What you own, and what you don't.
Copyright protects original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
What are your rights with a copyrighted work? It means you have the right to:
- reproduce content
- publicly perform content
- sell/rent/lease/lend copies of content
- create derivative works from the original content
- exclude others from using content without permission
- control where content is seen
You can choose to exercise all or none of these rights.
However, bloggers are put in a bit of an awkward position, thanks to the contradictions between the glacial pace of American law and the hyperspeed with which new technology and social media platforms develop and evolve. Any content creator cannot sue for infringement without first registering that content with the United States Copyright Office. Registration is $35 per published piece, which means that for bloggers, that would mean per post. Because a blog is a living document and will be updated, one cannot register the blog copyright for future, unwritten entries. Although you can still take legal action against infringement if you register your content after the infringement takes place, the timing of when content is registered affects how much money you can seek in court. If your content was already registered with the Copyright Office at the time of the infringement, you may sue for damages (earnings lost) as well as attorney's fees. If the content is copyrighted post-infringement, however, one may only seek damages, which, in the world of blogging, may be as inconsequential as a $.07/month banner ad.
So, with this obstacle facing bloggers, how do we protect our intellectual property when infringement happens?
- Nobody knows if you've already registered your work, so start with a cease & desist letter. It sounds fancy, but really all you need to say, in a stern and serious and slightly scary tone, is that your work has been used without your permission and that it must be immediately taken down/withdrawn at the threat of legal action. Failing that,
- The Digital Millennium Copyright Act (or DMCA, which, contrary to its name, was passed in 1996 and is still to date the most recent copyright law addressing digital media) lays out further steps you can take. First, determine the web host of the site/person using your content through www.whois.com. Then, go to www.copyright.gov and find the DMCA agent who oversees that host. Request the DMCA agent send a take-down notice.
It's important to distinguish, especially at Vida Vegan Con, that recipes are considered ideas and thus cannot be copyrighted. The written recipe can be owned and copyrighted, especially if there is original or specific prose (the writer's "voice"), but the idea of certain ingredients in certain amounts combined in a certain way cannot. Cookbooks are different, because the compilations of recipes can be copyrighted.
A trademark is any word, phrase, symbol or design, or a combination thereof, that identifies the source of the goods of one party and distinguishes them from the goods of others.
- Fanciful- something made up, completely unique
- Arbitrary- unrelated to the product or property but still distinct (i.e., Apple)
- Suggestive- something not quite spot-on but still evocative of the property (i.e., Coppertone, Greyhound)
- Descriptive- plainly says what the property is (i.e., Holiday Inn, The Vegan _____, Surname Industries [where a secondary meaning adds dimension])
- Generic- a description of the category the property falls into (i.e., phone, computer)
The closer to the top of the list your property falls, the stronger your ownership argument will be.
So why register? When you register a trademark, you get exclusive national rights. Without registration, you still have rights to your trademark, but only in the area in which you do business. For example, a burger restaurant named Burger King in Mattoon, Illinois, failed to register a trademark. The national chain Burger King was able to trademark the name for themselves, however- the national chain is still barred from conducting business with a 100 mile radius of Mattoon because the local Burger King predates the registration of the trademark.
When deciding on a Trademark, use only what you must for identification. Do not imply a relationship with any other entity where there is none. Finally, do a little research to confirm there are no confusingly similar names.
What other people own
However- you must add your own thoughts, link to the original source, and give attribution. Attribution without original thoughts added is infringement.
How do you test for fair use?
- The purpose and character of the use
- The nature of the copyrighted work used
- The amount and substantiality of the portion from the original work used compared to the whole copyrighted work, and
- the effect of the use upon the potential market for or the value of the copyrighted work.
Your intent does not matter, even if it's good!
What do you do when you're on the receiving end of a takedown notice? Well, take a look at the content in question. If you believe you have violated copyright, you have the right the send a DMCA counter-notice to the same agent who sent the takedown notice. The host then has ten days to restore your material.
Defamation: a false statement of fact that injures a third party’s reputation.
- A false statement purporting to be fact (not an opinion)
- Publication of said statement to a third party (blogs qualify)
- Fault, and
Remember, libel concerns false statements that are presented as facts. It's not enough to simply add "in my opinion," it must be clear that it is your opinion. A negative review of a restaurant is not libelous ("the service was too slow"), but a false statement in your review is ("the service was slow because the waiters are all drunk!"). Doubting ingredients or a company's transparency can lead to libel suits. Simply put, don't make any unfounded claims.
What determines fact versus opinion?
- Specific language used
- Can the statement be verified?
- The specific context of the statement (i.e., the post)
- The broader context of the statement (i.e., the blog)
Keep in mind that if you repeat someone else's defamatory statement, you can be held just as liable as they are for the defamation!
Defamation of a public character
Defamation of a private citizen involved in a private concern:
only must prove that the statement is false
Defamation of a private person involved in a public concern:
must prove statement was made with actual malice
- It was true!
- The statement was substantially true (i.e., a minor detail was off that does not affect the main thrust of the statement)
- No one would believe it was a fact
- No malice was intended (public figures only)
- There was no reputational damage (this is near impossible to prove though)
- You must disclose your relationship with the company
- You must say when you have been compensated and/or given free products
- You must be true and honest in your reviews and endorsements
These apply to comments you make on other blogs, too! The FTC has the power to fine you up to $11,000 per violation, so keep these rules in mind!
Random prizes given by chance
Random prizes given by chance in exchange for a consideration (fee)
Prizes given by merit
Giveaway guidelines: provide as much information as possible. Start and end times, possible odds, what happens to unclaimed prizes, why you are having a giveaway, etc. Don't require entrants to complete more than one action, and make sure it's something everyone can do (ie, leave a comment on your blog without 'registering' as a user, or using Facebook). No minors or Canadians allowed- sorry! The international law surrounding these issues are just too complicated. Finally, you must register prizes with a value greater than $600 with the IRS (Vitamix, anyone?).
As frustrating as these laws are, they fly pretty blatantly in the face of the First Amendment. Several lawsuits have already been filed to challenge and hopefully obliterate these laws. However, litigation takes many years, so the ag gag issue will be a topic for some time to come.