Juris Doctor 127-129 of 161

One of my classes this year is Intellectual Property which is all about patents, trademarks, and copyright. Given my interest in creative pursuits and social media, I had to stop and think about the massive growth of blogs, wikis, social sites such as Facebook and others. The reality is that these activities have thrust all of these participating people into a place they probably never thought they’d find themselves: the clutches of intellectual property (IP) law. For most of them, such as bloggers, copyright law is the most important area to be concerned with even for novice bloggers. I thought I would share some of what I’ve learned with you to both protect your work but also avoid getting yourself sued.

First off, do you ask, what is a copyright?

According to the United States Copyright Office (USCO), copyright “is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression.” (USCO, 2011)

The copyright owner’s rights include the following:

  • Making copies of the work;
  • Creating new works based on the original (derivative works);
  • Distributing the work by sale, transfer of ownership, rental, lease, or lending.

When you write a blog post, wiki entry, or other work, you instantly create a copyrighted work. Again, according to the USCO, your original work receives copyright protection “the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” To put it differently, when you write it, you own it. The same rules and principles also apply to those photographs and assorted images you created and placed into some tangible medium such as a web page.

Here is a caveat, and this is a big one, so pay attention here: If you want to sue someone in federal court for copyright infringement, your original work must first be registered with the USCO! I have had heard people on occasion get all fussy about others who cut-n-paste or otherwise plagiarize their work and they complain about it as if they would have a leg to stand up on in court. Forget it! The use of other peoples work is limited by the legal concept of “fair use” as defined by IP copyright law. Non-commercial use is more likely to be considered fair than commercial use where the unlicensed user stands to benefit financially from the use of the protected work.

The nature of the copyrighted work is the use of a fact-based work such as scholarly writings that is more likely to be considered fair than that of more “creative” works such as photographs. This is because facts and ideas are not copyrightable, whereas creative expressions are. Another thing is that the usage of unpublished works may be seen as less fair than use of published work, since the former impinges on the creator’s right of first publication.

The amount and substantiality of the portion used is basically, the more you copy, the less likely it will be considered fair use. You should copy only that amount absolutely necessary to accomplish your goal in copying the work in the first place. A good example of this would be including something from a book or article review. Just copying a representative passage is necessary to illustrate your review and fine, but copying an entire chapter or article in its entirety is likely too much to be considered fair use. The effect on the market or potential market would be if your use of the work replaces or could replace the original in its intended or any potential market, your use will not likely be considered fair.

There is one well-established category of IP law that bloggers, tweeters and social media commentators in particular should know about is that of parody. A parody makes use of an original work in order to make fun of or comment on that work itself. While parody is a well-established category of fair use, satire is not. To further explain the differences here, parody uses the original to jab at or comment on the original work, whereas satire on the other hand, uses the original work to comment on something else entirely such as a political issue.

Pick your battles! If you honestly believe that the use of someone else’s writing, photograph, song or other creative work might not be considered “fair use,” you should try to contact the copyright holder for permission to use their work. You might not be successful with contacting them or maybe you do and they refuse permission, you should weigh carefully the potential liability for copyright infringement.

Some exceptions are, works made for hire, where the original work you’ve made is made within the scope of your employment for another entity. Generally defined, a work made for hire is a work that you’ve made within the scope of your employment or one that has been specially ordered or commissioned and falls within certain statutory categories.

A copyright doesn’t protect facts either, so you are free to use them. Although quoting of facts word-for-word probably won’t be considered fair use, though, since you will almost certainly be copying another’s expression of those facts.

Another exception is an idea. Ideas are not copyrightable, so you are absolutely free to use someone else’s idea as a starting point of inspiration for your own expression.

Finally, works in the public domain are those that are not covered by intellectual property rights. These include government documents such as statutes and laws but only the written words and most likely, unless stated, not the associated images.

So, back to the books! I hope this material has been enlightening to all my fellow bloggers and kindred artist spirits out there.

USCO. (2011). Copyright Basics. United States Copyright Office. Retrieved from http://www.copyright.gov.

Miller, Arthur and Davis, Michael, (2007). Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell. Thompson West Publishing.