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Protecting a Content-Based Business, Part I: 3 Prerequisites for Copyright Protection

protecting a content based business part 1 prerequisites for copyright protection

You really should know the prerequisites for copyright protection in the US.

But first, let’s talk about protecting content. A lot of content, like online videos, long form blog posts, micro-blogging, podcast episodes, or some combination of those things. This is a three part series that’s going to break down:

  • The three things you need in order to qualify for copyright protection, (which you’ll find here, in part one)
  • How to make sure you own your creative content (part two); and
  • A list of content that’s eligible for copyright protection, some of which you might not have thought of yourself (part three).

But this is part one, the three prerequisites for copyright protection.

Prerequisite for Copyright Protection, #1: If you want to protect content, it’s gotta be creative.

This doesn’t just mean that it needs to be a work of art, a musical composition, a video, or something that you traditionally think of as creative. It means that your content can’t just be a fact, a mere list of ingredients, a mere idea. It has to be creative. The content should be something that’s the product of “the sweat of your brow.” You’ve worked to create this thing somehow.

You might look at some creative works and think the bar to creativity might be pretty low. You’re right. There’s not a huge bar to creativity. But it does have to be creative.

A theory, a process, an idea: these things are not creative enough to satisfy this prerequisite for copyright protection in the US. But if you have a group of facts that you’ve creatively arranged, that creative arrangement is protectable.

If you’re protecting content via copyright, it has to be tangible.

Now that we’ve gotten the creativity part out of the way, thing two is that it has to be tangible. Not tangible in that you have to actually be able to grab it and touch it. Tangible in that it lives outside of your head. It is either on paper, it is recorded, it is somehow accessible by someone else.

You’ve gotta own it.

The third thing is that it is actually original to you. Now, it can be something that you’ve collaborated with someone else on. Maybe you paid a contractor to contribute creative work. (And, hopefully, they signed a contract.) Or, you have collaborated with someone else and you both own it. Either way, it has to be an original creative work. I will talk a little bit more about originality in part two, but it should be original — as in original to you or owned by you.

So those are the three things: creative, tangible, original. Hope this helps you understand the three prerequisites for copyright protection, and I will see you in the next part of this series.

Protecting Yourself When Using Guest Bloggers

women who have protected themselves when using guest bloggers and contributors

By the end of this post, you’re going to understand who owns the IP when you use guest bloggers and how to change that. You’ll also learn about some alternatives to asking for IP ownership when working with guest bloggers and contributors. So here we go.

Who owns the IP when you’re working with a guest blogger?

Let’s say a guest blogger writes a really great post, or even a guest vlogger on your video show creates really great content that you publish under your brand. Who owns that content?

Well, by default, the guest blogger owns that content. Unless you have something in writing, that’s signed, of course, the author of that creative work, that post, owns that content.

Now, if you wanted to change that, you could enter into what’s called a Work-for-Hire/ IP Rights Agreement. Essentially, that type of agreement says, I, content creator, grant all of the rights to this post, this work product, to you, blog owner.

Alternatives to asking for total copyright ownership

First Publication Parameters and Exclusivity

Now depending on the platform, depending on the guest blogger, they may not want to give up all rights to their blog post. So there are some alternatives that you can consider depending on your relationship.

The first is first publication rights. Essentially, if you don’t ask for IP ownership, it’s reasonable to ask for first publication. This means you are the one that gets to be the first to publish this post or this video. And it’s reasonable to ask for a certain period of exclusivity. Think of exclusivity as a certain amount of time where you are the only one that publishes this content on the internet and the guest blogger has to wait a certain amount of time before they can republish it elsewhere like medium or their own blog or platform.

Attribution (You know. Credit.)

Second, let’s say this is stellar, stellar content. And for that stellar content, you, the blog owner, have provided this great platform and this great audience that has caused this post or this video to go viral. You as the blog or platform owner may not ask for ownership. But, to the extent that this one post turns into something more — maybe it becomes the catalyst for an e-course or maybe it becomes part of a print publication like a coffee table book, or another type of written work. Well, you can require, as the blog owner, the platform owner, attribution, such as “this post originally appeared on such and such a blog at such and such a date, and is reprinted by permission” or simply stating it was originally published on your blog.

