Legal Lunch and Learn 2010 Schedule
Sulimani Law Firm, PC and Walker Green Wilson & Butler, LLC
IGC 2010 Monthly Workshop Series
January 28th, 2010
Want to Own Your Own Business? Do It Right!
February 11, 2010
Choosing Your Corporate Name – Don’t Fall in Love Just Yet
March 11th, 2010
Do you feel lucky? Get the contracts in writing and put it in place
April 8th, 2010
Gotcha! Hold on to your website. Do not be April fooled into losing the rights to your website!
- Social networking (Blogging laws)
- Legal Pitfalls on the internet
May 13th, 2010
Spring Cleaning
- On going Legal issues
- Monitoring your day to day operations
- Tracking your website – Google etc
- Cease and desist letters
- Corporate insurance coverage
- Corporate veil – shareholder’s meetings, following operational agreement and bylaws, set up a separate bank account from personal account
June 11th, 2010
Summertime and the Living is easy if you follow these rules
- More Corporate Veil and Buy Sell Agreements
July 15, 2010 Declaring your Independence – Uncle Sam wants you to know - Employee vs Consultant – reviewing the IRS standards
August – Vacation
September 16, 2010 Going Back to School – Hiring Interns as part of your business model – reviewing the Department of Labor standards
October 14, 2010 Trick or Treat – What’s Behind Your Partner’s Mask: Protect Yourself with Buy Sell Agreements – Incorporating Buy Sell agreements into your bylaw and operating agreements
November 11, 2010 Bountiful Harvest – Exploring Food and Beverage companies – special business and legal focus
December 16, 2010 Year end wrap up – Charitable giving, 401 K for small business and SEP plans and other tax planning
Blogging Issues: Choosing a Domain Name
In our second part of IP issues in blogging:
The use of another’s Domain Name: You must be careful in choosing a domain name for your blog that you do not choose one that closely resembles another’s registered domain name or trademark. The Anticybersquatting Consumer Protection Act makes it easier for individuals and companies to take over domain names that are confusingly similar to their names or trademarks. This can also include gripe sites, meaning COMPANYsucks.com or ihateCOMPANY.com, etc.
The Internet Corporation for Assigned Names and Numbers (ICANN) also decided to streamline the process by creating the Uniform Domain Name Dispute Resolution Policy (UDRP). Under this policy, three things need be proven by the trademark owner against the domain name registrant:
1. The trademark owner has a registered trademark,
2. the party that registered the domain name has no legitimate right or interest in the name, and
3. the domain name was registered and used in bad faith.
While the UDRP has made domain name disputes faster, cheaper and universal; it also tends to favor trademark holders. As a best practice, have your attorney run a comprehensive search as part of the process for registering your domain name, trademark and/or incorporating your business. Do not simply rely on a Google search in order to advise you as to the availability of the domain name you have chosen.
Blogging Issues: Intellectual Property
Part 1 of 3: Using Someone’s Words and/or Images
A blog, as mentioned previously, is a publication and therefore protectable under the federal Copyright Law. Therefore, all the original words and original images on your blog are your intellectual property and can be protected against infringement. It is not required that you register your blog with the Copyright Office for you to own the copyright — this happens once you publish your blog. However, you must register any copyrighted material prior to bringing a law suit for infringement. This does not mean that you cannot contact the infringer through a cease and desist letter in hopes that the infringer will take down your copyrighted material or obtain permission to use it, or even report the infringer to search engines to get them to take down the material, thereby avoiding the cost and headaches of a possibly lengthy litigation. Another best practice is to always include a copyright notice on your blog with contact information as well as information for obtaining permission to reprint material on your blog.
What about the information that you post on your blog that is not original, that came from someone else’s website or blog? Let us consider what you can use and how you can use it, and by extension what others can use from your blog before you, or your attorney, start sending out a blizzard of cease and desist letters.
The use of text and/or images from another website: The use of text and/or an image that has been copied from another’s website and pasted into your blog without permission of that website’s owner is considered copyright infringement under federal law. That website’s owner may ask you to remove the image from your blog and if you fail to do so, you may be the subject of a law suit. Your defense to such action could be fair use. Fair use is a balancing test that exams your purpose in using the image, the nature of the original work, the amount of the original work used, and the effect of your copying on the potential market for the original owner.
