rules. What if you filmed someone with an ad or logo on his or her shirt? Trademarks, trade names and service marks can also get you in trouble. Did you always wonder why tee shirts are sometimes blurred on the reality shows and documentaries? Okay, stay away from filming ads and logos also.
16. The desire for safety shouldn’t preclude creative and noble enterprises. However, using a few tips and keeping in mind some cautions as suggested should reduce the risk of future interference with or litigation over your internet presence. If you are unsure in borrowing another’s copyrighted information or would like to solicit permission, a lawyer familiar with this area can assist you with fair use analysis, help you revise content to avoid unnecessary risk, and obtain permission where appropriate.
This Blog contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney. This Blog does not create an attorney-client relationship with any reader of this Blog. This Blog contains no warranties or representations that the information contained herein is true or accurate in all respects or that it is the most current or complete information on the subject matter covered.