Oooooooh baby put on your big girl pants because we’ve got a doozy for you today! We have a new resident smarty around these parts and she is dropping knowledge bombs on you today like it’s nobody’s business. I had the pleasure to chat a bit recently with Maria Spear of Spear Intellectual Property Law, and we got to talking about how difficult it can be as an online creative to protect your ideas. She had the brilliant idea of breaking down the mysterious concept of copyright law as it applies to bloggers and other creatives and share it here in our Blogging series! You’re definitely going to want to grab a cup of coffee and get comfy (and bookmark this one for sure!).
Hello lovelies! I’m thrilled to be a part of the Lovely Indeed “Blogging” series and to shed some light on intellectual property (today, copyright) and some of the other legal issues facing many bloggers, makers, and other online businesses. I hope this will educate you in terms of how U.S. copyright law might apply to you and your business and will leave you inspired to go out and be even more creative than I know you already are.
De-Mystifying Copyright Law
Copyright law applies to “original works of authorship” and protects your creative works, specifically, this mouthful:
• literary works,
• musical works,
• dramatic works,
• pictorial, graphic, and sculptural works,
• motion pictures and other audiovisual works,
• sound recordings,
• architectural works, and
• compilations and collective works.
It also protects what are called “derivative works,” which sounds super technical, but derivative works are really what they sound like — works based upon (or “derived” from) other works. Classic examples of derivative works would be a film based on a novel, or a cover of a preexisting song. But even these protectable elements are not protectable until they physically exist. Put differently, an author or creator has protection in her creative work the moment it’s “fixed” in some kind of tangible form (that is, written down, recorded, painted, sculpted, etc.). This means that you don’t necessarily have to register something with the Copyright Office in order to have copyright protection (though it’s often a good idea).
What does the Copyright Act not protect? Brand names and symbols (that’s trademark law territory), inventions (that’s patent law land), functional elements (often a hurdle to be dealt with in the fashion industry), and “ideas” or concepts in their purest form.
The Law of Ideas
There is a difference between a protectable expression of an idea and a mere idea. Why the distinction? Well, the whole purpose of copyright law is to promote the progress of science and the arts (says a really old document you may have heard of — the U.S. Constitution), and overly broad protection could be a barrier to the free flow of information (which was super important to our founding fathers). In fact, the Copyright Act itself states that “[i]n no case…[shall]…any idea, procedure, process, system, method of operation, concept, principle, or discovery” be protectable under the Act. On top of that, if there is only one way to express a particular idea, the idea and expression are said to merge, and that expression is not protectable under copyright law, either.
Most applicable to bloggers in general might be an idea for a project or recipe vs. the actual execution of that idea. Copyright protection for recipes, for example, is very limited. A pancake made out of certain ingredients, a chair made out of hay, a beautiful garland made out of furry pom poms…the raw concepts or “ideas” for these things are unlikely to be protectable under U.S. copyright law. If a recipe or other set of instructions is written in a specific or original and creative manner, however, that set of instructions may be copyrightable.
The Copyright Office website sums it up quite nicely:
Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.
Only original works of authorship are protected by copyright. “Original” means that an author produced a work by his or her own intellectual effort instead of copying it from an existing work.
I could go on about the legalities involved in determining why a recipe isn’t considered copyrightable in its raw form, but I don’t want you to go cross-eyed. Instruction and recipe protection all boils down (pun intended) to this: a recipe is a method or a process that you follow to in order to create a certain product (and, as you can see from the exclusions listed above, “procedures” “processes” and “methods of operation” are excluded from the definition of copyrightable works). A list of ingredients, without any type of creative literary expression, is just an idea, or a list of facts (those facts being the ingredients necessary to prepare a particular dish). Facts, ideas; those are excluded from copyrightable works as well. Recipes are comparable to DIY-projects and blogs that provide similar “instructions.”
“Creative literary expression” is the special sauce that differentiates a well-crafted blog from a potentially unprotectable cookbook or robotic, instructional text. And that detailed, creative expression is protectable. What does this mean for bloggers? It means that a blog’s original, written content — which often reflects the “voice” of the blogger — along with original graphics, videos, and/or photographs, are all likely protectable under U.S. copyright law.
The Law of Design
One of the big hurdles to claiming copyright protection in a design (as is often the case with jewelry and apparel) is that a work of art cannot be “functional” in order to qualify for copyright protection. For example, a belt buckle’s function is to keep your pants or skirt up; clothing’s function is to keep you warm (or cool) and protect you from the elements; a pillowcase’s function is to protect your pillow from makeup when you’re too tired to wash your face before bed (kidding, but you get what I’m saying here). Because of these functions, it’s difficult to claim copyright protection in an article of clothing, piece of jewelry, piece of furniture, or other “useful article.” However, if the functional item you’ve created contains a design element that’s easy to separate from the functional part (like a photograph or original pattern reflected on a piece of clothing, a unique carving on the back of a chair, or an original print on a pillowcase), that separable design element is protected by copyright law.
