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Legal-considerations-for-bloggers-Jorgensen

  1. 1. Legal Considerations for Bloggers: What You Don’t Know Can Hurt You Erica Jorgensen WordCamp Seattle June 28, 2014 @JorgensenErica #WCSea 3
  2. 2. Blogging & Writing Background 4
  3. 3. What We’ll Cover 1. Freedom of speech 1. Copyright 3. Fair use 4. Trademarks 5
  4. 4. What We’ll Cover 5. Libel, slander & defamation 6. Online marketing law 7. SLAPPs 8. Resources 6
  5. 5. 2 things to remember: • Think twice before you hit publish! • Laws are struggling to keep up with changes in technology and media 7
  6. 6. Legal quiz #1: If your blog gets caught violating the law — whether it’s copyright infringement, libel, or a misleading, overpromising marketing claim, who’s legally liable? A) You B) Your Internet service provider C) It depends on which state in which you’ve published 8
  7. 7. A) Yep, you. ISPs are no longer liable. Libel laws vary by state. 9
  8. 8. 10 Image courtesy of Lauren_Measure // Flickr Creative Commons
  9. 9. 1. FREEDOM OF SPEECH 11
  10. 10. Freedom of speech • It’s a misnomer: No, you can’t really say anything you damn please on your blog. • WordPress is so easy to use=its riskiness • Students and marketers, beware. 12
  11. 11. 2. COPYRIGHT 13
  12. 12. 14 Photo by MikeWas // Flickr Creative Commons
  13. 13. What is copyright? Copyright is a form of protection for original work— artistic, musical, written, etc. 15
  14. 14. Who’s been called out on copyright issues? • MSN bloggers & producers • Mike Hipple, a very nice Seattle photographer • Cheezburger Network • The TODAY Show • The Seattle Weekly (just yesterday!) • Roni Loren, Blogher.com (700 posts revised!) 16
  15. 15. 17
  16. 16. IT’S NOT OK TO USE SOMEONE ELSE’S PHOTOS or CONTENT WITHOUT PERMISSION OR ATTRIBUTION. *See also: Fair use 18
  17. 17. Copyright violations They can cost you, in both $ and reputation. Think like the owner of a big blog. 19
  18. 18. WordPress & copyright I agree: “…to not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party.” http://en.wordpress.com/tos/ 20
  19. 19. Unique photos & attributions • Using unique photos—and giving proper credit to photographers—is good for SEO. • One of Google’s SEO ranking factors is ALT text. (describe photo + give credit to photographer) • http://www.w3schools.com/tags/att_img_alt.asp 21
  20. 20. Play nice & remember this guy Photo of CJ Gunther by Matt Campbell 22
  21. 21. Copyright: The good news • You own the copyright to your blog, just by having created it. • Exception: If you’re blogging for a company. 23
  22. 22. Check your blog’s copyright year! © 2014 My Awesome Blog 24
  23. 23. Got awesome blog content? Protect it. http://www.copyright.gov 25
  24. 24. What’s public domain? It refers to material that can be freely used based on the date of creation and/or its creator’s year of death Disney lobbied to change copyright law to keep Mickey Mouse out of the public domain. 26
  25. 25. Open source websites Content has been specifically granted public domain status 27
  26. 26. 3. FAIR USE 28
  27. 27. Fair use Refers to how much of someone’s copyrighted work you can reproduce without paying its creator, or first getting written permission. It’s usually ok to briefly quote part of someone else’s writing with attribution 29
  28. 28. 30 http://fairuse.stanford.edu/overview/fair-use/cases/
  29. 29. Be extra careful with: • Songs & song lyrics • Recipes (with trademarked ingredients) • Works of art • Photos • Don’t go there: Anything related to Disney or Gershwin 31
  30. 30. Legal quiz #2 What’s probably the fastest way for a blogger to get into a legal mess? 32
  31. 31. Answer: Music. Even background music in videos is subject to takedown notices. It’s safest to get (& pay for) permission to use a song via ASCAP or BMI, or create your own music 33
  32. 32. 4. TRADEMARKS 34
  33. 33. Trademarks: Respect the ® • If a product or company name is trademarked, it’s been filed with the U.S. Trademark Office. • It can take years for a company or product to earn registered trademark status. Respect it. • Give credit to any product names or taglines, etc. that are marked with ™ or ®. Licensing fees may apply, too. 35
  34. 34. 5. LIBEL, SLANDER & DEFAMATION 36
