Tag Archives: Publishing

Blogging Without Infringing


In my previous post, I looked at the issue of protecting your blog content and identity. This blog briefly looks at some of the issues concerning the inclusion of other people’s materials in your content.

As I mentioned in the last blog, as a blogger you need to look in both directions when it comes to intellectual property (“IP”). In particular, you should ensure that what appears on your blog – be it text, photos, or comments – does not infringe the IP rights of someone else.

Before you launch your blog, with your new blog identity, you should carry out trade mark searches to make sure your name, tagline and logo don’t infringe the registered trade marks of another person or company.

Public domain and copyright

Moreover, make sure the contents of your blog presence don’t infringe someone else’s copyright. Content is not necessarily in the public domain just because it is freely available to access on the Internet. Unless you have created the content yourself – for example, taken that photograph yourself – you cannot assume that it is not protected by copyright. In fact, you should usually assume the opposite.

Most content is protected by copyright and that copyright will only expire 70 years after the death of the author. While it’s true that there are exceptions which permit some use of protected material – fair dealing in the UK or fair use in the United States, these are limited in scope, as you will see below.

Use of stock images

These days, with search engines like Google, there are thousands of images online for bloggers to use in their blogs. However, make sure your use won’t infringe copyright by checking the terms of the sites you’re using. Do the licence terms cover your blog? For example, if you may only make non commercial use, and do have promotions or otherwise make your blog pay, then don’t download from a site that only allows non commercial use as doing so may well amount to unauthorised reproduction contrary to copyright law.

Fair dealing of copyright material

What happens if, as a blogger, I want to use material such as photo from a news event, or if I want to quote from an article, or book or even if I want to parody such material?

Well, assuming that the content you want to use is protected by copyright (which is likely), the general position, at least in the UK, is that the reproduction of a substantial part of a work amounts to copyright infringement. What constitutes a “substantial part” is a complex and large topic, and will differ in each case as everything depends on the particular facts. So, let’s not get bogged down here with the somewhat tricky issue of what amounts to a “substantial part”, and instead look at what the law permits by way of certain limited exceptions which constitute fair dealing in the UK.

Although there are a number of fair dealing exceptions, only a few are likely to be relevant to bloggers. These include (a) criticism and review, parody and quotation, (b) reporting of current events, and, (c) incidental use (which is not strictly fair dealing but convenient to mention here).

If you reproduce part of a copyright work – let’s say an online article – in order to criticise or review that work or another work, your use may qualify as fair dealing under the law in the UK. This same law also protects you when you feature a quotation of a work. However, it’s important to note that you may not freely reproduce a work if you want your use to be “fair”. So, reproducing an entire article on your blog is unlikely to be fair dealing. And the exception applies only to published works. Moreover, you must normally also include a sufficient acknowledgement of the original work.

The law in the UK also provides for fair dealing of third-party copyrighted material for the purpose of reporting of current events. However, photographs are excluded from this exception and so you cannot download and reproduce a photograph for the purpose of news reporting on your blog. While it might seem obvious, the events must be “current” and you must normally include a sufficient acknowledgement.

A blogger may also make incidental use of another’s copyright work without infringing copyright in that work. However, the law in the UK expressly excludes the deliberate inclusion of another’s music or lyrics. For example, you cannot add a song in the background of a video clip and claim that your use was incidental use if the song owner objects: it is not incidental use in this example because the music was included deliberately.

Creative commons licences

The last decade has seen the rise of open access forms of disseminating works known as Creative Commons (or (“CC”) licences. These provide for standard-form licences allowing members of the public to reuse a work in particular ways. Creative commons have sought to develop a suite of licences for many types of works.

The CC licences offers copyright owners a suite or menu of terms for using content. Some of these only allow reuse in an unmodified form. Some only allow reuse with attribution. Others only allow reuse for non-commercial purposes.

While CC licences have become extremely popular in recent years, the most common kind is the “attribution, non-commercial, non-derivative works” licence which only allows the user to reproduce, distribute, or play the work in a non-modified form, only for non-commercial purposes and with attribution of authorship. As a consequence, CC licences are generally better suited to users who do not seek remuneration from copyright.

Using other’s logos or trade marks

A question that often arises is to what extent people may include the brand logos or trade marks of others in blog content. In terms of logos – say, logos of famous companies such as Virgin, Barclays, or Coca Cola – the best advice is: “don’t” because most of brand logos are usually protected by both trade mark registration, and copyright. This means that any reproduction by you on your blog of another’s brand logo is potentially copyright infringement.

