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.