OFFICIAL LIVE BLOG - Session #3 (2:30 - 3:45 pm), Vocation Track: "Protecting Yourself and Your Work"
By Jeanne B. on September 24, 2009
Set your own attribution, copyright and content sharing policies. Monitor the Internet to make sure your policies are respected. Learn how to fight back against content theft and unfair use. Learn what you can't protect. Protecting your work is important to most of us, but if your blog is part of your career plan, then it's critically important to secure your content. BlogHer deals with this on a daily basis, so Sean Timberlake has double the reason to lead this discussion with Elise Bauer, who says protecting her work could be a full-time job, and foodblogger and lawyer Lisa Johnson.
Sean: Welcome everyone, thank you! This panel is about protecting yourself and your work. BlogHer panels are meant to be informative with great takeaways, but also it's a dialogue - please do ask your questions, but we may already have the answer later in the panel itself, so if we ask you to hold on, we'll come back to it.
Who has had their content ripped off online? It's not so great. Who knows the difference between copyright and trademark? (Show of hands.) Maybe half. What about copyright and creative commons? (Show of hands.) Even fewer. The pivotal point here - how these things can protect you.
Brass tacks: the legal elements of publishing content. What is copyright, and do you need to have a notice on your site?
Lisa: First, a disclaimer - she cannot give legal advice -- that really needs to be one-on-one. Everyone's situation is different, and this panel is just a general discussion. Not full-on legal advice here, just general information.
Copyright is a bundle of rights - property rights - and is something that can be transferred to other people. Basically if you put something in a fixed form like literary expression, which is most applicable to recipes, and if you have something you've created on your own, it's a right that you can use how you like. It's your creation, you handle it how you want.
You don't need a notice on your site. Copyright applies as soon as you post it. The notice does help so that readers know your take on it.
Elise: It's just to inform people that your written expression and your photograph expression is copyrighted by default. Just because you don't have a notice doesn't mean your work isn't already protected by US copyright law. Copyright.gov has the entire law available to read through. It's a right that you have -- it protects original expression but not ideas.
Lisa: When we look at recipes, recipes in general are not copyrightable because there's a list of ingredients and directions. The list is not copyrightable in general; directions and anything else in your post adds to the literary expression. The literary expression is original to you; generally if you add more detail, that is what will help you have something that will be copyrightable.
Elise: The recipe alone is not covered -- it's a method, and methods can't be copyrighted. The list of ingredients, never, but the method -- if it's personalized and detailed and unique and an original expression, that can be protected. Basic recipes with basic techniques -- you can't copyright that. Recipes are not protectable -- it's how you write about them that might be. International Association of Culinary Professionals says, make the method as specific and in your own voice as possible -- make it unique, make it yours, and that is protectable. The method and how-to? It's just a method, it can't be protected.
Sean: "Stir for five minutes" versus "stir with the handcarved wooden spoon from your loving grandmother".
Lisa: Recipe law is not a big area of law, but there are a couple of cases about recipes. A couple say they're not copyrightable, but they take great care to say that recipes are not necessarily NOT uncopyrightable. So there are situations. If you take great care of personalization, and weave it all together, it's more protectable.
Audience: Are headnotes copyrightable?
Elise: Yes, headnotes and photos are all protected by default. When people steal work, they steal a lot -- her site gets ripped off usually at least once a month, a hundred a week -- twice this week she's gone after two sites that ripped off over 100 recipes. Collections are protectable! If they take 100 of them, you can say "hey, that's a collection, that's copyrightable". So that's in your favor when people take a lot of your work -- it's actually better when they take more than just one.
Lisa: Methods and directions aren't copyrightable, but not necessarily unprotected. A lot of food that's become scientific food -- they've become patented foods to protect methods of creations. Commercial kitchens, restaurants, can use patents as a way to protect their methods.
Elise: Coca-Cola's recipe, for example, is a trade secret. You can register something as a trade secret, but then you have to protect it.
Lisa: Do you need to register it that way?
Elise: I think so?
Lisa: Great efforts to keep the recipe secret, non-disclosure ingredients.
Sean: What about reverse engineering, and deriving a trade secret recipe?
Lisa: Once the secret's out, it's out. But people take great pains to protect them -- Kentucky Fried Chicken, for example.
Audience: What do you do when people steal from your blog?
Elise: There's a process -- we'll get into it.
Audience: So there's filing copyright versus automatic copyright -- there are different classes of copyright.