In contrast, the mere reference in your blog to a word trade mark  – such as “BARCLAYS BANK” or “GAP” – is unlikely to amount to trade mark infringement. This is because, generally speaking, names do not enjoy copyright protection. Also, trade mark infringement is based on consumer confusion and so a mere reference to BARCLAYS BANK in your blog is not necessarily going to confuse your readers. That said, if your use is such that the relevant consumer might be led to believe that your blog is somehow connected to or supported by Barclays Bank, your use could potentially amount to trade mark infringement. So, when in doubt stick to merely referring to their brand names and avoid using other’s trade marks in such a way as to cause consumer confusion.

So, now that you have some basic insights into the IP laws, happy blogging!

 

Personality Images And IP

In the lead up to the Christmas and new year season, most of us are accustomed to seeing television advertisements featuring well-known actors and personalities endorsing a range of luxury products such as perfumes and watches. While it is obvious that a personality like Sean Connery will have been handsomely rewarded for endorsing a famous brand of watch, such endorsements raise the interesting question as to what extent a person, famous or otherwise, can control the use of his or her image or likeness in the sale of products or services. Can, for example, Sean Connery stop me from selling 2018 calendars bearing his image on the front cover?

At least in the UK there is as yet no recognised legal right of publicity or personality. This means that a person has no specific legal right in the UK to control the unauthorised use of their image or appearance.

Celebrities

That said, that does not mean that persons such as celebrities are not without some legal remedies. It is quite common these days for famous persons such as actors and sports stars to register their name or signature as a trade mark. So, for example, both David Beckham and Victoria Beckham have registered the names DAVID BECKHAM and VICTORIA BECKHAM respectively as EUTMs in respect of a broad range of products and services including personal care products, electronic goods, jewellery, watches, clothing and fashion accessories. Similarly the popstar Rihanna has obtained an EUTM registration of the word RIHANNA for various clothing and fashion products. This means that the unauthorised use in trade of their name in relation to such products is likely to be held to infringe their trade mark registrations.

Where celebrities have faced greater challenges is in registering their image as a trade mark. This is because it has usually been held by the trade marks office that an image or likeness of a famous person will not be perceived by the public as being a trade mark. As a consequence, famous persons have usually struggled to register their image or likeness as trade marks.

Does this mean that I am at liberty to sell t-shirts or calendars bearing the image of a famous person? The answer is: not necessarily. Even if the famous person in question does not have a registered trade mark of their image or likeness, that person could still successfully challenge use by me of their image on the basis of the common law remedy of passing-off.

Passing-off

Passing-off is a legal remedy that protects the goodwill which has been built up by a person in their business, from being wrongfully appropriated by another person. To succeed, a claimant must typically prove three elements: a recognised goodwill in the UK, a misrepresentation by the defendant, and damage caused to the claimant’s goodwill.

For present purposes, the key element to be proved by the famous person or celebrity is misrepresentation: will the public be misled into believing that my 2018 calendar bearing the image of, say, Sean Connery on its cover has been approved by or has some connection with that former Bond star?

Courts’ approach

Generally speaking, the courts in the UK have been reluctant to conclude that the public has been misled into buying merchandise bearing a celebrity image. Instead, the starting position of the courts is to say that merely placing the image or likeness of a person, famous or otherwise, on, say, a garment, is not in and of itself passing-off.

In order to succeed, the celebrity must prove that the public has somehow been deceived into thinking that he or she has approved or endorsed the product and that that belief has played a part in the purchasing decision. This is usually not an easy hurdle to overcome because the public are well used to seeing celebrity images on all kinds of products – such as t-shirts, posters, stickers – without seriously believing that the celebrity is somehow behind that product.

However, a celebrity can still succeed if the particular facts support the claim that the public would indeed buy the product due to a mistaken belief. A few years ago, Rihanna succeeded in a passing-off action against the owners of the TOP SHOP retail chain which had been selling t-shirts in their stores bearing her image. Although the High Court pointed out that merely placing a celebrity image on an item of clothing is not automatically passing-off, the judge accepted the claimant’s evidence that the pop singer had previously had a publicised commercial arrangement with TOP SHOP such that at least some shoppers would likely to have mistakenly believed that Rihanna had some association or connection with the t-shirts bearing her image.

What then are the steps I can take to avoid or at least reduce the risk that I might be successfully sued for using a celebrity image on the cover of my ficticious 2018 calendar?

Managing risks

If you propose to use a celebrity name or image on a product line, you should check whether the celebrity has any trade mark registrations. If, for example, they have protected their name, there is a real risk that placing their name on your product could infringe such trade mark registration, assuming it covers the same or similar goods.

Even without trade mark registrations, we have seen that a person can successfully challenge unauthorised use of their image by means of a passing-off claim. Using terms like “official” or “unauthorised” will greatly increase the risk of confusing the public and so should be avoided.