  35. 35. LSD • A statement isn’t libelous if it’s true—but you need to be able to prove the truth. • Laws pertaining to LSD vary by country. And laws that pertain to your blog are determined by the country it’s read in, not the one it’s created or published in. 37
  36. 36. 6. MARKETING LAW 38
  37. 37. 6. Marketing law http://www.business.ftc.gov/documents/bus28-advertising-and- marketing-internet-rules-road 39
  38. 38. Marketing law Typical FTC fine for non-compliance: $16,000 Be especially careful of promotions & contests! 40
  39. 39. 41 7. SLAPP LAWS
  40. 40. SLAPP! Strategic Lawsuit Against Public Participation Good news: Wash. has passed anti-SLAPP protections. 42
  41. 41. Thinking about the future As software gets smarter, it’ll be even easier for companies and copyright owners to track down copyright violations and send cease & desist warnings. 43
  42. 42. Need Legal Help? 1) Nolo Press: http://www.nolo.com 2) Online Media Legal Network: https://www.omln.org 3) Locally: FocalLaw.com 44
  43. 43. 8. RESOURCES AND REFERENCES 45
  44. 44. Resources 1 of 5 • ASCAP (American Society of Composers, Authors and Publishers), for obtaining online reproduction rights to many songs : http://www.ascap.com & http://www.ascap.com/~/media/files/pdf/licensing/general/brochures/ascap_keeps_yo u_in_tune_with_the_copyright_law.pdf • Copyright terms: https://copyright.cornell.edu/resources/publicdomain.cfm • Cornell Legal Library: www.law.cornell.edu/ + legal encyclopedia: http://www.law.cornell.edu/wex • Defamation: http://www.nolo.com/legal-encyclopedia/defamation-law-made-simple- 29718.html • Digital Media Law Project: http://www.dmlp.org 46
  45. 45. Resources 2/5 • Digital Millennium Copyright Act: http://www.ala.org/advocacy/copyright/dmca • Doocing: http://corporate.findlaw.com/intellectual-property/dooces-wild-how- employers-can-survive-the-new-technological.html https://digital.law.washington.edu/dspace- law/bitstream/handle/1773.1/190/82washlrev121.pdf?sequence=1 • Electronic Freedom Foundation on intellectual property:https://www.eff.org/issues/bloggers/legal/liability/IP • Fair use: http://fairuse.stanford.edu/overview/fair-use/cases/ • General legal issues for bloggers:http://weblogs.about.com/od/bloggingethics/tp/Legal-Issues-Bloggers-Must- Understand.htm 47
  46. 46. Resources 3/5 • Getty Images & lawsuits for unlawful image use: http://www.businessweek.com/articles/2014-03-06/since-it-cant-sue-us-all-getty-images- embraces-embedded-photos • Legal resources in Seattle: http://www.impacthubseattle.com/legal & focallaw.com • Legal marketing guidelines: http://www.business.ftc.gov/documents/bus28-advertising-and- marketing-internet-rules-road • Libel: http://www.law.cornell.edu/wex/libel • Likelihood of Confusion blog: http://www.likelihoodofconfusion.com • Mike Hipple lawsuit: http://blog.seattlepi.com/thebigblog/2011/06/30/lawsuit-over-seattles- dancing-footprints-settles/ 48
  47. 47. Resources 4/5 • Marketing--more on Cole-Haan’s marketing warning: http://digiday.com/platforms/ftc- pinterest/ • Poynter Institute: www.poynter.org (for awesome media issue coverage) • Recording phone conversations: http://www.dmlp.org/legal-guide/recording-phone-calls- and-conversations • http://www.thefirstamendment.org/antislappresourcecenter.html (SLAPP resource) • U.S. Patent & Trademark Office: http://www.uspto.gov/trademarks/law/index.jsp • WordPress’s terms & conditions: http://en.wordpress.com/tos/ • World Intellectual Property Organization: http://www.wipo.int/treaties/en/text.jsp?file_id=283698 • Solid copyright overview from USPTO: http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf 49
  48. 48. OMG more resources 5/5 • Disney/Sonny Bono copyright/public domain extensions: http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act • & the case where a local firm took on Disney: http://www.printmag.com/interviews/modern-dog-copyright-and-the-burden- of-proof/ • Plagiarism prevention: http://mashable.com/2012/08/29/plagiarism-online-services/ 50
  49. 49. Alternative Photo Sources • https://medium.com/@dustin/stock-photos-that- dont-suck-62ae4bcbe01b • http://photopin.com • Creative Commons: http://search.creativecommons.org • https://www.flickr.com/creativecommons 51
  50. 50. Contact information EricaMJorgensen@gmail.com https://www.linkedin.com/in/ejorgensen Twitter: @JorgensenErica 52

Editor's Notes

  • Aeron

    --And I don’t use exclamation points liberally—each writer gets two a year!

