When it comes to blogging and the law, there is one area of the law that you pretty much can not avoid: Copyright.
Though you can avoid libel by never talking about anyone else, the same goes for privacy, and you can largely avoid trademark by being careful with your domain and not creating a business, it is impossible to blog and avoid copyright.
The reason is simple, every time you hit “Safe Draft” in WordPress, post a comment on another blog or take a photo for your site, you’ve created a copyrighted work and with that comes a set of rights and responsibilities you need to be aware of.
However, the issue of copyright is far too broad and far too complex to cover in any kind of depth in one column. So, in order to help bloggers who might not understand the law get some basic information, here are five copyright facts that you need to be aware of, all of which we will likely go into in future columns.
Bear in mind that these facts are based on U.S. law and, in some cases, may vary in your country. You can also read more about these facts, and other basic copyright information, on the U.S. Copyright Office website.
1. Copyright Begins When a Work is Created
Since 1978 in the U.S., and much earlier in much of the rest of the world, there have been no formalities needed in order to obtain copyright protection in a work. All that has to happen is that the work be fixed into a tangible medium of expression, meaning that it has to be saved to a hard drive, written down on paper, saved on film, etc.
Anything that takes the work out of your head and puts it onto something that is both expressive and tangible gives it copyright protection. No other action is necessary including putting a copyright notice or registering it with the U.S. Copyright Office.
That being said, registering your work with the U.S. Copyright Office does grant you a slew of additional benefits, including the ability to sue for infringement and, if you register in a timely manner, statutory damages for infringement.
Regardless though, the work is considered copyrighted solely by its creation, no further action needed.
2. Copyright is a Set of Rights, Not Just One
The term “copyright” is actually used to indicate a set of exclusive rights that is granted to the copyright holder, usually the creator. Those rights include:
- The right to reproduce (copy) a work.
- The right to produce derivative works based upon the original.
- The right to publicly display or perform the work.
This means that it is possible to infringe or be infringed without having an actual copy of the work made. For example, if someone took a play that you wrote and publicly performed it without your permission, that would be an infringement even if all of the copies they used were legally obtained.
3. Fair Use is an Exception to Those Rights
While the rights a copyright holder has over a work are impressive and expansive, fair use puts a limit on those rights to prevent them from being used to trample free speech rights.
However, fair use is not a matter of a “bright line” where you can use X% of a work or so many words. Rather, fair use is determined by four separate factors, which have to be weighed by a judge and/or jury.
- The purpose and character of your use
- The nature of the copyrighted work
- The amount and substantiality of the portion taken
- The effect of the use upon the potential market
The important thing to remember though is that, while you can walk through the fair use factors yourself and make a determination as to what you think of a certain use, the only way to be certain is to sue or be sued for copyright infringement, go through the expense of the lawsuit and then have a judge and/or jury make the determination.
In short, there is no way to be 100% sure a use is “fair” or not when you are first confronted with the situation.
4. Not Everything is Copyright Protected
Copyright protects works of original authorship that are fixed into a tangible medium of expression. This covers as pretty wide range of items including literature, photographs, artwork, music, movies and so on. But not everything is copyright protected, consider a few of the following examples:
- Titles and Names: Generally titles and names don’t qualify for copyright protection as they are considered too short. They may qualify for trademark protection if used in conjunction with a business.
- Works By the U.S. Government: Works by the U.S. Government are placed into the public domain under the law, meaning anyone can use them without permission.
- Fashion Designs: Fashion, for the most part, is considered to be a “useful article” and thus doesn’t qualify for copyright protection. That being said, images and things printed onto clothes might qualify for separate protection.
- Phone Books: Phone books and other non-creative listings of information do not qualify for protection as they lack the requisite level of creativity. Simply because something took a lot of work to make doesn’t mean it’s copyrightable, unless it can show some level of creativity.
- Old Works: Works that were created before 1923 are generally considered to be in the public domain though newer works may also be in it depending on if copyright formalities were met. However, no works created since 1978 are in the public domain as of this time.
Currently, in the U.S., copyright lasts either the life of the author plus seventy years in cases of individual authorship or the less of 95 years from publication or 120 years from creation for works of corporate authorship.
5. There is No Such Thing as “International Copyright”
Finally, it’s important to note that there is no such thing as international copyright protection. While a network of treaties ensures that your copyright is respected by virtually every other country on the planet, that doesn’t mean that the rights and rules are the same in every country.
Despite efforts to harmonize copyright law between countries, especially in the EU, there are many differences between the nations of the world on copyright in matters of copyright terms, damages, fair use, moral rights and so on.
When dealing with another nation, it is important to understand what their copyright law says to make sure that you are on the right side of the law at all times.
Literally, any of these five facts could be the subject of a full post unto themselves, and some may receive such a treatment, but the goal of this is to give you a primer on some of the key copyright facts you need to know as a blogger both to let you protect your work and ensure that you stay on the right side of the law when using works created by others.
Copyright, quite literally, is an area of law you can not afford to ignore as a blogger so it is wise to understand at least the basics before hitting “publish” or you could easily find yourself in a world of trouble.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private (However, please mention that it is a suggestion for Freelance Writing Jobs). This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.