Moreover, if the celebrity in question already has a reputation for promoting or endorsing products or services, the courts are more likely to conclude that the public may be misled into thinking that there is some connection with your products.

However, the risk of a successful challenge is likely to be greatly reduced if the person is no longer alive.

While we strongly recommend that entrepreneurs always seek express permission before commercialising the image of a famous person or celebrity, by taking the steps outlined here, the risk of a successful challenge from a celebrity or personality may be significantly reduced.

Written by Shireen Smith and Kieran Heneghan.

Intellectual Property Reforms Prove Successful – From Zero To Hero

IP Reform is SuccessfulAn independent report commissioned by the IPO entitled Evaluation of the Reforms of the Intellectual Property Enterprise Court 2010-2013 was published very recently examining the effect of the recent reforms in the Intellectual Property Enterprise Court (IPEC), the former Patents County Court (PCC).

The primary objective of the recent changes were to improve the litigation procedures and reduce litigation costs and, as a result, to increase access to justice in IP matters with special focus on individual claimants and SMEs who struggled financially to fight IP cases. Yassine Lefouili, one of the co-authors of the report, affirms the positive developments following the changes resulting in qualitative and quantitative evidence that there has been large increase in the number of intellectual property cases.

Governmental support

Introducing the report, IP Minister Baroness Neville-Rolfe praised the changes and confirmed that small and medium sized businesses and entrepreneurs now have better chances to actually defend their IP rights. This is good news, especially following a recent FSB research we wrote about in our article “SMEs And IP – FSB Reports They Struggle To Protect Their Intellectual Property” which revealed the struggle of SMEs and start ups to protect their IP.

The improvements come as a result of the costs cap and the 2010 active case management process. These amendments speed up the litigation process and also serve as an awareness tool for litigants to understand better their exposure before filing a claim. What is more, as Chloe Smith underlines for the Law Gazette, changes have opened up IPEC for patent and trade mark attorneys who are now able to represent their clients in court more often.

This suggests that reforms have paid off and, as the PatLit suggests, with the introduction of the Small Claims track we might as well have even better news in a following report.

Judges Increasingly Allow Discovery Of Private Facebook Content

Judges increasingly allow discovery of private Facebook contentCourts in the United States are beginning to allow private social media content to enter into trials as evidence. Recent examples in both Florida and Louisiana demonstrate that “…a trend is emerging, …and as social media pages land front and centre in courtrooms across the [U.S.], companies and individuals” should pay attention. It may be prudent to adopt an increasingly cautious approach in your activity online.

In the Florida case of Nucci v. Target Group, where Nucci sued for physical and emotional damages, she was required to produce her Facebook photos which had been private. The Court reasoned that because of the nature of her claims, intangible damages, the Court would need to use the photos as evidence to establish what her quality of life was like before the accident.

Social media content has also been found to be admissible evidence in trademark infringement suits. In Ingrid & Isabel, LLC v. Baby Be Mine, the Court ordered that Baby Be Mine produce their customer comments on their Facebook and Twitter accounts to demonstrate that the two products were confusingly similar.

To read more about the implications of private social media accounts being used as evidence in the U.S. please see: http://www.ipwatchdog.com/2015/04/23/judges-increasingly-allow-discovery-of-private-facebook-content/id=57060/

Facebook’s Mark Zuckerberg Bites Back In Internet.org India Row

Zuckerberg bites back in Internet.org India rowZuckerberg reportedly argued in a blog post that Internet.org’s basic free services were not incompatible with net neutrality – the principle that all web services should be equally accessible. “We fully support net neutrality,” he wrote. “Universal connectivity and net neutrality can and must co-exist.” But critics were quick to respond. Writing in the Hindustan Times, India’s Save The Internet coalition maintained that Internet.org is “Zuckerberg’s ambitious project to confuse hundreds of millions of emerging market users into thinking that Facebook and the internet are one and the same.”

Distorting competition?

At the heart of the row is Internet.org’s policy of “zero-rating”, whereby telecoms providers agree not to pass on the costs of handling the data traffic so that consumers can receive services for free. Critics argue this has a distorting effect on competition, making it difficult for publishers not signed up to Internet.org to reach the hundreds of millions of poorer people in developing economies who have no internet access at all.

Read the full story, reported by the BBC: http://www.bbc.co.uk/news/technology-32349480

Content is king

Content Is King – But Should You Let Others Use Yours?

Content is kingContent is important if you want to be found online. That’s well known. What is less understood is what the considerations are if someone asks to feature your content on their site.

With the proliferation of news aggregators, chances are you will at some stage be approached to syndicate your content. So, should you give permission?

Duplicate content

Google and other search engines can be confused when duplicates of the same content appear online. If so, will they penalise your site and will you still get the benefit from posting the original content on our own site?