Lisa: You have a copyright in something you've put down in fixed form automatically -- you don't have to register it. But if you want to file an infringement claim in federal court, you do need to have it registered. There are different damages available.
Elise: You get a lot more money if it's registered.
Audience: They're saying if you're not registered, you have no standing and thus no damages.
Elise: You have to prove the amount of money you've lost, and it's harder without a federal registration. I have two Intellectual Properties lawyers on retainer. One of my attorneys is suggesting I make a copy of my site, put it on a CD, and register the CD with the copyright office. If these scrapers make copies once I have the copyrighted CDs, I can get damages. It's on my list of things to do.
Lisa: In terms of registering with United States copyright office, some people use "myfreecopyright.com" as a way of noting their copyright. Some people use the notice and could be useful as evidence against scrapers, but just because it's registered with myfreecopyright, it's not the same as US copyright office. It's not the case for additional damages.
Elise: The big benefit is that you can go after damages. Her attorney said if you register your work, I (the attorney) can go after damages and take pay off of a percentage of that, versus working on contingency. "I'd rather be cooking, I just want them to stop!"
Audience: It's good blogging karma to attribute when she started out, but now she has lawyers telling her to chill out -- that if she tells everyone the original recipe inspiration, people will want to get their share of credit/money for her work. Bloggers are nice and linky, but lawyers don't want that!
Sean and Elise: You changed the method, and now it's a different recipe completely.
Audience: You have to put it on a CD?
Elise: Instead of printing it all out, you can put it on a CD to send to the office.
Audience: In terms of adapting recipes, there's an unwritten rule that you need to change three things to make it your own to publish it. Would you go back and reference your inspiration?
Elise: Give credit wherever you can. We're all learning from each other. If you want to take someone's exact recipe, ask them first. They say if you change three ingredients, you can call it your own recipe. It's nice to say where you're inspired, but once you've changed three things, it's yours.
Audience: The IACP guidelines are three items in the ingredient list, which is presumably more than ten percent changed, makes it yours. But again, an ingredient list cannot be copyrighted. But there's also the spirit of the recipe -- you can change ingredients, change method, give credit where due -- but you need to have your own spirit in the recipe, your own words.
Elise: Personalize the instructions. It makes them yours. Certain recipes that are classic recipes that we've all been making -- there only so many ways to make a Waldorf salad. Or to bake bread. There's a judgment call there. Credit your sources and your inspiration. You can change a recipe and adapt it and do new things with ideas other people have done originally.
Lisa: That's the issue with a recipe - copyright gives you the right to do certain things, like derivative works. Cooking and recipes are all based on previous works. The work itself is derivative. But the exclusive right is for derivative works...
Elise: That's why they said recipes can't be copyrighted, because it all gets derived. But in Australia? They're protected. So if you are dealing with an Australian blog or book, their laws or different.
Lisa: There are more law review articles of copyrighting recipes, how do you protect different foods, particularly with restaurants and menus now. It's becoming a bigger issue. What do people want? Do you want to have to get permission from the recipe holder whenever you want to use it? Would you pay a license fee? It's not in keeping with the idea of sharing and being part of an open community.
Sean: Let's talk creative commons - how does it protect you?
Lisa: Creative commons goes along with copyright law - what creative commons does is that it lets you license your work how you like. If you use Flickr, you can let someone use your photos but only with a link back to you, only if they don't adapt the work, only if they don't use it for commercial basis -- there are all different types of licenses you can use. People use it for their blogs too. It lets you have control over those copyrights. It's a freer way to share.
Elise: You actually give up rights -- copyright is your strongest right, but creative commons allows people to use your work. Once you let it out into creative commons, you can't backtrack. You can't say, "oh actually no, I want it copyrighted". Copyright, you hold everything, no one can copy without my permission. Creative commons, depending on the license, someone could take it, others can take it, and it just spreads and there's a loss of control that can't come back. Creative commons is great for some things, though -- she wrote a piece on RSS for creatice commons to get exposure, and it went out everywhere -- it was great -- but once you let it out into the world, you don't get it back.
What do I really want to hold onto? Do I really want to be asked for permission every time, or do I just want it to go out there? As long as they don't try to change it or make money off of it? Some things can be released into public domain -- but you can't take it back. A big blogger took an article of hers she's posted with a creative commons license, and he didn't attribute back to her with an active link -- when she contacted him about it, he said, "hey, you released it on creative commons".
Lisa: You think about "all rights reserved", but you give it up on creative commons.
Audience: What's this about Flickr and creative commons?
