Is your blog a copyright infringement suit waiting to happen?

If you have a blog that you regularly update, have you ever wondered if your postings might infringe someone's copyright—or that your work might be, as you read this, posted somewhere else without your permission, in ways you did not intend? These are legitimate concerns, since many blogs—yours included—often feature outside content, and are open to the entire viewership of the internet, otherwise known as the entire free world. Although it may be easy to cut and paste images, articles, videos and other works to a blog, copyright law and infringement litigation are alive and well in the United States and abroad—at last count, the Berne Convention (the leading international copyright treaty) had 165 members. So knowing what's protected and how to protect your own work will hopefully keep what's yours, yours—and also keep you from being sued.

Is the work protected?

The first thing to note is, not all published information is protected. A copyright protects original works of authorship such as articles, artistic performances, photographs, music, poetry, songs, computer software and architecture—it doesn't protect facts, common knowledge, ideas or systems. Additionally, some work that was once protected may now be in the public domain, if the copyright holder released it or if its copyright has expired, for example. Public domain works are not protected by copyright. Shakespeare's works (old) and Newtonian physics (facts/systems) are two good examples of unprotected work.  Any work not covered by copyright can be used by anyone, for free, so long as it is not covered by another form of intellectual property protection (trademark, for example).  

The copyright owner's rights

The owner of a copyright has exclusive rights to reproduce, distribute, display, and prepare derivative works based on, the protected material. In the U.S., works need not be registered with the national copyright office to be protected—registered or not, the author of the work is protected by the law (the creator(s) of the work, unless the work is a “work made for hire” [PDF]). Rights under other countries' copyright laws vary, but the Berne Convention dictates that all members get more or less equal treatment. Therefore, without permission from a copyright holder, if you copy a protected work and post it on your blog, you may be infringing someone's copyright and may be exposed to legal liability.

There are, however, some important exceptions. Some uses of copyrighted work are considered “fair use” and do not require you to get permission from the copyright owner. As a blogger, knowing the contours of fair use is important, and you should err on the side of caution until you're comfortable distinguishing from uses you think are fair and those that might land you in hot water. One important note: “fair use” is a defense against a claim of copyright infringement. That means that you may be able to convince someone not to sue you by raising it when you are first notified of your alleged infringement, but you may not, in which case you will have to raise it in court … which means you might be in court… which means that you're going to pay for your defense regardless of whether your defense succeeds or not. Words to the wise.  Model examples of fair use are using only as much as you need, such as a short excerpt of a book in a review of that book; or making “transformative use” of the original work, such as in a parody. These are by no means exhaustive examples.

Crediting an author does not negate copyright infringement

A common misconception is that crediting the author and providing a link to the original work gets you off the hook, copyright-wise. Not true. You can only use copyrighted work with express permission from the copyright owner, or if your use is a “fair” one. Crediting an author will save you from cries of plagiarism, but plagiarism and copyright infringement—similar though they may seem—are two different animals, and only the latter is legally actionable (plagiarism will hurt your reputation and your chances at tenure, though).

How to determine if the copyright holder granted a license

One of the best ways to avoid an infringement claim is to license the work you want to use from the copyright owner. Some copyright holders will grant a license for the reproduction or publication of their work simply for the asking. (Some rights-holders will even dedicate their work to the public, through a Creative Commons license, or a similar mechanism.)  Others may want payment. If you're planning to take the work from an online source, there are several ways to find out if the work is free for your use without first having to obtain a license: you can check the website for a distribution license or the RSS feed to learn if the work is available for the taking. If that doesn't work, you can perform a search on Whois to get contact information for the site administrator, from whom you can also ask for express permission to post the work on your blog, or search the Creative Commons website. If your source is not online, you will need to do extra diligence to locate and reach the rights-holder and seek a license, if necessary. Absent permission—either blanket or specific to you—you will want to decide, again, if your imagined use is a “fair” one.

Watch out for trademarks

Although copyrighted works may be shared via license or permission granted by the copyright owner, it is generally good practice to not copy an image or mark you may think may have a federally registered trademark.  But this only applies if the use you, yourself, are making of the image is a “trademark use.” The purpose of a trademark is to identify the source of goods or services. Therefore, trademark holders likely will not take kindly to reproductions of their mark that they think could lead to consumer confusion about the source of goods and services similar to theirs. Just like in the copyright realm, trademark law recognizes that certain uses are “fair,” and if you need to use a trademark for a particular reason other than selling your own sneakers and trying to pawn them off as Nikes, just for example, you might be all right. For example, comparative advertising is protected—you can use Coca-Cola's trademarks if your point is that your cola is better than Coke … just make sure you're really comparing, and not trying to trade on someone else's mark. Just like in copyright, this is a nuanced analysis, so watch your step.

Protecting your blog from copyright infringement

To reserve the maximum right to sue those who reproduce, publish or distribute your blog content without your permission, you'll need a federally registered copyright. You should also mark your work as copyrighted directly on your blog/website as well as in the RSS feed, which serves to give notice that your work is protected—and you can do this with or without registration. Even if your work is not federally registered, according to the U.S. Copyright Office, if it is an original work that is “created and fixed in a tangible form,” it is still protected by copyright. But without registration with the U.S. Copyright Office, there is no official public record of the owner, and no federal jurisdiction over claims of infringement—almost always necessary to meaningful financial recovery in cases of infringement. If you want to share your work, just like discussed above, you may license it under your chosen terms—for free or for fee.

If you find your work being used without your permission  you should notify the infringer as well as the hosting internet search provider (ISP), who may remove offending content from a site or sites. YouTube, for example, has an especially easy complaint mechanism for such “take-downs.” You can also set up alerts for key phrases so that you're notified anytime an exact phrase matching your work is placed online. Staying current can help stave off snowballing infringements if your work happens to go viral—assuming you want to stop that from happening.

According to NielsenWire, there were more than 180 million blogs in the world at the end of 2011. That's a lot of content. And with so much content being generated and shared, you can never be too careful when it comes to protecting your own blog from infringers or educating yourself on what you can do yourself.