    --Publishing is forever!
    --Karma is a bitch!

    --The Wayback Machine and many web analytics tools can show what was published, even if just for a minute.

    --Supreme Court case this week: video streaming

    --You may think you don’t need to worry about this stuff—but you should, especially if your goal is to get big and gain a lot of traffic.



  • --If any of these terms are intimidating, take that as your instincts kicking in.
    --When in doubt, get legal advice

    --Nordstrom ran every single blog post (and website update) through their in-house legal team before publishing.
    Not every company can afford to do this—startups especially—which is all the more reason to be careful and know what you’re potentially getting into, legally.

  • --**International laws!! Your blog is subject to the laws of the country in which it’s read, not created. 8-0

    --ISPs got smart & demanded that they no longer be liable (2008)

    This is (partly!) why lawyers are paid so much.

    Also: It’s illegal to tape record or video record people without permission in some states, FYI for anyone interviewing.

    If you want to cure insomnia, check out Nolo.com’s page on copyright

  • --This photo source is one of the open source options I list in the references & resources.
  • Also see: Libel

    --It’s a Constitutional right—First Amendment—but has its limits

    --Not even going to cover obscenity law…sorry!

    --LSD, and obscenity law of course are parts of FoS that are limited.

    --As awesome as the constitution is, the First Amendment is one of the most problematic amendments…

    (did you know you can watch porn in SPL? Legally?)

    (Just this week, the Supreme Court ruled a video-streaming company was illegal & it’s getting shut down.)
    http://www.npr.org/blogs/thetwo-way/2014/06/25/325488386/tech-firm-aereo-performs-an-illegal-service-supreme-court-says







    --Students are NOT fully protected by Freedom of Speech, but often aren’t aware they’re not. This used to pertain only to where printed publications were distributed, but with the rise of
    electronic distribution, schools are cracking down.



    DETAILS:

    Hazelwood vs Kuhlmeier, a case of the school paper printing stories about teen pregnancy & divorce. Student publications are seen as educational activities, not public forums, and are therefore subject to stricter limitations on freedom of speech

    http://en.wikipedia.org/wiki/Hazelwood_School_District_v._Kuhlmeier

    Spurred by Vietnam: Tinker v. Des Moines Indept. Sch. Dist., 393 U.S. 503, 506 (1969). School upset about anti-Vietnam demonstration on campus. If a publication “disrupts school discipline,” the students’ freedom of speech rights can be restricted.

    Lewd communications were restricted in 1986: Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683-86 (1986), right near us in Pierce County, WA.
    http://en.wikipedia.org/wiki/Bethel_School_District_v._Fraser

    http://aclj.org/education/student-free-speech-rights

    --Employees of various companies may not be allowed to blog on their own time, either—depends on your contract.

    --This limitation on students includes college students! **Rights depends on where the publication is distributed ** Even if there’s no libel involved. Rapes, college administration issues, etc. are especially prone to censorship.

  • When it comes to copyright, don’t be oblivious.

    --Copyright law: This is where intellectual property lawyers get involved.

    --Copyright is confusing!! http://www.nolo.com/legal-encyclopedia/copyright-basics-faq-29079-4.html

    If you have insomnia:
    All works published in the United States before 1923 are in the public domain -- that is, not protected by copyright law.
    Works published after 1922 but before 1978 are protected for 95 years from the date of publication. But if the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years.
    If the author died over 70 years ago and the work was never published, copyright terminated on December 31, 2002. If the author died over 70 years ago, and a previously unpublished work was published before December 31, 2002, the copyright will last until December 31, 2047.

    --How to copyright your own work?
    Publication date is important
    --register with the copyright office, but expect a wait!

    --You can contact ASCAP, one of the major music licensing houses, to purchase rights to a song.





  • --Just a few examples!!