Elise: When you upload photos for Flickr, you can choose the level of copyright/creative commons. You can pick the rights. By default, they're copyright but you can change it to creative commons if you want. So if a school wants to use a photo, they don't have to email, they can use it.
Audience: There are six different creative commons licenses plus public domain -- it's based on trust in your fellow internet people with creative commons, which means it doesn't always work. No one understands it at all. A lot of people find their stuff in ads that they released on creative commons. There's also a "sharealike" license -- if you use it, you have to use the same creative commons license I have.
Elise: You can look them up and read the purpose of creative commons; definitely go and check it out. Every ten years, the length of copyright extends by ten years due to Disney lobbying to protect Mickey Mouse. It keeps growing and growing. Creative commons came out of concern that we were so restrictive with copyright that we were shutting down innovation that comes from derivative works. We need to create derivative works to grow as a culture.
Audience: It sits on top of copyright, it doesn't replace it. It does require attribution -- "you guys can use it too, but I own it originally."
Audience: Why is this a bad thing, if people use my stuff? Is it a bad thing for me to use creative commons? I get links, it's good, what's the bad part of it?
Sean: How do you know whether your work is being stolen?
Elise: Readers email her, but mostly through Google Alerts -- she uses internal links within her posts, and when "Simply Recipes" is mentioned on Google, she gets an email from Google Alerts. Sometimes it's within a lifted post. She finds out through Technorati, and can see other links to her site from there. One of the biggest spam sources are Wordpress.com and Blogger -- these free services and platforms that allow bloggers to create free blogs to snag and scrape RSS feeds. They're totally scammy blogs, but they still show up in Technorati.
Sean: Definitely the community helps here -- you alert other people, they look out for you too.
Elise: If I see someone's stuff taken, I tell them immediately.
Sean: Knowing that it's been stolen -- why does it matter? Why do you care?
Elise: When the text of her recipes appears in another site, the Google spider might find the scraped site before it finds hers -- they find the duplicate content and give the credit to the source. It could confuse the Google spider so the spammer gets the glory and the legit site doesn't get shown in Google results. So she can't find her own recipes in Google -- she Googles a piece of it and finds out who copied it. If they link back to her, it sometimes tells Google she's the source. If they don't, it hurts her. If you depend on search traffic, and the Google searches aren't working, she loses traffic and revenue.
With photos, sometimes people use them to illustrate their own recipes. Someone took her blueberry pie photo ("it's really hard to shoot blueberry pie!") -- it's "what are you thinking?". If you don't care, that's fine, but if you do care... that's her own work. It doesn't really hurt you, but it sucks. Once the Food Network wanted to use a pulled pork photo -- "this is MY photo, people will think I'M taking YOURS".
Sean: So whether it's an individual or a full on scraping splog -- what's your reaction? How do you deal with it?
Elise: Depends on who's doing it. Admission: when I started, I didn't have a camera, only did it for my family and myself... would search and grab a photo online.
Sean: Show of hands if you've done it? (Audience reluctant to raise their hand.)
Elise: When you start blogging, it's this small personal thing -- "oh, I can't take a good picture, yours is so nice" -- they don't think about it. They don't think it's hurting anyone. She emailed Clotilde of Chocolate & Zucchini and asked for advice on photos. She went through and cleaned out her rip-off photos and took her own. So sometimes people just don't know, they don't realize they shouldn't be doing it -- so she's very nice about it. "I love that you like my stuff, but please don't take my photo, please link back to me, and please rewrite it in your own words, thank you for your consideration". Usually people are really nice about it. The other hand, though -- someone recreated the entire site, from photo to recipe to layout, and had Digg buttons set up so that they were getting Digg traffic. She emailed Digg and went "hey, my site is getting ripped off by this site, fix it". This happens once every month for past two years. It's a constant battle, but it comes with the territory.
Lisa: You have to pick and choose -- what's worth it to you? Can you let it go? But Elise, you're making it your living.
Elise: She's been changing my domain over, but because there were two spam sites during the transfer, Google kicked out a third of her recipes. She had to reapply to the Google index and explain the spammy situation. She'd look through and see all of these spam sites in Google results instead of her real legitimate recipes.
Audience: Why would someone copy your entire site?
Elise: I have over a thousand recipes. They run ads on my content, they make money.
Sean: What about aDMCA complaint? What is it, and how does it work?
Elise: Digital Millenium Copyright Act. Is everyone familiar with Food Blog Alliance? There are lots of articles about foodblogging, copyright and protecting your work. There's detailed information about how to actually file a complaint.
