One of those lessons is a primer in mass media law. By publishing works to the Web, one is essentially performing much of the same function as newspapers and television stations did exclusively just a few decades ago. However, the laws that govern such publications are not taught in most high schools nor most colleges.
So what should a blogger know about the law before they put up their first post? There are many things, certainly more than what can be covered in this post, but here are twenty questions every every blogger should be able to answer.
A Few Notes
It is worth noting that all of the questions as well as their answers are based upon U.S. law. If you reside in a different country, obviously the rules are going to be different.
It is also worth noting that not all of these questions have “hard” answers as there is a lot of gray area. Still, it is important to understand where the hard lines are drawn and what is likely to put you on the darker side of the gray.
1) What is the current term for copyrighted works?
The current copyright term, for works created since 1978, is the life of the author plus 70 years for works of personal authorship and 95 years for works of corporate authorship. (Source)
2) What are the rights associated with copyright ownership in a work?
Copyright includes the right to copy, distribute, prepare derivative works and perform/display works publicly (including via recording). (Source – PDF)
3) What are the four factors weighed in a fair use decision?
The four fair use factors are the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for or value of the copyrighted work. (Source)
4) Does a work have to display the © symbol to be copyright protected?
A work is considered protected when it is fixed into a tangible medium of expression. Though the use of the © symbol was a previous requirement of copyright ownership, it is no longer necessary for a work to be considered copyrighted. (Source)
5) What are the benefits of registering your work with the U.S. Copyright Office?
Though registering with the USCO does not add any additional rights, it creates a public record of your work, enables you to sue for infringement and serves as prima facie evdience in the event of a court case. Furthermore, if you register before an infringement or within three months of publication, you can claim statutory damages. (Source)
6) Are you obligated to remove infringing works from your site if they were posted by others?
According to the Digital Millennium Copyright Act of 1998, sites that are operated within the U.S. are required to remove works alleged to be infringing by copyright holders so long as the copyright holder provides a full and complete DMCA notice. Failure to do so may result in the host being held liable for the infringement. (Source)
7) What is the difference between slander and libel?
Slander is spoken defamation and libel is defamation that has been printed or is otherwise fixed. (Source)
8) What are the requirements for defamation?
A plaintiff in a defamation case must prove three elements including a publication to one other than the person defamed, a false statement of fact that is understood as being of and concerning the plaintiff and tending to harm the reputation of plaintiff. Finally, if the plaintiff is a public figure, he or she must also prove actual malice. (Source)
9) What are the defenses in a defamation lawsuit?
The main defense in a defamation case is “truth” but there are other defenses such as privilege, which covers statements in a courtroom among other limited exceptions, “opinion”, which means the statement was not one of truth but a personal view and “fair comment on a matter of public interest”, which deals primarily with ones views on a public matter. Note: Not all defenses are recognized in all locations. (Source)
10) Are you obligated to remove allegedly defamatory works posted by others from your site?
Though you are legally accountable for what you post to the Web, Section 230 of the Communications Decency Act prevents you from being held accountable or being forced to remove defamatory statements posted by others. (Source)
11) What are the four types of privacy torts?
The four different privacy torts are appropriation, meaning the use of ones name or likeness for commercial gain without permission, intrusion, which is an invasion of one’s private space, public disclosure of private facts, and false light, which is similar to defamation but not necessarily wholly defamatory. (Source)
12) What is a “reasonable expectation of privacy?”
A reasonable expectation of privacy only exists if the person involved believes that they are in a private place and society as a whole would likely agree with them. (Source)
13) How does one become a “public figure”?
A public figure is anyone who is either a public official or otherwise interjects themselves into a public debate in hopes of altering the outcome. A person can also become an involuntary, but limited, public figure by being involved in an event of public importance. (Source)
14) It publication a requirement for all privacy torts?
Publication is not required in “intrusion” privacy torts as the violation occurs at the moment of intrusion. (Source)
15) Does the news value of a fact make it acceptable to publish private material?
If a fact is of public concern, meaning that reasonable members of the community could entertain a legitimate interest in it, then the publication of private material is generally acceptable. However, it is important to ensure that the fact itself is pertinent to the story itself. (Source)
16) What is a trademark?
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. (Source)
17) What does a trademark protect?
A trademark is designed to prohibit competitors and others from using the mark of a company in a way that is likely to cause confusion in the marketplace. It does not prevent all use or copying of the mark. (Source)
18) Does a trademark have to be registered to be valid?
No. You can establish a trademark by using it with good faith in the marketplace. However, you are required to register your mark to use the “R” symbol. (Source)
19) Can a blogger use a logo of a company on their site to write about them?
Yes. So long as there is no confusion created or any implication of a relationship that does not exist, a blogger can use a logo from a company to talk about them. (Source)
20) Is it legal to use a company’s name in a blog title or URL?
Yes, so long as there is no confusion nor any attempt to to use the name and reputation of the trademark to further your own business. (Source)
In the end, this isn’t a complete list by any stretch, but it is a beginning. If you’re a blogger and you aren’t comfortable with how you were able to answer these questions, especially if you blog about other people or use intellectual property from other sites, you might want to bone up.
To that end, the source links in this column point to some great legal resources for bloggers and the public at large. One each of the questions, there is plenty of additional information toi read through as this is just a brief overview of each one.
This is information that can keep you out of court and keep you on the right side of the verdict if you are sued. It’s worth spending some time to learn and understand.