What happens if someone infringes on the contribution?

And then something else to consider when using guest bloggers or contributors is the question of what happens if that post that video that contribution is infringed? Well, this is why some kind of contributor agreement is a good idea, right? You want to make clear who owns the IP to that contribution. But you also want to be sure who has the right to enforce it. If there’s an infringer, without a written document, there might be a question of, okay, who gets to who sends the cease and desist letter, the blog owner, or the guest content provider? A good contribution agreement will speak to that.

I hope this gives you an idea of things to think through in terms of who owns the IP when using a guest blogger or guest contributor. You have some alternatives that you can ask for or discuss, like first publication, and also thinking about attribution and requiring credit if that content turns into something more. Then, of course, think about infringement and who has the right to enforce when someone has copied that guest contribution.

Why You Should Put a Copyright Notice on Your Blog or Website

By the end of this quick video you’re going to know why it’s important to put a copyright notice on your blog or website. You’ll also learn what a copyright notice means, when to use it, and what it prevents.

First, what goes in a copyright notice?

There are three elements to a proper notice.

1. The copyright symbol or the word “copyright”

2. The year of first publication of the copyrighted work

3. Is the name of the owner of the copyright.

You will see that on the bottom of websites, you will see it on the inside of albums, but for our purposes we’re talking about the bottom of websites and we’re talking about the show notes, maybe, for a podcast.

Q: When can you use the copyright symbol?

A: Any time.

You can use it once that copyrighted material escapes your brain and is “fixed in a tangible medium of expression…” That’s fancy lawyer speak for living outside of your head and written out on paper. It’s a protectable, copyrighted work long as it’s recorded or put somewhere that others can see and experience it. (Even if that “other” is just you.)

You don’t have to have your work registered with the Copyright Office in order to use that © symbol or the copyright notice.

Is putting a copyright notice on my website that important?

It used to be required in order to have copyright protection! Nowadays, that’s not the case. You still have protection regardless of whether you publish something with a proper notice.

HOWEVER, if you don’t have a copyright notice, then an infringer could claim “innocent infringement.”

That comes into play and is a big deal because you’ve heard me talk about statutory damages as a benefit of copyright registration, right? Those big money damages, and the right to get your attorneys’ fees, those are reserved only for works that are registered with the Copyright Office.

If someone can claim innocent infringement, then their monetary liability — the amount of money they’re required to pay you for infringement — is knocked down drastically.

So, we want to avoid anyone claiming innocent infringement. Use that copyright notice, it’s not hard.

Remember: copyright symbol, year of publication, owner.

And remember that you don’t have to have a registration in order to use that notice.

So I hope that helps you understand when, where, and why to use a copyright notice on your blog or website.

Is a Blog Post Automatically Protected from Copycats?

is your blog post automatically protected from copycats

By the end of this post you will know at what point your blog post is automatically protected from copycats under copyright law. Let’s go!

First, what’s protectable about a blog post or vlog?

So first, what does a blog or vlog consists of? Well, it consists of maybe video content, audio-visual content, you’ve got text, maybe some graphic designs, all of those things are protectable under US copyright law.

They’re creative works and under US copyright law something is protected the minute it is “fixed in a tangible medium of expression.” That is fancy lawyer talk for no longer just living in your brain, no longer living as an idea. It is fleshed out, it’s written out, it’s recorded somewhere.

When is a blog post automatically protected?

So is a blog post automatically protected?

Yep! Even before you hit publish, you own the copyright to what you’ve created there.

Copyright protection and copyright registration are two different things.

A lot of people confuse copyright protection with copyright registration. When you publish or write out that blog post, it automatically has protection. But, it is not automatically registered. You don’t HAVE to register your blog post or vlog in order to have copyright protection. Registration is not a prerequisite to copyright protection.

However I DO recommend that you check out my post on three big reasons why to register your website with the Copyright Office. There are some good reasons to register your stuff with  the Copyright Office, and I’ll give you a couple little hints. It has to do with boosts in protection and a little cash money in your pocket.

So I hope that this helps you to better understand when a blog is automatically protected from copycats under US copyright law.

