Blogging Issues: Intellectual Property

Posted by Natalie Sulimani

March 2, 2010

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