OFFICIAL BLOGHER '10 LIVEBLOG: Mastering Intellectual Property Law

BlogHer Original Post

Intellectual Property (IP)

Latoicha Givens, founder of the IP law firm Phillips Givens, LLC and blogs at iplaw101.com

Wendi Seltzer is an attorney and law professor specializing in trademark (TM)and copyright (CR) law. She blog at legaltags.com

Resources:
Chillingeffects.org
Creativecommons.org
IPlaw101.com

Cover the following 4 topics:
1) Protect your IP rights
2) Protecting others IP rights
3) Privacy issues
4)Your responsibility as a site owner

IP entails: Trademarks, Copyrights and Trade secrets (do not blog or disclose to public). CR and TM are the most common forms of IP.

Copyright – covers blog expression a.k.a creative expression, design, photo, content. It does not include facts, functionality, or lists of restaurants. Reviews are protectable expression since they are personal expression.

CR protection is automatic – do not need to register to get the basic level of protection, which protects from others use within your region.

A registered CR gives you full protection nationwide. Another benefit is once you license a CR, you can allow others to use it freely in exchange for compensation. Also, it allows you to go forward directly with statutory damages, meaning you don’t have to prove others used your work.

TM: protects unique identifiers of goods/services: company names, logo, tag lines --- coin phrases. Items unique to your particular blog.

Question: If you have TM on your blog name and have a tag line, do you need to resubmit that tagline for TM? Yes. A TM on your blog name only protects your blog name and nothing else.

Why you should protect your TM?
You can loose your TM rights if you do not defend your TM. For example, if you came across someone using your TM items and do not reach out to the user to stop using it, it’s no longer considered unique. You also miss out on royalties, which means income you are entitled to and marketing opportunities, which is specific to how your brand is identified and lastly, you loose business, meaning users that would have otherwise been on your site, are now getting the same content on another bloggers site, lost competition and diverted traffic from your site to competitions site and competition can steal customers.

Question: How do you go about obtaining TM?
Common Law right – if you’re the first to use it, it automatically your basic right within your region, no registration required.

If registering your TM, go to the US Patent & Trademark Office, which covers rights protected across the entire US.

Question: Tagline: do you go about obtaining a CR or TM and what steps would you take to protect it?
Something that identifies the source and helps people identify a brand would constitute a TM. If people identiy your bog through a tagline, it’s a TM. While you are in the process of filing a TM with the USPTO, place a (TM)or SN behind the content, which lets people know you are in the process of registration.

You can also use google search to see how your TM is being used. If you see someone using our TM, you can send them a cease and desist letter asking them to take down the TM’d content.

Question: How do you protect a common phrase such as “be the change” or something out in public domain forever? Can you TM it?
If the phrase is descriptive and used in conjuction with an unique meaning or different context, you can TM it.

A TM only protects a source identifying the function of a mark or a source identifying the generic good.
TM fair use permits you to use it if you are using a common phrase accurately to describe something, or expressive purposes for parody. Therefore, common phrases and words used in unique context can be TM’d.

Question: If you have registered TM for interactive face-to-face educational workshops, and someone is conducting an online workshop using the same content under a different medium, how do you protect the interactive face-to-face workshop from delineation?
Send them a cease and desist immediately.

RESPECTING OTHERS RIGHTS:
Respecting others rights: When are you fairly using the material and when are you reaching the line of infringement?

CR are not absolute. They are there to prevent others from reproducing your work. They can prevent others from commenting, quoting, reproducing a screenshot from a movie/picture we have seen. If you’re quoting a text, artwork, you can make references visually.

Fairness is very case andcontext specific. CR fair use is centered around purpose and character of use . Are you simply duplicating it? Are you making commercial use of someone’s work?
Nature of work – Highly creative fictional work are more protected by law then non-fiction work.

Question: Is there a threshold on the amount of content “used” or copied? There are a lot of guidelines on the wed, such as 5 seconds of a song is fair vs. 20 seconds is unfair. However courts don’t endorse such guidelines. It’s a proportion test. Have you taken the heart of the work, so there is no need see the original work, or have you taken something that is just necessary to get your point across? Be able to justify the amount of product used.

FYI: jamendo.com offers free music use as long as its attributed.

Question: Attribution – Atribute another blogger’s idea by stating “via xyz blog” or by linking another blog or haptip, how appropriate are those behaviors? As of right now, there has been no court case on such matters but generally you want to stick by what the blogging community is doing. You do not want to alienate your readers from thinking you ripped someone else’s work…borrow the community rules. Rule of thumb – always good to attribute even if you’ve taken inspiration from someone else. The law does not rule on inspiration.

Question – Tweets are not registered at the Library of Congress. Does that affect your permanent record? Good rule of thumb, do not tweet on subjects a lot of people tweet. Library of Congress archives all public tweets. Do tweet derogatory or threatening material or even martial’s that may be infringing. You have to hesitate about something you’re tweeting, DON’T TWEET IT!

