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Intellectual Property Law Tips for Bloggers

Confused about Trademark, Copyright and other Intellectual Property Law issues as they pertain to your blog? Today Mark Patterson from Waddy & Patterson PC and the Tough Money Love Blog is going to explore some of these IP issues.

I am fully aware of the risks of publishing a post with advice on intellectual property law. The return fire could be overwhelming. After all, the blogosphere is supposed to be a place for open and unrestricted exchange of ideas and information, unhindered by rules and structures imposed by a legal system that can’t seem to keep up. On the other hand, blogging has become a business for many, providing substantial alternative or primary income streams for bloggers who work hard to research and publish original content. These tips, then, are intended for those bloggers who want to protect the business side of their blogging efforts, lest their hard-earned “blog assets” be snatched away by others who know how to use the legal system. So, please don’t flame me. Yes, I am an attorney but I’m a blogger too!

Protect Your Brand (and Domain Name Ownership Doesn’t Count!)

I won’t name names, but a quick check of the records of the U.S. Patent and Trademark Office (PTO for short) tells me that there are some very successful (top 25) bloggers who have registered their blog title or domain as a trademark. If you blog with a plan to brand your site or yourself, and if you succeed, you now own substantial trademark rights. (Technically, publishing information online is a service, making it a “service mark” but the rules are the same.) Your domain name may or may not be the same as your blog title (or “brand” in marketing parlance). Even if the domain name and blog title are the same, owning the domain name does not protect your brand. That is the role of trademark law. To enhance and secure the valuable trademark rights arising from your blog publishing venture, your trademark should be registered.

Why do I recommend registration, particularly for heavily monetized blogs? There are many reasons but I want to mention two of the most important. First, registration puts everyone on notice of your rights. You do not want a business to accidentally adopt your blog title as the name for a book or other product or service. A trademark search performed by the lawyer for that business may include domain names but trust me, it probably will not be exhaustive enough to capture a blog title that is not identical to the domain name. If your blog title/brand is registered, a search will find it immediately. Even if no search is performed, your registration provides constructive notice to everyone. So if another blogger decides to use a blog title identical or similar to yours (even innocently), your registration is a powerful tool to shut that other blogger down – quickly.

A second important reason for registering your valuable blog title is that the registration becomes an important financial asset. If you ever wanted to sell your blog, the registration will add tremendous value. The same goes for licensing your brand for other products or services. A trademark registration provides a level of predictability and sophistication that is well understood by those in the corporate and financial worlds. If you want to play in those worlds someday, be prepared with the right tools.

If you want to register your blog title as service mark, you can do it yourself online at www.uspto.gov. I don’t recommend that because the risk-reward and cost-benefit ratios of DIY trademark work are decidedly against you. If you have a heavily monetized blog with great cash flow, let a pro do it right the first time.

Protect Your Content as if your Ad Revenue Depended on It

Unless you have the attitude that everything you write should be public domain immediately upon publication, you must pay some attention to the fundamentals of copyright law. What you call a “scraper” in the blog world, IP lawyers call “infringers.” This tip is for bloggers who don’t like scrapers and other copycat artists who are too lazy to write their own stuff or who are looking for shortcuts to page ranks and links.

Starting with the basics, I am amazed at the number of high traffic blogs I visit that do not display a proper (or any) copyright notice anywhere on the site. I won’t go into all of the legal benefits of using a copyright notice (of which there are many). Let’s just say that if you ever had to take legal action against someone who blatantly copied your content, your failure to use a copyright notice will substantially devalue your case. On a more practical side, there are lots of readers and bloggers who believe that if you don’t display a copyright notice, your content is public domain. This belief is wrong but it doesn’t help you if they don’t know it’s wrong and end up using your post in its entirety. So use a notice to at least discourage those who may not know any better.

While I am talking about copyright notices, let’s be clear about what this is. The notice must include “ © “ or the word “copyright”, your name, and the year of first publication of the content. For an established blog, that probably means using a range of years, reflecting that the content has regularly been updated.

Now what about guest posts, partial quotes from other posts, and comments? Generally, copyright ownership of a guest post is a matter of agreement between you and your guest poster. If nothing is said about that by either of you, then what you probably end up with is an implied license to publish the post on your blog and that’s it. The guest poster would retain copyright ownership and be free to use that same post as well. FYI – the same would apply to freelancers who write for you. You will need an assignment (in writing) of the copyright unless the freelance post meets the statutory definition of a work made for hire.