You Think These Aren’t Photo Copyright Infringement (But They Are)

girl contemplating whether posting this photo could be photo copyright infringement

Here’s some activities that you think aren’t photo copyright infringement… but they are. These’ll be in the context of social media, websites, and podcasting.

Rapid fire, let’s go!

Photo Copyright Infringement 101: posting a photo that you didn’t take.

Unless you have agreed with the person that DID take the photo that you could, of course. But, in general, posting a photo that you didn’t take without permission from the owner…big no-no. Copyright infringement.

Posting a photo of yourSELF that you didn’t take.

Some people are surprised by this; but, if you and the photographer don’t have an agreement where you can post those photos, you can’t post those photos.

The next part of that is posting a photo of yourself that was taken at a live event. 

Again, did the photographer or the copyright owner say that you could post that photo.

Even if you’re in it, you don’t OWN it. 

Posting photo with the disclaimer “I do not claim any rights to this content.” 

Disclaimer is nice, it doesn’t do anything. So, if you’re posting that content without the permission of the owner? Copyright infringement. Disclaimer or no disclaimer.

Posting a photo of a celebrity rep’ing or wearing your brand.

Again, you’ll see a theme here, but if you don’t own that photograph, you can’t post that photograph.

And, a little tidbit about celebrities or really anyone wearing or rep’ing your brand, there’s something called “right of publicity” where an individual has the right to control how their name, image, and likeness is used in connection with a commercial purpose, a business purpose.

So, aside from just the copyright, there’s that right of publicity aspect. Did the individual in the picture consent to  your using their image in connection with your business?

Posting a podcast guest’s photo or headshot to your website or the show notes…might be photo copyright infringement. Maybe.

This is a reason why it’s a good idea to have a podcast guest contract.

In general, the chain of title or chain of access to that photo is photographer –> your guest on your podcast –> you. So, do you know that the photographer gave the guest all of the rights that THEY need to provide that photo to YOU, for YOU to put that photo online? If the photographer didn’t grant those rights to your guest, your guest is infringing by providing you that photo. And, you’re infringing by posting that photo online. (A good podcast guest contract makes the guest promise he/she has all necessary rights to provide you with content like that, FYI.)

Using something beyond the license or permission that was originally granted.

That might sound a little confusing — let me give you an example.

So, best example is a stock photography website, right? They could have tons of photos that you can use for free… “for free”…but, there’s that fine print, right? If you’re using it in connection with a commercial purpose, then you might have to buy a special license to use it in connection with a commercial purpose.

Using that photo in connection with a commercial purpose without paying that license fee is copyright infringement.

Essentially, the license that they granted to you to use the photo for free only extends to personal use not business use, right? So using it in a business sense without paying the extra license fee or “beyond the scope” of the original license: copyright infringement.

I hope you better understand these examples of what constitutes photo copyright infringement so that you can avoid them!

What a [good] Lawyer Does When You’ve Been Copied

woman looking up what to do when you've been copied

In this post you’ll learn, in my opinion, what a good lawyer does when that dreaded moment hits: you’ve been copied. Spoiler alert: a good lawyer will just walk you through your options. And those options are:

  • contacting the infringer,,
  • DMCA takedown,
  • sending a letter,
  • filing a lawsuit, and
  • doing nothing.

Option When You’ve Been Copied: Contact the Infringer Yourself

People know and understand so little about copyright law and what they can and can’t do. (It’s sometimes surprising.) So it’s very possible that, even when you’ve been copied, whatever the infringer has done was an honest mistake.

Depending on the severity of what’s going on, your lawyer might tell you to contact them yourself. The message will consist of something like “Here’s what I own, here’s what you’re doing, take it down.” Something like that.

Next Option: DMCA Takedown

The next option of course is what’s called a DMCA takedown. You’ll see this at the bottom of tons of websites like Facebook, YouTube, Etsy — any platform where users can upload content. Those types of sites usually have some kind of IP policy, copyright policy, or DMCA policy. There, you can submit a takedown request. It’s protection for the website owners so that they don’t get sued for copyright infringement because of what somebody else did or what somebody else uploaded.

The takedown process is as simple as filling out that form and saying what happened, what you own, and what needs to be taken down.

