One of the most important legal topics for bloggers is intellectual property, especially copyright and trademarks. Here’s a brief overview of the areas that are most important for bloggers.
What is intellectual property?
Intellectual property means the work or content that is a result of an act of creativity. The three main intellectual property areas are: patent, copyright, trademarks.
Patent law covers inventions and is a very specialized area of law. Because this is not as common for bloggers, we will not be covering patent law. If you need assistance with this area, we strongly recommend you seek out a patent attorney.
What You Need To Know About Copyrights
Once upon a time, in the early days of blogging, people thought it was okay to do a Google image search, copy the photos and use them in posts. (Please don’t do this.) Fortunately, as influencer marketing has matured, people have a better understanding of copyright law. Here’s a primer so you better understand your rights and the rights of third parties.
What is a copyright?
A copyright gives exclusive rights (which we’ll refer to as copyright rights) to the creator of an original creative work.
Before we talk about the copyright rights, it’s important to understand what can and can’t be copyrighted.
You can receive a copyright on original works such as photos, copy (including blog posts), songs, videos, and manuscripts. You cannot copyright works without “originality” such as titles, slogans, and recipes (listings of ingredients and steps). Most importantly, remember that a copyright is only applicable to the expression of the original work; it does not cover ideas.
As the owner of a copyright, you have the following copyright rights:
- The right to reproduce the work;
- The right to create derivative works (new works based on the original);
- The right to distribute copies of the work;
- The right to publicly display the work; and,
- The right to perform the work.
As a copyright owner, you can grant others these rights. We’ll describe the most typical methods, licensing and assignments, below.
What is an assignment?
An assignment transfers all of your copyright rights to a third-party. For example, if you are working with a brand and they want to retain all of the rights to the content that you create, you will grant them an assignment to the copyright. You are assigning all rights to that copyright to the third party. This should be included in your contract with the brand.
What is a license?
A license conveys permission to certain copyright rights to a third party. For example, if you are working with a brand, and they want the right to display the content that you create on their social media channels, they may request a license to the right to display the content. In this case, you still own the content, but the brand has the right to exercise certain rights that you license to them.
Do I need to file for a copyright?
Through the act of publishing the original work, you automatically have the copyright to that content. If you file with the copyright office, you receive additional legal rights, including the right to bring an infringement lawsuit.
What if someone is infringing on my copyright?
If someone is infringing on your copyright, the first step is to reach out through a cease and desist letter. A cease and desist letter asserts your rights to the copyright and advises the other party to cease infringing.
If you are unable to send a cease and desist letter directly to the infringing party and the infringement is happening online, you can send a DMCA takedown request to the website’s host. (DMCA is Digital Millennium Copyright Act.)
Can I use someone else’s copyrighted works?
To use someone else’s copyrighted work, you must either have permission, or it must be considered fair use. Fair use means that you have a limited right to use someone else’s copyrighted work without having to first get permission. Common examples are parody or news reporting. Unless you are well-versed on the fair use doctrine, we do not recommend using another person’s copyright and claiming fair use.
We’ve seen a lot of people state that if something is published on the internet, it is in the public domain and is, therefore, available for anyone’s use. This is an incorrect interpretation of what the public domain exception means.
Typically, if you want to use a third-party’s copyrighted work, you need permission. The copyright owner can then grant you a license to display the work.
If you are obtaining stock photos online, it is extremely important to review the license on these images prior to your use. No one wants to be on the receiving end of a cease and desist requesting thousands of dollars for content!
What You Need To Know About Trademarks
We often hear people confusing copyright and trademarks. A trademark protects intellectual property in the stream of commerce. Typical examples of trademarks are brand names, logos, and product names. The key to remember is that a trademark identifies a company or product in the stream of commerce.
Do I need to file for a trademark?
A trademark must be used in commerce to be registered. If you have a product or you have monetized your brand, you may want to consider filing for a trademark.
Like a copyright, you have certain common law rights simply by using your trademark. However, registration offers additional rights that can be beneficial.
Upon registration, your trademark will automatically be listed in the USPTO’s database. This puts people on notice that the mark is in use and it may help to prevent conflicts in the future.
For example, when you are naming a new product or company, we strongly recommend that you do a search to see if there are any conflicting trademarks. This can prevent future disputes and potentially having to rebrand at a future date if you are infringing on someone’s mark.
Remember: solely having a domain does not mean that you have a trademark. You must actively be using a trademark in commerce before any trademark rights will attach.
What if someone is infringing on my trademark?
If someone is infringing on your mark, the next step is to send a cease and desist letter.
Want to make sure you are on top of your intellectual property issues? Download the checklist.
- Incorporating Your Blog Business
- Website Policies You Need To Protect Your Business
- What Bloggers Need To Know About Contracts
Author Bio: Danielle Liss
Danielle Liss is a lawyer at Hashtag Legal. From contracts to LLCs, Danielle’s goal is to make the law feel more accessible and a little less daunting for influencers.
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