Copyright Law: Blogging and Business

Did you know when a band plays a cover song the venue is responsible for having the appropriate license for the material?    This allows the venue owner to avoid running afoul of copyright infringement.  Copyright law plays a big role in many businesses.  In blogging especially these laws have a huge impact.    Today’ I want to take a timeout from our normal financial advice posts to talk about business and Copyright protection.

What is a Copyright

So what is a copyright?  In general, it is a type of protection that protects artistic works from unauthorized usage.  So what is covered by copyright?  Essentially anything you produce that was uniquely created by you begins life with copyright protecting your ownership of that work.  That copyright covers things like reproduction, copy and even display.

How a Cover Song is Licensed

So in the case of our cover song example, a band is essentially reproducing and displaying someone else’s song.  As such someone needs to obtain permission from the copyright holder of the song in order to do so.  That permission in the case of the cover song is typically done via a large central clearinghouse and done by the venue. 

The clearinghouse acts as a representative for a large group of copyright holders and clears them in one go.  Much more efficient than going to each individual songwriter. Why the venue?  Well, in general, it is because they are displaying the work.  Also because with while a band may cover say 2 songs the venue will likely have many bands doing covers over a period of time.  Thus it is more efficient for the clearinghouse to do business on a venue basis than a band basis.  But I digress.

Blogging and Protecting Your Copyright

Why do I bring this up and what does it have to do with you?  Well, I realize a large portion of my readership is other bloggers.   This is an industry where copyright protection matters more than most.  On the one hand as a content creator, you want to protect the copyright for your content.  Every so often I hear stories of how whole sites of content are stolen and reproduced somewhere.  You as a creator absolutely have a right to put a stop to that.

Not Running Afoul of Someone else’s Copyright

But the need for this knowledge goes deeper.  Not a day goes by that I don’t visit some bloggers website and see some obviously copyrighted picture.  You know the type, some gif of some mainstream tv character or situation.     It may seem innocent enough.  After all the makers of your favorite tv show are probably not perusing some hick blog looking to squash usage of their material.  

You are probably right, the odds of some big media outlet finding out are low.  But if they did it can be very costly.  Basically, the penalty for being caught committing copyright infringement is a civil payout equal to the damage assigned to their owner by your actions.  That number can be in the thousands.  Always obtain permission before using someone else work.

Exceptions and the Public Domain

There are of course exceptions to what you need to obtain permission.  The big one is what is called Public domain.   Basically, a copyright holder can declare the copyright null and void or it can expire.    In either case, anyone can then use the item without requesting ownership.  However, no one can claim ownership from then on.

Are Free Picture Sources Really Providing Public Domain Pictures?

Honestly many of the blog pictures you see out there come from public domain sources.    There are plenty of websites that focus on hosting public domain pictures.  There is only one problem, you are taking the word of your source website that the picture is actually public domain.  You do not know if the picture was actually uploaded by the original author.  This can and does bite bloggers from time to time.  You should always be careful if you are obtaining blog material from these sources.  You don’t want to be held responsible because someone else incorrectly identified a picture as public domain.

Fair Use Doctrine and Copyright Law

The second exception for copyright law is called the fair use doctrine.  In essence, you can reference and use a portion of copyright material without permission if it fits a four-factor test.  That is:

1) The purpose of the use is to advance and add something new.  How much the work is transformed matters a lot here.   One might be able to argue some Memes would be permissible under this factor for example, but author beware.

2) The nature of a copyright work cannot be of facts and ideas.  So, for example, I can share with you an idea from a book and it will never be copyright infringement.  I cannot, however, post whole portions of said book on this site without first getting permission.

3) Which brings us to the third point.   The smaller the portion of the original work used the more likely it will be fair usage.    Though note some areas of the work may be considered more key to the work than others, providing larger weighting.  So a one-sentence quote from a book might be fine, but a page probably is not.

4) And finally the effect of the copying the work should not affect the income of the copyright holder.

Obviously, the fair use doctrine has a lot of gray area, so you should err on the side of caution.  I wouldn’t hesitate to refer to an idea or use a sentence quotation with a citation.  Copying a page out of a book or a picture from a magazine not so much.

Liability Insurance and Copyright Infringement

A note before I proceed, if you are operating a blog as a business it is important to understand if you are insured for copyright infringement.  Umbrella insurance and the like only cover non-business related action.  So if you have a business blogging you will need the requisite business general liability insurance, especially if you are using any material you have not personally produced.  While Full Time Finance has all the requisite insurance, you will note every picture and article on this site is the sole production of myself.  Since I use no stock photos I have minimal risk in this area.

Note I said minimal but not zero.  The reality is taking a picture of someone else’s copyright material can also be considered infringement.  Say I had a picture with a companies logo or a picture someone made in the background.  That could still be considered infringement.  I go out of my way to avoid any artwork in my photos or pictures of other people for that matter.      Still, there is always a possibility with a picture a week I could screw up.    That is why you should always have some sort of copyright infringement coverage.

Protecting One’s Own Copyrighted Material: DMCA Notice

Let’s turn an eye from not infringing back to protecting our own copyright for one more moment.  So what happens if someone steals your copyrighted material?  Well, enforcement and protection of your material lie first and foremost with you.    In general, your best recourse is probably the Digital Millennium Copyright Act (DMCA) for digital infringement (so say another blog or site copying your stuff).  Basically, you can send a DMCA notice to the online platform hosting the person’s website.    This form obligates the web host to legally take down the copyrighted material.  Note this form goes to the host company, not the person posting your stuff.    In most cases, this will be sufficient to shut down the offender and protect your copyright.

Suing for Copyright Infringement

If the DMCA notice is not successful or items are non-digital infringement things get more difficult.  Frankly, you cannot sue for copyright infringement without first registering the copyright with the US copyright office. This would require a filing fee and likely a lawyer.  This would be a last resort, but note you can do this at the time a real issue occurs should it ever.  Note while you can register an entire website it only covers copyrighting of items published through the dates of registration, so this is more a reactive than pro-active step.

Anyway, time for the standard boilerplate. I am neither a lawyer or a practitioner of law in any form.  This post does not constitute legal advice in any way.  When faced with a true issue with infringement it would be best to consult a lawyer before sending any notices or otherwise acting.  The information here is a result of some investigation on my part to keep my own site in compliance with law and to protect our own copyrighted pictures.  That being said I hope to never need to utilize this knowledge.

Have any readers had to enforce their copyright?  Has anyone been accused of infringement?