Quoting from other blogger’s posts is an established practice and fortunately copyright law supports it, typically under the fair use doctrine. There are no hard and fast rules in this area but be mindful of this one: Do not quote more than is necessary to make your own point about what was said by another blogger or author. If you follow this simple rule, no one will call you a scraper and everyone (including the lawyers) will be happy.

Finally, a word about the creative commons open source licensing scheme (www.creativecommons.org) If you want to use it for your content, that is fine, but make sure that you clearly notify readers of its application to your posts. If your content is copied for commercial use without your consent, for example, you cannot use the restrictions of the creative common license unless readers of your blog are told about it ahead of time. The creative commons license is fundamentally a contract, requiring an offer and acceptance on behalf of two parties, not just you. One way to invoke a creative commons license is to prominently reference it in your copyright notice and again in your site Terms of Use. (You do have Terms of Use, don’t you?)

Respect Third-Party Graphic Content

Most bloggers like to juice up their posts and pages with attractive graphics and photos. In my experience reading blogs, photos are used primarily for aesthetics and not for further educating the reader about the subject matter of the post. That immediately takes away the “fair use” argument. This means that if you import third-party photos or other graphics into your blog, be 100% sure that it is public domain material. If it is not, it may be available to you under a creative commons license, but you must use the material as specified in the license. Usually this means including an author attribution and a link back to the owner. Also, remember that just because a photo or graphic is published on the web without a copyright notice, it does not mean that it is public domain. Similarly, you cannot copy third-party material (graphics or text), modify it, then use it as if you owned it. That is called a derivative work and under the law, only the copyright owner has the right to do that.

Watch Your SEO Metadata

As metadata has become less important in search engine algorithms, IP lawyers are seeing fewer disputes over use of third-party trademarks in website metadata. Still, if you have a monetized blog that focuses on a hobby such as digital photography or collecting, do not plant company or product names in your keyword or heading metadata for the purpose of driving traffic to your site. The law is all over the place in this area but such usage creates legal risk. If you use third-party trademarks in your blog text, that generally will be OK, depending on the context.

Use these tips wisely (meaning get legal advice applicable to your specific situation) and if you have, or aspire to have, a money-making blog, your IP legal bases will be well covered.

About Darren Rowse

Darren Rowse is the founder and editor of ProBlogger Blog Tips and Digital Photography School. Learn more about him here and connect with him on Twitter, Facebook, Google+ and LinkedIn.

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Comments

  1. Aira Bongco says:

    That is a very serious post. That had made me go and recheck how I make my blog posts.

    I’m a researcher by the way and intellectual property rights is something I face all the time. I would also like to note that ideas are also part of intellectual property. If ideas are posted as is without quotation marks and reference to its source or the ideas are paraphrased but the author is not cited as a reference. Then that is also considered plagiarism.

    It is also the same with interviews. All interviews must be transcribed rightly. A wrong citation of words can also be venue for being sued.

    In any case, it always helps to be extra careful in everything you do.

    Thanks again for another useful post. Though I’m intrigued on what punishments you’ll face once you are sued for breaking intellectual property rights.

    Cheers

    Aira

  2. hemu says:

    I want to see http://www.DigiSteps.com as a registered trademark. But i have to make a Mark of it in blog sphere before going for registration. Thank you Darren.

  3. Hi Mark,

    Awesome tips….

    I am sure these are the things about which most of us are really confused about…. At least I am :-)

    These tips, coming from a attorney, are a great starting point for us to delve further!

  4. Thanks for the article. I’ve done a ton of research in the area of copyrights because I run photo blogs and such. It’s nice to have a professional write it all out in one place, and make it easy for everybody to understand.

    Everybody who blogs or freelances should bookmark this post.

  5. anonymous says:

    I have been in a sticky situation once regarding the domain name ownership and I am glad everything was resolved (though not amicably). I wanted to know if I register a trademark in India, will it hold true worldwide?

  6. writer dad says:

    It is important to understand the rules. One of my readers pointed out to me that I was using the Creative Commons licenses off Flickr incorrectly. I went back and fixed the problem, and I’m thankful that the reader let me know it was there.

  7. anonymous says:

    @darren: Have you registered your blog? I did a quick search on USPTO and couldn’t find problogger

  8. Archit says:

    A very helpful article I must say Mark!

    I think you missed to mention one point. “How much would a Trademark registration approximately cost for all these things?”

  9. Thanks for the post.
    I have the same question like previous commenter here,
    How much would a Trademark registration cost..?

  10. Duhh says:

    I have extensive experience in what happens when the Digg lawyers think your being bad, got my second letter from them yesterday, this post just seams like perfect timing.