So: Design of unique tote bag: not copyrightable. Unique print you created for the tote bag: probably copyrightable.
A Note on Design Patents
I feel obliged to say that you should not lose all hope when it comes to design protection. If you have a unique functional object in your product line, you have the option of pursuing a design patent. A typical design patent could cost anywhere from $1500-$3000 (or more, depending on the size and prestige of the law firm you hire) and could cost you some time, too, as the application could take a year or more to go through. It’s usually not a realistic option for those in the fashion industry (as styles and seasons change so quickly), and may be cost-prohibitive for an artist with many products in her line, but you should be aware of this option.
What To Do When You’re A Victim of Copying
So, let’s say you’re there. You’ve chocked your blog full of creative prose, images, video, graphics, and other original content. Your special status as “copyright owner” means that you are the sole owner of a “bundle of rights,” meaning that, unless there’s something to the contrary in writing somewhere, you are the only person that can authorize the copying, distribution, public performance, and display of your work, and the creation of derivative works based on your work. (You are also the only one that can register your work with the Copyright Office — something I’ll discuss in more detail in the next post.) Copyright infringement is when someone takes your copyrighted work and reproduces, displays, sells, or otherwise exploits it without your permission. That said, what do you do when someone copies you without your permission? Maybe someone copies one of your blog posts and publishes it to her site as her own. (You might have heard this referred to as “content scraping.”) Or perhaps she’s created an unauthorized derivative work based on your content. (I’ve seen an instance where a company’s web developer created a site for that company using all of the website text from a competitor — word for word. Yeah, you probably shouldn’t do that.)*
First, remember that many bloggers and small-business folks are not aware of the ins and outs of copyright law (or plain ol’ Internet etiquette) — not necessarily a defense that a judge would buy in court, but it is important to remember when dealing with a copycat (though there are certainly people and companies out there that knowingly and intentionally use others’ content without their permission). Depending on the “size” of the copycat, it might be worth contacting her directly to notify her that she’s copied and simply requesting that she remove the offending material. If that route is unsuccessful (or you don’t want to make contact yourself), it might be time to hire a lawyer. A good lawyer should 1) be able to tell you whether you have a valid claim, and 2) discuss your main objective and create a strategy around that objective. Your objective could be reimbursement for the theft of your intellectual property or removal of the content. Maybe one is more important to you than the other (or maybe you want both). A lawyer will often send a strongly-worded letter, outlining the applicable laws and the way(s) in which the copycat has violated those laws, prior to filing a lawsuit to see if the issue can be resolved without going to court. Lawsuits can be very, very expensive, so you’ll want to discuss your best course of action with your attorney before filing if you think you’re headed in that direction.
On the design side, what if a large company mass-produces and sells a product based on a design of yours that was the product of your blood, sweat, and tears? You might remember the Internet buzz in 2011 surrounding Etsy shop owner and jewelry maker Stevie Koerner, who discovered that Urban Outfitters had begun selling a version of what she considered to be one of her distinctive jewelry designs. Koerner made a public statement about the “theft,” and Urban Outfitters eventually made a statement of its own. It’s unclear whether Koerner hired an attorney to contact Urban Outfitters or just made headway as a result of the attention she gained from her post, but making that statement was a risky move. Publicly accusing a large company of theft (without being 100% certain of the facts) could amount to an interference with the company’s business, and doing so could give that company ammo to use against you in court (not to mention the fact that it could then file a lawsuit or counter-suit against you). Note that in its statement, Urban Outfitters pointed out “the jewelry design in question was actually around for several years and was used by numerous designers prior to Stevie Koerner….” That goes back to two earlier points: 1) protection of an idea, and 2) the law of designs. Was Koerner’s jewelry design something that was protectable under copyright law? We may never know, as it looks like the issue was resolved. But, at least according to Urban Outfitters, she was not the only one creating pieces of jewelry similar to the piece at issue. If that’s the case, her “idea” was not unique to her and may not have been protectable under U.S. copyright law.
There are several other actions that could give rise to a legal claim, e.g., if someone uses your name or trademark as “tags” on their Etsy stores or products, or as keywords on his or her website. Those actions fall under the trademark and/or right of publicity umbrellas, and I will talk a little bit more about trademark in my next post!
Finally, one of my most memorable lessons in law school was from a professor that scoffed at the phrase “he won the lawsuit on a technicality.” The professor went on to say that when it comes to the law, it’s all technicalities. In other words, every situation is different, and a legal analysis or outcome can change based a single differentiating fact. That said, my words here should not be taken as legal advice, but rather as educational material for this *lovely* audience. If you have specific concerns, you should always consult an attorney before acting (or choosing not to act).
See you next time when I’ll provide some information on good practices for protecting your IP!
We told you she was a smarty! It’s so refreshing to have these difficult concepts presented in a way that’s simple to grasp, huh? Be sure to follow Maria on Facebook and Twitter, and contact her should you find yourself in a position where you need more personalized legal counsel. She’ll be back in a few weeks with more! xoxo