Register, Rinse and Repeat: Protecting Your Creative Works Online

Note from Mack: This is a guest post from Kerry Gorgone, who is the special co-host of #Blogchat this Sunday!  Besides being a prolific blogger and podcaster, Kerry is also a lawyer, so she’s perfectly suited to help us understand the legal aspects of blogging.  Her topic will be How Bloggers Can Protect Themselves, discussing disclosure rules, as well as protecting your creative works, which she talks about here.  Please follow her on Twitter and join us on Twitter at 8pm Central on Sunday with the #Blogchat hashtag!

“Only one thing is impossible for God: To find any sense in any copyright law on the planet.” ~ Mark Twain

Creating something worthwhile is never easy. The process of writing a blog post, painting a portrait, or recording a song is time consuming and, at times, physically and emotionally demanding. But once your masterpiece is completed, your work, in some ways, has only just started, because protecting your copyright is a never-ending job.

First, some good news: you own copyright in your creative work as soon as you “fix it in a tangible medium.” Essentially, as soon as it’s out of your imagination and down on paper, you own it. This holds true also for blog posts and other digital media, once created.

Copyright doesn’t last forever, but it lasts for a long time. If the work is your own, individual piece, copyright lasts for your life, plus 70 years. For joint works involving more than one artist, copyright lasts for the life of the last surviving author, plus 70 years.

If you create a “work for hire,” meaning there was a written agreement signed before you started the work indicating that the company commissioning the work would own it, then copyright lasts for 95 years after publication or 120 years after the date of creation, whichever is shorter. Note that, in this instance, the person or company who hired you owns the work, not you.

A few key points:

• Use the copyright notice on all your work.
  • Ex: Copyright Mack Collier 2014; or
  • Copr. Mack Collier 2014; or
  • © Mack Collier 2014
  • Register your work with the United States Copyright Office

You can’t sue for infringement until your work is registered, which limits your options. You at least want to be able to invoke the possibility of a lawsuit in order to motivate the infringing party to stop using your work without permission. It costs $35 to register your work online, so it’s well worth the money and effort. If you have a large number of blog posts, consider registering them together as a compilation: one registration, one fee.

If you can, register the work within 3 months of publication, so you can seek statutory damages and attorneys’ fees. This is critical, because it’s sometimes difficult for bloggers and artists to prove actual damages, or specifically how much money they lost as a result of the infringement.

Even if you miss the three-month mark, register, because if you register within 5 years of publication, it’s prima facie evidence that your copyright is valid. This means that the defendant will have to prove otherwise in your lawsuit. Think of it this way: the less proof you have to produce, the less money the litigation costs you.

If you want to permit some uses of your work, consider releasing it pursuant to a Creative Commons license. These licenses allow people (or companies) to use your work, so long as certain conditions are met.

Creative Commons licenses range from attribution only (credit), to more restrictive, such as licenses allow use, but disallow any changes to the work. You also have the choice of using a Creative Commons license that forbids commercial use, if you don’t want other people profiting from your blog posts or pictures.

Here’s what to do in the event someone uses your content without permission (e.g. scrapes your blog, makes t-shirts out of your photograph, or uses your song as their podcast bumper).

1. Contact the person using your work directly, and ask them either to attribute it properly or stop using it (at your election).
2. If they fail to respond, you can send a more formal cease and desist letter. There’s no formula for this, but you can see an example here.

• You really should have a copyright lawyer review this (if not draft it for you), because what you say in the letter can be used as evidence should the case go to trial.

1. Issue a takedown notice pursuant to the Digital Millennium Copyright Act (“DCMA”). You can send this directly to social networks and sites like Twitter, YouTube, Vimeo, or Pinterest) or to the ISP hosting the infringer’s website where the content is posted.You can find information and resources relating to issuing a takedown notice here: https://copyrightalliance.org/2012/03/in-plain-english-a-quick-guide-to-dmca-takedown-notices#.UnFnRpRATn4

   One thing to note is that if the other party contests your takedown notice, your only remaining option may be to bring a lawsuit.

2. File a complaint with Google and request that they remove the infringing party’s site from search results
3. File a copyright infringement lawsuit (very expensive)

Those are your options, from most palatable to least. You might well elect not to pursue infringers in some instances, especially if they’re clearly outside the jurisdiction of a domestic court, or if they are unlikely to have any money to pay a judgment.

Your best course of action is to monitor for infringing uses of your work, proactively use the copyright notice, register your creative works, and watermark images that you create for use with your blog posts.

Addressing infringement is never fun, but take some solace in the fact that your work is good enough for someone to want to steal. (I’m a glass half-full kind of girl.)

Pic via Flickr user Brenda Starr