  11. Good tip. You must also remember to patent your logo if that is part of your branding strategy.

  12. Back in the day (mid to late last decade) we obtained an ISSN for deadmule dot com – ISSN 1535-8488. Now days I hear it’s not as easy.

  13. For those asking questions about trademark registration costs, go to my firm’s website (linked from the post) and contact me directly. The starting point is going to be $325 that must be paid to the government as a filing fee.

  14. I would love to get my title/domain name trademarked but it’s soooo expensive! I did have my own cowgirl made in which I had copyrighted but not having my title (who I am..A Cowboy’s Wife) trademarked bothers me.

    Great info except for not including the cost of getting something trademarked.

    LegalZoom is one of the cheapest places to get a trademark done. It runs about $800..at least for mine.

    I got my brand copyrighted for about $80 at godaddy.

  15. Rick says:

    I was very interested in the section on images. Do the images in flickr qualify as fair use as long as the owner is credited or named as the source of the image via caption along with a link back to the source in flickr?

    Rick

  16. Mike Nichols says:

    This would be a great subject for a series of articles.

    What with all the copyright subpoenas being thrown about by Big Media, and the frequent changes in copyright law, it’s hard to know what is usable and what is not.

    Fair use sometimes is really difficult to determine. I’ve found this resource, Fair Use Checklist to be helpful.

    Images are a minefield for potential litigation. Just because you can find it in Google image search doesn’t mean you can use it. I’ve found the royalty-free images resources and Flickr to be the most reliable sources, of course, with adequate attribution.

    Thank you for this article.

  17. Thank you for this information. However, I prefer to offer as public domain all my posts, including all my photos. For each post I publish a photo.

  18. Many of the images on Flickr are available for use subject to the specified license terms. Those license terms are linked to the copyright symbols in the photo caption. Read those terms for the photo you are interested in.

  19. ROW says:

    How come you guys know that these days i am fighting a case on plagiarism…3 days back DI posted and today you are posting on same issue…good for me :)

    well, this guy took countless posts from one of my blogs…I got to notice it 4 days back …I commented on his blog…he replied only today apologizing for his mistake also asking me to point out the posts he has copied so that he can remove them!!! He claims that he never knew that copying some one else posts is illegal… well now I want to send him a mail to ‘educate’ him on this issue am searching for something like “Seriousness/Punishments of Plagiarism” but sadly can’t find anything from authority source on the web…do let me know if you know of a source…. also I am asking him to write an apology on his blog

  20. amirulcyber says:

    Thanks darren for this info.It is really useful for me.

  21. amirulcyber says:

    I agree with Aira Bungo.we must careful in everything you do especially in getting sources for writing our article.

  22. amirulcyber says:

    To ToughMoneyLove:

    thanks for remember me regarding the rules of using image on flickr.

  23. Leo says:

    Or, you could go the opposite route … and release copyright. That’s what I did, and it’s working out pretty well.

    See Open Source Blogging for more.

  24. Great article. I’d love for you to go more in detail about using trademarked meta tag data on posts.

    I have people tell me to stop using certain meta title tags on my travel site all the time.

    Like I have a category for vacation rentals in San Francisco. So I use the meta title “San Francisco Vacation Rentals” & they have sent me notices that they own that as a trademark. It’s a pretty general term, how can someone claim trademark to something that really can’t be said any other way?

    Do they have any validity to this?

  25. Bonie says:

    the best way to keep a safety i ever seen at this article, thanks dude…

  26. Craig: Your question cannot be answered without a little more investigation into the facts. Sorry.

  27. @Leo, I thought you might chime in. I had recently read your Uncopyright page and was intrigued. So when I just read this post I thought about Open Source Blogging and how I think it makes a lot of sense. I can see both sides of the issue and how they both are relevant. But I like the idea of Open Source and feel that if you grow a strong reputation, that alone will help solidify your “brand”. It might not protect you in a courtroom but it seems to be a good alternative none the less. If someone were to plagiarize content from zenhabits I think your reputation, combined with the free market would punish the plagiarizer though reputation, which is a very effective deterrent. Just some thoughts.

  28. Lisa says:

    This is a fantastic post, and as always, you have brilliant timing, Darren. I’m having problems with scrapers and sploggers at the moment. It’s not so much the monetizing or the SEO troubles they give us, but the fact that we actually spend a lot of time and effort on our content and they’re just making a quick buck out of our hard work.

    Thanks for the read, Mark. I appreciate the tip about SEO metadata. It’s hard maintaining a digital photography site without referencing Adobe Photoshop. I don’t really know how to work around that though. Any tips?

