The following piece by Prince Lobel media and intellectual property attorney Amanda Schreyer first appeared on the Mom 2.0 Summit website. I get some quizzical looks when I tell people what I do. I used to get them more often, though. I’m not asked “Why would a blogger need a lawyer?” as often as I once was. I think that’s a result of greater mainstream acceptance of blogging as an industry in the past few years. Increasingly, in addition to using a blog as a platform for self-expression and to connect with a community of like-minded people, opportunities exist for bloggers to use their social media platforms to benefit financially. Many of you have created businesses with your blog (whether you intended to or not), so you may be encountering some issues you have never dealt with before. And whether you blog for fun or for money or both, there are legal aspects to consider–such as intellectual property rights (yours and others’) and consumer protection rules. Here are some of the topics I discuss most often with bloggers:
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods or services of one party from those of another. In the context of blogging, your blog name, as well as any logo you use in your blog, could be used as a trademark. In the United States, your rights in a trademark arise from your use of that trademark, not merely from being the first to register the mark with the government. A blog name or logo functions as a trademark when you are using it in connection with the services you provide (i.e., blogging), in interstate commerce (i.e., on the Internet). Once you have been using the name long enough to have established trademark rights in it, you can generally stop someone else from using a blog name “confusingly similar” to yours, if you can demonstrate you were using the name as a trademark first. The goal is to have your blog name act as a source identifier. This means that when people see the name/logo of the blog, they know the content comes from you. Using the name/logo consistently – same font, same color – over time will help you to create this kind of recognition and build goodwill in your brand.
There are people who purchase domain names in which they have no intellectual property rights–domains often including other people’s trademarks, or common typos of those trademarks–and “cybersquat” on them. Typically, they buy the domains and hold them hostage unless you are willing to pay them a fee to have them transferred to you. Let’s say you have purchased the domain name www.uniqueblogname.com, and you are gaining a following on your blog located there, and by using @uniqueblogname as your handle on Twitter and Instagram. Then you learn that someone else has purchased www.uniqueblogname.net, and your readers are getting misdirected there. That person is also using @uniqueblognamedotnet, and you have received emails from your readers asking if both handles are yours. Again, if you were first to use uniqueblogname as the name of your blog and @uniqueblogname as your handle, then you may be able to stop that person from using that “confusingly similar” domain and handle through a non-judicial remedy such as a Uniform Domain-Name Dispute-Resolution Policy procedure.
Copyright considerations in blogging involve ensuring that you are only using content that you have the right to use, and enforcing your rights to exclusively use content you create. Because digital content is so easy to reproduce, it can easily end up where it does not belong. In the United States, as soon as you have fixed your work in a tangible medium (i.e., written content and posted it on your blog), you have secured copyright in that content. While there are benefits of registering your work with the Copyright Office, it is not required in order to stop someone else from using your content unlawfully. I hear many common assumptions about copyright law and blogging, like “As long as I only use X number of words, or X seconds of music, from someone else’s work, I don’t need permission;” “I can repost someone else’s photo, or a portion of someone else’s article, on my blog without permission as long as I give that person credit;” “I can repost someone else’s photo, or a portion of someone else’s article, on my blog as long as I link back to the original source” and “If it’s on the Internet, it’s in the public domain.” While some of the above may be acceptable practices among content creators, generally they are not consistent with copyright law. Unless your use of someone else’s work on your blog is truly an exception to copyright infringement such as fair use, reproducing someone else’s blog post, article, photo, or illustration will likely violate that person’s exclusive right to control copying of the work (i.e., her copyright). In addition, you might find your article, photo, or illustration on someone else’s blog. Multiple avenues exist for enforcing your copyrights in those works, and you might not even need a lawyer to do it. For example, the Copyright Act contains a mechanism through which a copyright owner can direct an internet service provider to take down infringing content upon receipt of a properly-worded notice. Note, however, that a copyright registration with the Copyright Office is your ticket into court. You can’t file a lawsuit without one.
Once you have gained a following, you may have the opportunity to provide sponsored content on your blog. In this method of monetization, you create a post or tweet or pin or video about a product or service (an endorsement) in exchange for some kind of consideration from the company owning that product or service. “Consideration” does not only mean money. If you have received clothes, hotel rooms, gadgets, subscriptions, etc., from the company sponsoring the post, then you have received consideration, and you must disclose this to your readers. The Federal Trade Commission wants to protect consumers, so it wants to make sure that your readers have the information they need to be able to decide whether they believe your endorsement was influenced by your receipt of consideration. In furtherance of this goal, the FTC has published guidelines for bloggers regarding advertising and endorsements of products and services to help you understand your obligations for disclosing your relationship with a sponsor.
If you are hosting a promotion on your blog or Facebook page or Twitter account where your readers enter to win a prize, you are hosting a sweepstakes or contest, and there are rules you need to follow to make sure you are doing it lawfully. A sweepstakes includes a prize, and a random chance to be chosen to win that prize. A contest includes a prize, and the use of the skill of the entrant to win the prize based on criteria (e.g., “best essay,” “cutest puppy photo”). A sweepstakes cannot require consideration to enter, because that would convert it into an illegal lottery. A contest can have consideration, because the awarding of the prize is based on skill, and not chance. Again, consideration does not mean only money. In some states consideration can be anything of value to the promoter, which may be submitting a friend’s email address, subscribing to a newsletter, or filling out a burdensome entry form. Laws regarding online promotions vary from state to state, and some states require that you register the promotion with the state or that you post a bond to cover the value of the prize. The official rules of the sweepstakes or contest are your contract with the entrant, and must contain certain terms required by each state’s laws. You should also make sure that any promotion you run on a platform outside of your blog – such as Facebook or Twitter – complies with that platform’s terms and conditions for running promotions. Regardless of where you are in your blogging experience, you are dealing with intellectual property. And as you grow your blog, compliance with other laws and regulations may be necessary. By being aware of some of your rights and obligations, and being able to recognize issues early on, you will be able to spend less time thinking about any of them, and more time focusing on creating great content. If you have any questions about blogging, media, or intellectual property, please contact Amanda Schreyer, attorney in Prince Lobel’s Media and First Amendment Law Practice Group. You can reach Amanda at 617 456 8091 or aschreyer@PrinceLobel.com.