A Stronger Option: Cease-and-Desist Letter

Nothing says “stop it right now” like receiving a strongly-worded letter from an attorney.

Now, not every letter has to be a FIRE AND BRIMSTONE and WE’RE GONNA SUE THE CRAP OUT OF YOU, mean, YOU’RE INFRINGING-letter. There’s mean, and there’s effective. (Side bar: Given the option, I’ll go with effective.)

A good attorney will walk you through it. “Okay, tell me about what’s happened, do you know about this company or person, what are the circumstances.” It’s often more than just “okay let’s send a letter right away.” A good attorney walks you through what’s going on and the tone that the letter should have in order to get whatever your ultimate goal is. If your ultimate goal is for the infringer to take down whatever it is, then the attorney will walk you through how to best achieve that ultimate goal.

Another Option: Filing a Lawsuit

Filing a lawsuit is always an option. Again, a good attorney will talk you through what’s going on and what the best step forward is. Oftentimes a lawsuit is not the first step forward, but sometimes it is, so that’s definitely something to talk through.

And then…. there’s do nothing.

Ultimately, it’s your decision whether you want to spend time and agony and expense to go after this infringer. Again, it depends on what’s going on. What have they infringed? If it’s something that’s really valuable to you and that’s at the core of what you create, it might be worth doing something.

But sometimes, in certain specific circumstances, a client will elect not to do anything.

So again, an attorney should walk you through all of these options. She should discuss which of these is the best plan of action for you.

I hope that helps you understand what a good attorney will do when you’ve been copied.

3 Benefits of Registering A Website with the Copyright Office

woman contemplating whether to register a website with the copyright office

Pretty self-explanatory by the title: you’re going to get the top three benefits of registering your website with the Copyright Office. Let’s go!

If you’d rather watch/listen instead of read, click here!

Benefit of Registering A Website with the Copyright Office #1: Presumptions. 

Now, before your eyes glaze over, let me give you a little explanation of what a presumption is.

Think of a presumption as an assumption. So, what things would you prefer to be assumed in a copyright infringement lawsuit?

Well, if you register the website with the Copyright Office, the presumption is that you are the owner, and that everything in that registration is valid. So, let me put it a little bit differently.

You don’t want to have to prove that you’re the owner, and you don’t want to have to prove that everything about the copyright registration is valid, right? That the information in that application is valid.

Instead of you having to prove that you own it, the other side will have to prove that you DON’T own it. Got it?

So it helps to have those presumptions in your favor.

Benefit #2: Potential to recover statutory damages.

Statutory damages are something in the U.S. Copyright Act that say you get between $750 and $30,000 per infringed work.

So if your website’s infringed, and this goes to court, you are automatically entitled to damages inbetween that range.

Yes, it’s a big range, and it can depend on the judge you get, but if you can prove WILLFUL infringement, that number bumps up to $150,000.

You might be thinking “$750 on the low end doesn’t sound like much.” Well if you don’t have your work registered with the Copyright Office on time, then you are limited to what’s called “actual damages,” and that’s usually the other side’s profits. Well, they might not have any profits to show from the infringement. So then you really aren’t entitled to much.

So between $750 and $30,000 sounds pretty good.

Benefit #3: Potential to recover your attorneys’ fees if it goes to court.

Let’s say you don’t ever want to go to court. Ok, you start with a cease-and-desist letter.

Well, if you’re on the receiving end of a cease-and-desist letter, and you know that if this does go to court you’re going to have to pay the other side’s attorneys fees, you’re going to want to settle real quick, right?

By having in your letter that you own a registered copyright, that adds a little extra boost to your letter, right? Because they don’t want to be on the hook for your attorneys’ fees, so they don’t want to go to litigation because that’s a lot of attorney time. They’re more likely to say “let’s just settle this now so we don’t have to pay attorneys’ fees.”

So there you go. You’ve got your presumptions, you’ve got your statutory damages, and you’ve got attorneys’ fees.

Three good reasons to register your website with the Copyright Office.

Enjoy those three little remedies. And I hope this helped you to understand the three major benefits of registering a website with the Copyright Office. 