  29. Sire says:

    This may be something I have to consider if I ever make a name for myself on the blogosphere but for now I will file it for future reference.

  30. Thank you for this! I’m running up against this on several fronts. I write articles for Demand Media and they’ve recently instituted an automated plagiarism filter. I currently have two articles that have been kicked back that I wrote entirely, I didn’t even do research at all on one of them.
    And, I’m writing online in a lot of places, I want my content protected. The bottom line seems to be that there is so much content out there that it may be impossible to prevent the appearance of infringement.
    Thank you for this, Darren and all.

  31. Jaseem Umer says:

    I was looking for this yesterday. Hey man, do you have the capacity to read minds?

  32. Dan Mihaliak says:

    Great post! I think this is a must read for beginning blogger as it could save them trouble later on.

  33. Does this mean that we would have to register it something like a trade mark like nike, coca cola? What is the difference between registering it legally and creative commons license? I was also planning a similar stuff.

    Does it apply globally as well? Thanks.

  34. amirulcyber says:

    To jaseem umar :

    Wow!!!capacity to read minds?What’s that?

  35. amirulcyber says:

    To Lisa:

    Darren always publish a great post.Lisa,we have same thought.

  36. amirulcyber says:

    To Leo:

    Thanks for sharing the info.it is very useful.

  37. Lisa: If you refer to a brand name in your post text (not just metadata), that generally will be what we call a nominal fair use. But if you have any concerns about whether you are doing it correctly, ask a professional for a quick opinion.

  38. In regards to using images on your blog, there’s not doubt that they help catch your readers eyes and add flare. But, like you stated, there are a lot of restrictions when it comes to what you can find over the Internet. But what I’ve founds just from reading other peoples blogs, let a lone working on my own, is that when personal photos are used (I just mean pictures taken by the blogger) there tends to be a bigger impact. The key is to get some good shots. I they are too amateurish you may get the opposite affect. But if you are able to do your own photography I think you have a real leg up on the bloggers that don’t.

  39. What about photos from flickr.com and other public photo sites? Can they be used?

  40. John says:

    This is handy information for my blogging. Thanks. I would be interested in knowing more about the tradmark process and what specifically the creative commons license is about.

  41. Olivia says:

    How do you know if something is public domain material? If I pull a logo from site and plop into a post is that a copyright violation?

  42. Pangeran says:

    I’ve using Creative Common for this while.
    Is it count to protect ourself?

    This post sounds creepy…
    But, still I’ve stumbled so many just rip off other works just like that… *tap

  43. Aira Bongco says:

    @Olivia I think something is public domain once it is declared to be. Siteslike Creative Commons and Flickr contain public domain images.

    I don’t know if it’s a logo though.

  44. DevTopics says:

    Excellent article. If content is on the web, people naturally think that it’s free. Well, it’s true the content is free to CONSUME, but it’s NOT free to RE-PUBLISH on one’s own site. It’s important to protect your brand name with trademarks and your intellectual property with copyrights.

  45. joe gelb says:

    its amazing what is legal seems illegal and what is illegal seems legal, that is the great blogging paradox apparently

  46. Ginger says:

    I recommend going with a lawyer as well for all things Trademark related. I just completed the process, well Ive filed and the mark is live so Im pretty satisfied.

    If you’re utilizing your blog as a business and it is monetized and believe that you’ll be in the game for a fairly long time then you should consider getting a trademark to protect your business.

  47. Ginger says:

    @ ToughMoneyLove-Should we be using the Creative Commons license in addition to the Copyright mark at the bottom of our blogs? One reader pointed out that I dont need to have both there.

    And, what should be included in a Terms of Use page? Please elaborate ….

  48. Thank you so much for this post. I wondered about a lot of these things, but did not want to spend a lot of money to find them out. Plus, you have to find the right lawyers that know about the internet and blogging world, which is not always the easiest thing to do. I really appreciate the help and this will definitely have a positive impact on our blog and brand.

  49. Trisha says:

    Thank you Mark!

    Any suggestions on what to do about copyright notices if you don’t write using your real name or full name? I do include a copyright notice – but since on one site I just use my first name (to maintain some privacy) and use a nickname on another blog – I just include the domain name by the copyright notice, on the site pages as well as photographs. I’ve always known that wasn’t the proper way to do it, but I have reasons for maintaining some privacy.

    And I don’t have a Terms of Service because I really wouldn’t know how to write one properly. Any suggestions for that?

  50. Mark, I just shot you an email on your personal account. GREAT post!! IP law is and will continue to be a growing concern for the online community; I’ve already proposed a related SXSW panel idea.