    --MSN: Freelance bloggers fired! Fashion Week coverage Steven Meisel photo used without permission or credit PLUS an uncomplimentary quotation about is latest collection
    --MSN: Fired a freelance writer for “accidentally recycling” copy from Esquire (plagiarism)

    --TODAY Show: Interviewing people at Starbucks, with background music running. Videos pulled from distribution.

    --Harrod’s: April Fool’s joke that fooled the Wall Street Journal into thinking a stock price crisis was imminent

    --Roni Loren: Using photos without permission (see Resources for URL). Updated 700 blog posts!!

    --Cheezburger: Getting cease and desist letters from Matt Damon’s agent

    **Seattle Weekly “borrowed” a photo yesterday and Capitol Hill blog called them on it



  • *=over 40 words

    If you’ve cropped out a watermark, you’ve ripped off someone.

  • Getty Images: Going warning letters are asking for $8.000 or more for image use violations.

    Mike Hippel: $60,000

    Just bc your blog is little, don’t think like a small-potatoes operation. Act like your blog has 20,000 followers (because that’s where you’d like to be someday, right?)
  • Just because everyone else seems to be “borrowing” photos and image doesn’t mean you should.


    This is also true for attributions for stock photos.

  • **invisible watermarks

    This is CJ Gunther, a professional photographer, shooting the Vancouver Olympics.
    Note he’s far from home freezing his ass off, and carrying a camera that weighs more than a small child.

    If you’ve ever cropped out a watermark, remember this: there are invisible watermarks. He works for the European Press Agency, and also runs a photography business on the side.

    If you copy photos on the Internet, you’re ripping off nice people like CJ, and doing a disservice to all web content creators.
    Also—karma is a bitch. Think about that before you “borrow” a photo or crop out a watermark.

  • *: If you created it for your company, they own the rights.

    Especially for awesome photos
    Especially for an extra-awesome post (esp. if you want to turn it into a book)
  • **Make a recurring appointment on your phone to update it every Dec. 31. !!
  • **cheap, but the wait is about 9 months

    https://wordpress.org/plugins/dmrightscom-content-copyright-protection/
    https://wordpress.org/plugins/digiproveblog/faq/
  • -- Copyrights aren’t always labeled, but that doesn’t mean something is in the public domain!

    The estate of Sonny Bono, Cher’s ex-husband, was also involved in this

    NEED A PH.D. to keep track of this craziness. Confusing as hell.

    DON”T DARE use any images of Disney

    --Think of it as the opposite of copyrigth

  • *Fair use: A legally squidgy area, so watch it.

    40 words of a novel or book, or less than that for an article

    it’s taken on a case-by-case basis, depending on the length of the work, and is subject to legal interpretation, so watch it.

    http://fairuse.stanford.edu/overview/fair-use/cases/

    In doubt? Don’t use it or contact a lawyer
  • Actually a wicked interesting site…
    JD Salinger, Harry Potter, Prince…interesting & good stuff here
  • Not as bad as it sounds…
    (Hooray Washington state for having legislated protections for you!)

    May be incurred by bloggers who raise the ire of developers, politicians, etc.

    Example: Blogging about Ballard’s out of control housing construction could raise the ire of the construction company, who could file a suit claiming slander or libel…
    Criticizing a politician could also get you
  • Invisible watermarks

    Photo- and face-recognition software advances
  • http://fairuse.stanford.edu/overview/fair-use/cases/


    More fair use:
    http://www.blogher.com/bloggers-beware-you-can-get-sued-using-photos-your-blog-my-story
  • --Marketing claims must be substantiated!

    --Push marketing (e.g.: emails or newsletters that you send to customers or people who’ve requested them) are covered more strictly than pull marketing (ads that people merely stumble across, such as an online ad). Be careful of email subject lines to not overpromise!

    --ASCAP is supporting the Songwriter Equity Act: http://www.ascap.com/playback/2014/05/wcm-blog/shannon-hurley-pandora-sea.aspx





    --Contests are now on the Federal Trade Commission’s radar due to the proliferation of Internet (esp. Facebook!) contests.


  • --Recording phone conversations can be important---it seems to be a trick among (insecure) celebrities.

    If a source asks you to run your article or post by them before publication, and they don’t like one or more direct quotes, and you say that you have the conversation tape recorded (without permission), they can renege and demand that you not publish the piece.
  • These are also pretty affordable!

    More on Getty Images’ take-down notices: http://www.avvo.com/legal-answers/cease-and-desist-letter-received-from-getty-images-5053.html

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