I frequently get asked legal questions, such as “If someone blogs a book—actually composes it in the form of blog posts they publish on the Internet—do they need to worry about a copyright issues?” Or “Is my blog content safe from copyright infringement?” Well, I am not an attorney—let alone an intellectual property attorney—so I turn to credible, publicly available copyright materials to find answers. But if I’m not sure about something I’ve read from a credible source, I consult intellectual property attorneys who can counsel me about the parts I do not understand.
Some of the credible, publicly available materials every blogger should read include the following from the U.S. Copyright Office. These publications are written for non-lawyers (but again, if they still seem difficult to understand, consult a qualified attorney):
- Circular 1 – Copyright Basics: http://copyright.gov/circs/circ01.pdf
- Circular 66 – Copyright of Online Works: http://copyright.gov/circs/circ66.pdf
- Circular 3 – Copyright Notice: http://copyright.gov/circs/circ03.pdf
- Factsheet – Registering a Copyright: http://copyright.gov/fls/sl35.pdf
I asked Gary K. Marshall and Robert Pimm, two intellectual property attorneys, to weigh in on whether bloggers should worry about copyright issues. Both agreed that bloggers should have a thorough understanding of their rights and should assert their rights effectively under copyright law.
What Constitutes Copyright?
Marshall noted that, “Each word is protected by copyright as soon as it is ‘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.’ So as soon as the word is stored in your computer or written on a page it is protected by copyright.”
Also, despite some layman suggestions, Marshall explained that printing-out your work serves no legal purpose when it comes to claiming copyright ownership, nor does the so-called “Poor-man’s Copyright,” putting your work in an envelope and mailing it to yourself.
Register Your Blog Content with the Copyright Office
A blogger’s most effective step is to formally register their blog postings at the U.S Copyright Office. The fee to file a paper registration form is currently $65; the online fee is $35. Copyright registration has two big advantages. If you register the work within three months of first publication then you can sue for statutory damages of up to $150,000 per infringement—and you may also get an award of attorney’s fees, among other benefits.
“Let’s say someone copies one of your articles. How are you damaged? You are out maybe a license fee of a few hundred dollars. It could easily cost you over a $100,000 to sue them. If you have not registered your work there is little you can do to stop them that makes sense to do. You would not want to spend $100,000 to collect $300. If you have registered the work before they infringed, you can sue for the statutory damages up to $150,000 and for attorney’s fees, which as I said could be over $100,000,” explained Marshall.
“Realistically, most writers do not want to sue, they just want to stop the other person from using their work,” he continued. “If you have registered your work, you can almost always get them to stop when you write them a letter pointing out the high judgment they would face if they continue to infringe.”
How Often Should You Register Blog Content?
Pimm added that, “The frequency of registration is open to debate, nevertheless, it is strongly recommended that registration be made at least quarterly (every three months) from the date of first publication.”
“If you get in the habit of every three months registering the copyright in the works you have created in the last three months, you are probably protected,” Marshall explained. “If that is too much, registering once a year will still give you most of the protection you need.” (Read Marshall’s free “Copyright Basics” at http://www.marshallcomputer.com/resources.html) for more on this topic.
Is Your Blog Content Published or Unpublished?
Keep in mind that that the determination of what constitutes “published” online is not a simple black and white matter. For example, Pimm notes that in Circular 66, in a section titled “Determining if Your Work Is Published or Unpublished,” the Copyright Office states:
“The definition of ‘publication’ in the U.S. copyright law does not specifically address online transmission. As has been the long-standing practice, the Copyright Office asks the applicant, who knows the facts surrounding distribution of copies of a work, to determine whether the work is published or not.”
Thus, if you consider your work “published” because your blog postings are on the Internet, the authors of the multi-volume legal treatise Perle, Williams & Fischer on Publishing Law, would agree:
“One more relatively recent issue has been whether posting written material on the Internet constitutes publication. Due to the wide-spread dissemination of Internet postings, it has become well accepted that such postings do constitute publication.”
“However, the consequences of registering a work as unpublished instead of published, can affect many issues, such as access to statutory damages,” explains Pimm. He recommends registering your blog content as “published.” [Please note that a previous post on www.writenonfictionnow.com about how to register your blog content to the copyright office suggested doing so as “unpublished.” Pimm’s advice runs contrary to that.]
How to Protect Your Copyright
If you want to protect the copyright of your blog content, and blogged book content, here are three steps to take:
- Use a prominent copyright notice on all materials posted; such as: Copyright © 2014. Your Name. All Rights Reserved.
- Register the copyright of your bog frequently (e.g. quarterly);
- Include “Terms & Conditions” as part of your blog and require guest bloggers to accept these terms and conditions prior to any postings. (If you don’t understand Terms & Conditions, consult a qualified attorney.)
Protect Yourself Against Plagiarism
Another question I frequently get asked is, “Do bloggers, or those blogging books, need to worry about plagiarism?” In my experience, it’s rare that blog content gets used without attribution, which means plagiarized, or “scraped.” You’ll commonly hear this response to the above question: “You have more to fear from obscurity than plagiarism.”
Pimm answered this question by turning it on the blogger: “Plagiarism is a serious problem for someone offering themselves as an ‘expert’ or someone in academia, because stealing ideas and research and passing it off as your own without proper attribution is academic dishonesty. Ultimately this kind of dishonesty will undermine the blogger’s credibility and reputation.”
He also noted that “ideas” are not protectable under copyright law, “but passing off someone else’s ideas as your own without proper attribution is plagiarism. Thus, when using research assistants, bloggers should have them sign an agreement that includes language where the assistant obligates himself or herself not to plagiarize. This can help to reduce those situations where a blogger using an assistant is accused of plagiarism when they had no idea the assistant was engaging in such practices.” You can use software like www.ithenticate.com to help identify plagiarism, especially if you run a lot of guest posts.
Avoiding Copyright Issues When You Guest Blog
If you decide to start guest blogging on someone else’s blog as a way to promote yourself, your blog and your blogged book, it’s important to understand the rights you might be giving away in the process. Pimm suggests that before you agree to publish a post or an excerpt of your blogged book on another blogger’s site:
- Read, review, and understand the other blog’s Terms & Conditions in case they are claiming ownership of your blog posting;
- If you already have a publishing contract, read, review, and understand the terms and conditions of your book’s publishing agreement to ensure you even have the right to publish part of your book on another person’s blog;
- Read, review, and understand the agreement you have with your literary agent (if applicable) in case the agent is due to receive compensation from any publication and the agent is entitled to a commission should you be compensated for your guest blog.
If you are serious about blogging, you should become familiar with the many legal issues related to blogging, blogging your book, and guest posting. Bloggers should also take the time necessary to learn about their legal rights and obligations under copyright law. The resources listed above are credible sources and are a great staring point. To repeat—I am not an attorney—so if you are uncomfortable with anything discussed in this section, the best course of action is to consult with a qualified attorney.
[Note: This post on blog content and copyright, which ended up as part of the first edition of How to Blog a Book, should be disregarded. Refer to this new post above instead.]
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