BLOGGING RIGHTS AND OBLIGATIONS
IVAN HOFFMAN, B.A., J.D.
Blogs are a collection of the postings of numerous parties, each one generally commenting on the prior postings or going off in new directions. Sometimes the later postings involve quoting from earlier postings, sometimes not.
There are a wide variety of legal issues that bloggers (those who post and those who host the blog) have to deal with. Since the phenomenon is a relatively new one, the purpose of this article is not to resolve all those issues but to point some of those issues out so that bloggers can be at least aware of the legal implications of their conduct.
Among, but certainly not all, of the issues that have to be addressed are:
1. Ownership of the rights in and to the posted material.
To the extent the postings contain copyrightable material, ownership rights are key factors since often parties would like to use and re-use the postings. As a subset of this general category, consider the following issues:
a. Is the creation of the blog an individual work or a series of individual works or is the entirety of the blog a work of joint authorship. Under Section 101 of the United States Copyright Act,
A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
Thus the issue is the intention of the parties doing the posting. Is their intention different if there is the use of another’s posting in one’s own posting?
Moreover, section 201 of the same law says:
The authors of a joint work are co-owners of copyright in the work.
These 2 sections, taken together, mean that unless each author’s contribution is distinct, discrete and separately distinguishable within the collaborative work (i.e. they each write separate postings, for example), the law has to examine what the intention of the authors was. However, often that intention is not clearly stated and thus it is up to the court to decide what the authors intended. (see discussion below about terms and conditions of the blogging site)
Keep in mind that there can be and likely will be many such joint authors. The term is not limited to merely 2 authors since a blog can involve contributions by many parties.
b. What can any party do with the blogs created by another party?
In addition to the issues discussed above, the issues involve determining what can be done with the blogs, assuming that you can even figure out who can do what with the blogs. The Copyright Act defines these rights and states:
Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;Thus, making a copy of the blog for any of the above purposes including for the purpose of making another work (a “derivative work” under the copyright law in number (2) above), of necessity may involve an infringement of the rights of the poster or posters. However, if the creators are joint authors, then each party has the non-exclusive right to exploit the joint work subject to compensation to the other party or parties. Read “Joint Authors Under the Copyright Law” and “In Bed Together: The Problems of Collaboration.”
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.
The practical effect of blogging may be that no single party has the exclusive rights to use the blogs. Having non-exclusive rights is a legal nightmare. Read “A Legal Nightmare: The Unwritten License” and “A Legal Nightmare: The Unwritten License-Further Issues”.
2. Issues About Fair Use.
When the blogger posts, is there some form of implied consent to allow that post, or some part of that post, to be used in posts related to that blog such as for purposes of comment, reply and the like? What about other uses including uses related to compilations of the blogs? Keep in mind that if something is deemed to be a “fair use,” it is usable without compensation to the creator. How likely is it that a creator of one aspect of a collective blog is going to allow his or her creation to be so used? Read the numerous articles on my site under the section called “Articles About Fair Use” on the link “Articles for Writers and Publishers.”
3. Issues Under the Digital Millennium Copyright Act.
There are significant issues presented for the operators of blogging sites as to whether or to what extent such operators will be covered by the provisions of the DMCA and what steps such operators must take to avail themselves of such protection if such protection exists. Read the several articles on my site dealing with this very important law. Click on “Articles About the Internet and Electronic Rights.”
4. Trademark, Defamation, Trade Secret issues.
Numerous issues arise as well related to the use of trademarks and trade secrets belonging to other parties within the context of the blogs. Additionally, if posts involve claims of defamation or invasion of privacy or similar legal torts, what protection, if any does the operator of the blogging site have under the Communications Decency Act? Read “Defamation On The Internet” and “Are You The Provider of An Interactive Computer Service?”
5. Terms and conditions and privacy policies.
What if the blogging site contains terms and conditions and privacy policies? What is the content of these documents and, significantly, what is the validity and enforceability of those terms and conditions and privacy policies? Will any of the said terms and conditions or privacy polices serve to change the law? Read “The Validity of Online Contracts.”
What about the validity of any employment policies of employers as to employees blogging?
6. Federal Trade Commission Issues.
Effective December 1, 2009, the Federal Trade Commission will require that all bloggers clearly disclose any payments or freebies they receive for reviewing products and presumably services and the failure to do so can bring fines and penalties of up to $11,000.00 per violation.
As indicated, the above are just some but certainly not all of the issues that may arise when dealing with blogging. At present, there are no clear legal guidelines as to answers for any of these questions.
Anyone contemplating blogging, either as a participant or as the host of a site accepting blogs, should consult with an attorney with experience in these areas of the law.
Copyright © 2005 Ivan Hoffman. All Rights Reserved.