Grrr . . . It seems like every time I call the Copyright Office with a question about blog copyrights, I have to change my stance on how and whether anyone should register their blog’s content. Mind you, when I wrote the Legal Side of Blogging last year, my research and ideas were approved by my cyberspace law professor and another internet/copyright attorney. We all got it wrong.
I used to think that bloggers should register their new content every three months because the Copyright Act says you’re eligible for statutory damages in a copyright infringement lawsuit if you register your work within three months of publication or one month of learning of the infringement – whichever is first. In a previous call to the Copyright Office, the representative said it was permissible to register all your content as one work and that subsequent registrations would be derivative works of the prior ones.
A few months ago I was informed that content that is only available online (including blog posts) doesn’t count as “publications,” so that rule about registering within three months of publication doesn’t apply. For unpublished content, you have to register you work prior to the infringement occurring to be eligible for statutory damages. If you wait until after your work has been stolen to register you work you can only collect actual damages, which will be low unless you or the person who stole your work has a financially successful site.
I called the Copyright Office yesterday and was told that you can’t register posts that are released on different days as one work (though my experience is proof that you can) and you can’t register the same post as an individual work and as part of a larger work, (though I think there’s some wiggle room here).
So here’s my new stance – registering your blog content is not worth it for most people. The exception to this rule is you might want to register your work if you think it will be stolen by someone who can afford to pay potentially hundreds of thousands of dollars in damages and attorneys’ fees. If you’re in this boat, or think you might be, you should submit your application to the Copyright Office before you release the post on your site to ensure that your application will be in before any infringement can occur.
This is more proof of how behind the times the law is and that you can’t apply logic to copyright on the internet. I think it’s moronic that online content isn’t “published” when it’s released on the internet. I think this definition will change in the near future with so many publications switching from paper to being online only. As the law is written and applied the law seems unfair because it makes it harder for online writers to protect themselves.
There is a special copyright registration for “serial works” but so far the Copyright Office says blogs, including those that are released on a strict schedule like other serial publications, do not qualify. I think this is wrong and needs to be challenged.
For now, I’ve added a disclaimer to my ebook on Amazon that states that the copyright registration chapter is inaccurate and will be updated this summer. I hope to add the revised chapter to the book in the next month once it gets through legal review and editing.
11 responses to “New Stance on Blog Copyright Registration”
I could have told you that:
http://www.copyright.gov/circs/circ01.pdf#page=4
“The reports also state that it is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work”
Using the 1978 legislative history, congress wanted publication to apply to physical distribution.
But on another point, I wonder if blogging is suitable for publication at all. I would suggest that blogging is not ‘fixed’ enough to provide a verifiable frame of reference for future legal action. My argument goes like this:
1) There is no standardization of what “blogging” is. It can mean using a hosted blog like WordPress.com or Blogger or Tumblr. Or it could mean hosting your own blog on a personal website.
2) Self-hosted blogs are subject to revision without oversight. Meaning I could edit a blog post and change the software of my website to hide the fact that I made a change. I could then take someone else’s work and claim that they infringed my prior work. Without extensive forensic discovery, my claim may appear to be valid. This is why I don’t think websites are considered publication in general.
I think you are right that copyright law needs updating. But I don’t think that making blogs ‘publications’ is necessarily the way to go. I think that it might lead to greater confusion in an already messy area.
You bring up a good point that there will likely be debates about whether online material counts as a publication because it can be easily modified. I think there’s a good argument that content that is not expected to change ever or often, like a website’s static content, articles, or blog posts, should be treated as “published” once they are released. If their paper equivalent might be a newspaper or magazine article or column, the online equivalents should be treated the same way under the revised law.
What is the minimum bar for “publication”? Can it be done cheaply?
Publication requires “the distribution of
copies or phonorecords of a work to the public by sale or other transfer
ownership, or by rental, lease, or lending” or the offer to distribute copies “for the purpose of
further distribution, public performance, or public display.” In the online world, I think it’s hard to get a publication with these restrictions unless you’re selling your work as an ebook or something along those lines.
Right, but the copyright office interprets the law as “capable of being transmitted by hand-to-hand distribution”.
I think that definition has drastic implications for online media.
I agree. I think this is also part of the law that will have to be changed when they revise the Copyright Act.
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[…] DISCLAIMER: Recent conversations with the Copyright Office have led me to change my stance regarding blogs and copyright registration. Please see this post for my updated views. […]
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Dear Ruth:
Your information about eligibility for statutory damages in incorrect. You are conflating the remedies (1 month after learning) for “PRE-REGISTERED” works, with the remedies for UNREGISTERED works. For statutory damages you have to register w/in 3 mo of publication OR prior to infringement.
The ‘w/in 1 month of notice’ only applied to pre-registered works.
Thanks for adding in this tidbit. This is why it’s so important for copyright owners to contact their lawyers before their work is infringed to understand what options for recourse might be available for them.