Inspired Versus Infringing: A Look at “Idea Law”

woman looking at artwork wondering where the line is between inspiration versus infringement

There’s always that question about the fine line between being inspired by something and infringing. This post gives you a quick reminder on what copyright infringement is and a brief little explanation on what’s protectable under copyright law and what’s not. By the end, you’ll have a good understanding of “idea law” and how that relates to that line between inspired versus infringing.

A quick reminder on what copyright is

So first you’ve heard me talk about how copyright is a bundle of rights, right? It’s your… copyright owner has the exclusive right to copy, sell, display, publish, all of these things, and each one of those things is like a twig in the bundle of rights of copyright. 

A quick reminder on what copyright infringement is

Infringement is taking one of those things and doing it without the permission of the copyright owner. Notice I did not say “…and make money” or “…and make a profit.” It is simply doing one of those things that constitutes copyright infringement.

What’s NOT protectable under copyright law? Ideas.

These ideas are great and valuable… once you flesh them out. Once you actually create these things and the details around them, they cross the line from idea into IP. But in their form as an idea, they’re not quite protectable yet.

It helps to think about more traditional creative works when trying to explain this concept. Here are a few examples.

The TV show example

Think about a TV show. I have an idea for a TV show about doctors, and we’ll focus on the drama between the doctors at the hospital and we’ll throw in some crazy injuries or illnesses in the patients and weave that into the story. What TV show am I talking about? Who the heck knows! There are a hundred TV shows about doctors, right? Grey’s Anatomy, ER, there are more that I probably don’t even know about. So that pure idea is not original, it’s not unique.

Now what is protectable? Well in those shows that I mentioned: the script, the actual audio-visual works, the trademark… Those things that have been fleshed out and expanded upon make those TV shows unique.

The work-of-art example

Another way to think about it is an idea for a painting. So, if you tell two artists to paint a picture of a girl eating an ice cream cone those artists could create two completely different looking pieces, right? Because two artist can have the same general idea and then express it very differently. That’s probably the perfect example of how an idea is an idea alone, but the expression of the idea – the resulting artwork — is what’s protectable.

The Amy Porterfield vs. Jenna Kutcher example

Did you know that both Amy Porterfield and Jenna Kutcher have online courses on building your email list? Yup. Same general idea, different (protectable) execution. What’s the general idea? A digital course on building your email list. What’s the protectable, unique expression? The branding. The different worksheets. Definitely different video content. They each have their own take and own unique spin on the subject.

Determining when something is inspired by versus infringing

So think about this: Am I “INSPIRED BY” someone else’s idea, or am I COPYING their unique expression?

When you find that you’re inspired by someone else’s work, ask yourself: is it the general idea that you’re wanting to make your own, or would you be infringing that person’s unique expression of that idea?

Remember that unique original expression, not the idea itself, is what’s protectable under US copyright law. 

Does Copyright Law Apply to My Business?

does copyright law apply to my business spear ip maria ollis

You’re vaguely familiar with the concept of copyright law. It’s for fine artists — musicians, painters, filmmakers — right? Yes, but copyright law can apply to so much more. This post is a quick review of what copyright law protects and some of the non-traditional content that might fall under the umbrella of copyright protection.

Continue reading “Does Copyright Law Apply to My Business?”

The Difference Between a Work for Hire and an Assignment

difference between a work for hire and an assignment spear IP maria ollis attorney

What’s the difference between a work for hire and an assignment, and why is it important? It comes up in the context of copyright protection. If something was created as a true work for hire, it matters. Things like the length of copyright protection and — gasp — termination can come into play if you’re using the wrong term.

Continue reading “The Difference Between a Work for Hire and an Assignment”

You Can’t Protect a T-shirt Idea (But You Can Start a Lifestyle Brand)

protect a t-shirt idea lifestyle brands spear ip

“I have a REALLY great t-shirt idea.” “I’ve got an idea for a funny t-shirt slogan.” Many an IP attorney has heard this phrase at least once. Just like protecting an idea can be difficult, it’s challenging to protect a t-shirt idea. But a lifestyle brand? Now you’re talking. But be proactive: know how to safeguard the protectable elements of a t-shirt or lifestyle brand.

Continue reading “You Can’t Protect a T-shirt Idea (But You Can Start a Lifestyle Brand)”