Two common workarounds to the copyright issue on blogs are inline linking and thumbnails. Inline linking is when an image appears on your blog but is in fact being pulled directly from the original site and so is linking to that site. An example of this is Google images. When you click to see the full size image through Google, the court has ruled that this is not an infringement because the image is in fact being generated by the original server, not the Google server. However, this is not completely settled law and you are not Google, so you should not think that inline linking gets you off the hook in every circumstance.
Thumbnails are simply smaller, lower quality versions of the same image that link to the source. The law on thumbnails is a bit clearer. As long as you are actually creating thumbnails, which have standardized dimensions, and aren’t just reducing the size of an image slightly, the 9th Circuit has held that thumbnailing is protected under the fair use. However, this does not mean that all thumbnails are protected in every circuit in the country.
Generally, to avoid trouble, it is best to seek permission from the owner of the website from which you are taking the image.
Next: Part 2: Choosing Your Name in Your Domain Name
Bloggings Issues: Rights of Publicity and Defamation
Blogging is such a prevalent activity these days. There are blogs for any and every activity, political party, hobby and interest under the sun. There are blogs for products and companies. And there are also blogs that are little more than one’s personal journal to the world. However, in spite of the ease of starting your own blog, there are still laws and rules that must be followed.
This guide is meant to highlight and explain what you must keep in mind when starting and maintaining your own blog. It will be broken down into six sections starting out with considerations of what you can write on your blog and what is protected, continuing through the intellectual property considerations of what is posted on your blog, then onto what you should consider if using your blog for business and sales, next a discussion of the legal ramifications of posting reviews and other such material on your blog, and finally a look at your rights and duties with respect to your readership.
As with all information pertaining to legal issues, this guide is not intended to replace competent legal counsel and should not be relied upon as such. The purpose of this information is to give you a big picture awareness of the law and possible legal issues that may affect you in setting up and administering your blog. It is recommended that you seek competent legal counsel for questions you may have that relate to your specific circumstances or go beyond the scope of this guide.
Protectable Speech on Your Blog
Bloggers must obey certain laws that balance the free speech rights of the blogger and the rights of the people who are the subjects of the blog to not be injured by what has been written.
Rights of Publicity: The right of publicity or in some states, the right to privacy, is a claim alleging that you have used someone’s name or likeness to your commercial advantage without consent, resulting in loss. The plaintiff generally must prove that you’re using their image or likeness for advertising or other solicitations. You can be liable if a court determines that your use implied a false endorsement. In some states, rights of publicity die with the person. In others, however, this is not so. California, for example allows these rights to go on for 70 years after a person’s death, provided that the actionable event occurred during the lifetime of the person. For example, anything you say about Michael Jackson endorsing your blog or products may be in bad taste but may not actionable because he is already dead and could not be believed to be endorsing anything anymore.
Defamation: Defamation is a false statement that is harmful to someone’s reputation, and published “with fault,” meaning that you knew or should have known that it was false. Libel is a written defamation; slander is a spoken defamation. Defamation is determined differently by the laws of each state, but generally, the elements to prove defamation are:
- A publication to one other than the person defamed
- A false statement of fact (this does not include opinions or statements of hyperbole)
- That it is understood as being of and concerning the plaintiff; and tending to harm the reputation of plaintiff.
- If the plaintiff is a public figure, he or she must also prove actual malice.
You cannot be sued under defamation for making statements of truth. However, there is a publicity right called false light that can make you liable for using factual information in a way that gives a false and damaging impression to the public. For example, including a picture of a non-terrorist in a post about terrorism, whereby the picture is factual, but by placing it within a blog about terrorism, you give the impression that the person is a terrorist when he/she is not.
Opinions and hyperbole are also not actionable under defamation. You are free to speak your mind about people on your blog, as long as it is clear that you are delivering your opinion and not trying to assert a fact that is false and damaging, or fact dressed up as an opinion. A court will ask whether a reasonable person could understand your opinion to be an assertion of truth. It is true that most blogs are viewed by the public as opinions and hyperbole and the context of most statements within your blog will reveal this to be true as well; however, as a blogger you must look at the larger picture. Your blog text will be accessible to all, via the internet. This morning’s blog post may find its way to a news website by lunch and next hop to onto the evening news. It may be true that you can show that you have a defense based on opinion, context, etc., but you still must go through the expense in time and money of answering the charges against you.
Changing the names to protect the innocent may also not be enough if a reasonable person would know who you are referring to by the context of your post.
One last and important note about defamation and republishing defamatory statements. You may be held responsible for defamatory statements that you post on your blog that you have taken from another source. So again, be careful about passing on juicy gossip. A blog is a publication and as such, there may be legal consequences to you just for passing on the information.