Blogs obtain copyright protection from the moment they are published on the web. Therefore, bloggers as a rule should have a basic understanding of how copyright law applies to their blogs, and the content of others that they may reference in their blogs. This post provides a very high-level summary of some key points of U.S. copyright law that bloggers should be aware of—note that laws will vary in other jurisdictions, and as always, this post does not constitute legal advice. You should consult a copyright lawyer if you need specific advice.
KILLING THE MYTHS #1 — If it's older than 50 years it's in the public domain.
First things first, there is no provision in the Copyright Act which states that anything older than 50 years is in the public domain. Yet I usually hear this urban legend at least 2-3 times per month. In fact, determining whether an older work is still protected by copyright can often be quite complex due to the myriad of changes in U.S. copyright law since the early 20th Century, and requires an evaluation of a whole host of factors, including whether the work was created by an individual or a company, the year it was published, whether the copyright registration was renewed and when, just to name a few. The safe bet is to just assume that the work is copyrighted and go from there.
KILLING THE MYTHS #2 — If it is on the internet, I can do what I want with it.
Websites, photos on the internet, blog posts, tweets are all protected by copyright. Let me repeat that again—if it is text, photos, graphics, images and it's on the internet, unless it states otherwise, it is protected by copyright. Let me state that yet another way—just because it is on the internet does not mean that you can copy, duplicate, repost, and use it in any way you want. Copyright protects works of authorship fixed in a tangible medium. A blog post is a work of authorship. Text on a web page is a work of authorship. A photograph is a work of authorship. And a hard drive is a tangible medium, so content on the web is protected by copyright.
KILLING THE MYTHS #3 — Since I'm not yet making money off my blog, anything I copy is "fair use."
Fair use analysis is about as complex as determining whether an older work is protected by copyright (see Myth #1 above). There are hundreds of cases that analyze and apply the fair use factors, including an analysis of the purpose and character of the use (is it commercial or for non-profit educational purposes), the nature of the copyrighted work, the amount and substantiality of the portion of the work used in relation to the whole, and the effect of the use on the potential market and value of the work. See 17 USC 107
. In other words, it's quite complex and highly fact specific. This is one area where it is never safe to make assumptions, and if you want to be more confident that your use is fair, consult with an experienced copyright attorney.
KILLING THE MYTHS #4 — If it doesn't have the (c) legend, it's not protected by copyright.
First, see Myth #2 above. Next, copyright law as of 1977 does not require the (c) legend for a work to be protected by copyright—a work is AUTOMATICALLY protected once it's fixed in a tangible medium, (c) or not. However, if you want to go after someone who may be infringing, you need to provide constructive notice, and the (c) with the year of publication and owner information (i.e. (c) 2009 — Whyte Hirschboeck Dudek S.C., Milwaukee, WI) provides that notice. See 17 USC 401(b)
for the notice provisions under the Copyright Act.
As always, seek legal advice from an attorney that specializes in copyright law if you are concerned about properly protecting your own work, or not infringing on others. Blog safe out there.