Sean: Denise of BlogHer says it works every time.
Lisa: It was signed into law in 1998, and it's taking a lot of different laws all over the world. One thing that we're concerned with here is when someone is taking your online work, you tell them and make the complaint.
Elise: A DMCA complaint -- track down the webhost for the website. The webhosts are really responsive, particularly the American ones. Different services to find the webhosts and the IP addresses. Then you go to email abuse@thewebhost and you write to complain about copyright infringement on one of their servers. Cite the links that are stealing, cite the sources. Then you say that you certify that you are the copyright holder, and "magically, within days, it almost always is taken down".
Sean: If they run ads, you can talk to their ad networks. BlogHer cuts the ads off.
Lisa: If a splog -- spam blog -- is taking all of your feed and has Google ads on it, get your hands on the Google ad policy. She wrote to Google and had all of their ads pulled.
Elise: Google tells you it may take 30 days; she writes out a letter to Google. They need to investigate that it's valid, of course. You have to be careful and be very specific about the copyright claim that you have. If it's a false complaint, it's $10K against you. But usually when people rip off her work, they rip off the collection. So need to have some grounds. Fastest way is through the webhosts. But if it's international, it's harder (like Russia). If they have Google ads, file with Google Adsense. If it's a Blogspot site, Blogger now has an online place to submit claims. There's a link in the Food Blog Alliance article about DMCA.
Sean: How can you prevent this from happening in the first place?
Elise: ...Is that on the agenda? (Laughter.) Some people watermark their photos -- I don't think it helps, I think it futzes with the user experience. It's about having partial RSS feeds -- if you publish a full RSS feed, everyone pulls it. A partial feed stems the overwhelming tide, though.
Audience: What about fair use, and when does it end? When does it come into copyright infringement?
Lisa: It's an exception to the copyright rule - somebody may have the full copyright, and if someone wants to use a piece of it, the exception says a certain amount can be used for critique, satire, parody, etc. which is an okay way to use it. But what amount is fair use? There's no clearcut rule, but there are things you can look at. What's it going to be used for? Are you going to use it to make money? How much are you actually using? For photographs, using a thumbnail versus a full picture can be fair use. Definitely ask and get permission if you can, which is the easiest ways to do it. If you can't, then just use a very small amount. When you're taking money away from someone else, that's no good.
Sean: Let's get back to derivative works and copying. David Lebovitz on Food Blog Alliance wrote a post about the gentle ethics of derivation and attribution.
Audience: What about trademarking?
Lisa: You can trademark a word, mark, or symbol that identifies the source of a good. There's also a service mark which identifies the source of a service. Unlike copyright or patent, which rewards innovation and creativity, it's a different perspective - it's to protect the consumer from confusion. You don't confuse where things are coming from. If someone's last name is Gucci and they want to design handbags and want to trademark it... it's probably not going to work out well.
Elise: Her site is trademarked and has been for three years. She's able to say "you're violating my trademark". Sometimes they steal "Simply Recipes" itself. The trademark gives her more ammunition to go after them. It helps to get domains, too -- she didn't think to get the misspellings of her domain name, so someone else got them. It put her in a better negotiating position to buy it from them because she owns the trademark.
Lisa: It's also similar in that you can put "TM" notice, but you can't use the "R" unless you've actually registered it with the patent and trademark office. If you want to sue for infringement, you have to be actually registered for additional damages.
Elise: It costs about $350 to register, and you can do it yourself. US Patent and Trademark Office.
Audience: So we should go ahead and get your trademark to protect yourself? If you're just starting out, would you suggest it? Or wait until you have more to protect?
Elise: It's more to do with commitment, but go ahead and start the trademark process. It goes back to the day you start the process. If you know that you're going to build something and it's distinctive and you don't want to confuse your users, then get the trademark. If you don't have it, you're not well-protected.
Lisa: Once you have it, it's up to you to enforce it.
Elise: You can't trademark something that's not out there in the world. You have to enforce it and you have to prove that you're enforcing it. Some companies get trademarks for products they never brought to market or killed ten years ago.
Audience: Have you ever got damages?
Elise: All I care about is having them stop because it hurts me; it hurts my revenue when I get kicked out of Google. I just want to send the message that I will defend, I will shut your site down. When I get them shut down, and I shut them down every month, I just send a big message which is "don't mess with me, because I will shut you down, and all of your hard work will be all for naught."
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