Question – Can a tweet be used against you in a custody suite? Yes. Facebook comments have been used in divorce suites. Don’t put tweets out there that will expose you to liability.

Question - What do you do when you get a takedown notice? Do you take it down immediately and hash it out later or hash out before taking it down? If you are a CR holder and send a notice of infringement to protect your rights, the blogger’s web host receives a DMCA notice to take down the content, which they in turn notify the blogger. The service provider can give you the option of taking it down now or after. Or they can take it down immediately and will tell you to provide a counter notification form.

If you are the recipient of such a notice, evaluate, do you believe the material is fair use and is it infringing? If you believe it was fair usage, follow counter notification procedures.

Question – photography: For example a well known 1950’s prominent mixer I photographed, Does the company own it? Creator (company) of the object owns creative expression of the object. You as photographer own it in any additional creative expression. Using an image as a logo, gets into TM issues.

Question – Blogs sponsored by international brand. They send information such as a press release. Who owns the content on the blog? It depends on how much your copying and how much you’re creating. If you are recreating factual info and creating your own ideas and opinions behind it then you own it.

Question – Let’s say you blog about baby names and are interested in writing for other websites. Under CR protection when you write for someone else, what type of agreements do you need to enter? If this is a work for hire situation, you work for someone to write something. And although you created ideas behind this, the website holder who engages you still owns the CR.

A good idea to specify these agreements before entering a blog. Good agreements will indicate whether you get to keep the right. As a work for hire, you should be getting something in return for giving up that right…it’s a negotiating point on behalf of blogging for others.

Question - In old days, magazines and news paper bought 1st rights. Now these organizations want to have all rights to your work. Can you reuse the work if its changed? And what’s the definition of change? Change is complicated to define. CR and other IP rights that are bundled together can be pieced out. What you want to do with material after it has assigned rights, is dependent on the contract interpretation. What did you specifically assign? You, as the creator, can even infringe by using your own words if you’ve assigned them to someone else. Assign origination but retain right to re-assign derivative work/make or elaborate original piece.

Question – If you hire someone to come up with jingle for a blog…how do you CR that? Sign an agreement stating you won the jingle 100%. This would be a work for hire situation. Then CR the jingle.

CR can be done online for only $35. You can send in a collection of work under one filing and do not have to file each individual piece separately. Songs, jingles, posts, etc.

Question – For new bloggers, when searching for names for new blogs, what steps can you take to make sure its unique and not infringing on others rights? If you come with a brand – get it TM immediately. There are valid TM that don’t have a website or are not yet a registered business, therefore will not show up on a Google search. Hire an attorney to perform a comprehensive search, which searches everything out there to make sure its unique.

This also applies to using Cease and Desist forms off the internet. These forms readily available are not the best. They are quite “awful”. Sending one of these letters to a larger brand may give off the impression that you are not serious, allowing them the opportunity to may file a TM before you. Hire an attorney to write an effective cease and desist letter.

Questions - Recipes: If you write a article for a major publication detailing a recipe. Is it infringement if I, the author, use the same recipe on my blog? You can’t CR a list of ingredients nor the instructions. Recipes and directions are functional expressions and therefore you cannot CR the. Only CR expression in recipe is the additional descriptions of the recipe, such as scrumptious aroma, or pictures. Individual recipes, ingredients and steps are not coprightable.

III: PRIVACY/DEFAMATION
- Privacy: protection of information. It is there to protect the consumer and service provider.

Disclosure document - which explains collecting users info, how are you collecting it (tech), what you do with information once collected and shared with 3rd party advertiser/vendors.

CR – you can opt for immunity from liability by registering with the CR office and immediately removing the material from infringement.

DEFAMATION: law categorically exempts web posts from liability from their user’s or audience’s posts (such as comments) as long as you the providor of the post is not involved in posting the comment. You as the creator are not obligated to do anything, but good community maintenance, you may want to take it down. It just helps avoid invalid/frivolous lawsuits. Essentially, you are not liable for others defamatory statements made on your blog.

Law does not protect false statements and facts about 3rd parties. You try a product and believe it doesn’t work, you are entitled to the post as long as what you are posting is true, its protected. But if you have fully functional product, but make a false statement, maybe out of spite, like the product broke down on first use and that is not true you are liable for defamation.

Question: Do you own comments made on your blog? You can. Place a disclosure on your comments section that give you a license to do whatever you want with comments made on your blog in the future. There is no implied license to use it.

Question: Terms of Service agreemens you may have signed – does it override your right to a public hyperlink?

Only if you agreed to it under terms of service agreement. Comb through the service agreement.

Resources:
Chillingeffects.org
Creativecommons.org
IPlaw101.com

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