According to SEOMoz if you syndicate content, the site that posts a copy of your content should put a link back to your site. In this way the search engines know whom to credit with the original content and there will be no duplicate content penalties.

Search Engine Land offers useful advice about how to syndicate and how many posts to permit others to post. It points out that you want your site to provide authority for the topic in question. So it would be a waste to let someone else take all your content. You want to leave people with reason to visit your own site.

Content scrapers

But what if someone doesn’t ask for permission and simply scrapes your content without linking back to you?

This is going to confuse the search engines as they won’t know who to credit with the original material. However, the search engines may have ways of working out if it’s a dodgy site with a low page rank that is copying your content. If so, presumably they will penalise the scraping site and credit yours with the material.

If the search engines are unable to identify which of two sites featuring the same content to credit, then according to Search Engine Land there may still be benefits for your site.

Google recognises the problem of a scraping site getting credit over the originator of the content as this article amusingly reveals. Matt Cutts of Google tweeted as follows:

Tweet-Matt-Cutts

Someone then pointed out how Google itself was a prime example, as it was scraping Wikipedia for a definition of scraping and ranking itself above Wikipedia.

Copyright

To what extent does the law of copyright come to your help if others are scraping your site?

You can use the fact that your copyright has been infringed by the illicit copying to have the site taken down.

If copying of your content happens a lot you might want to ask your brand protection team to carry out spot checks and approach offending sites to take down your content on a regular basis.

Is there copyright infringement if your content is featured on the aggregator’s site in iframes? For example, if by adding code to a video another site has embedded your content on theirs. Technically, such a site is linking to your site’s content, and retrieving it for viewing on their site.

The Meltwater case as discussed in my earlier blog posts Linking And Copyright Following Meltwater V. Newspaper Licensing Agency, and Managing Risks Of Copyright Infringement When Linking Post Meltwater V. Newspaper Licensing Agency.raised doubts as to the legality of such a widespread practice as linking to other websites and embedding video (effectively sticking code on a site to point to another server). 

However, one of the major copyright cases of 2014, Svensson decided that did not constitute copyright infringement  as this article shows. The Svensson decision clarifies the position.

So now it is clear that if you make a third party’s video or other freely available copyright content available through an iframe you do not infringe copyright. That is because technically you are not uploading it. The source material, such as the video, is stored on a different website. So the content, though displayed on your site for viewing, is not a copy.

Linking

Although it is now settled law that linking does not infringe copyright, there are still questions remaining following the decision in Svensson. For example, linking to content that circumvents a paywall would not be permissible. And there may be exceptions where there is a new public to whom the copyright content is being shown.

There are unanswered questions, such as what effect it would have if a site’s terms of use disallowed linking to its content. Would linking to such a site mean that a new public was thereby seeing it, so that the Svensson conditions were no longer satisfied?

Google news

Interestingly following the Svensson decision the Spanish Government passed a copyright law forcing aggregators to pay news publishers for linking to their stories.  The Guardian reports that in response, Google withdrew its news service from Spain.

Consequently, Google no longer offer Google News in Spain.

Conclusion

There’s no doubt that allowing news aggregators to use your content is a great way to reach a wider audience. However, it is important to make sure that you limit the amount of content you syndicate.

Also, you need to make sure that where your content is used there is a link back to your site so that Google and other search engines know it is your content originally. For this reason, keep an eye out for sites scraping your content for their own purposes.

.If you have any queries concerning online content, please contact us at [email protected]

Which Publishing Platform To Use

One of the first questions many people asked when I announced that I was writing a book was ‘who is the publisher?

This early question that presents itself for would-be authors is actually quite a complicated one to address. The terminology alone is mind boggling. There is ‘vanity publishing’, ‘self publishing’, ‘co-operative publishing’, ‘conventional publishing’, ‘print on demand’ to understand before you can consider the  bewildering array of choices.

So, it might be interesting to those of you who are considering writing a book to know that I’ve opted to self-publish mine by setting up Azrights Media Limited and using Publishing On Demand provider Lightning Source.

Lightning Source is used by many publishers, but in order to use its service you need to set up your own publishing company. Why would you want to do that?

Well, it appealed to me more than other options such as self-publishing via Lulu, which is less satisfactory on a number of levels. For example, Lulu keeps a much higher share of the revenues from your book sales.

There are so many options available to authors nowadays, apart from conventional publishing and this article provides some food for thought.

The trend for people to self-publish is serious cause for concern for traditional publishing companies, but, as noted by Sukhdev Sandhu at the Guardian, things may be looking up for smaller publishers.

Many argue that innovation in the field has opened up powerful opportunities for those who are willing to think a little differently, embrace social media and technology, and, according to Jonathan Fields, to invest in tribes.

Personally, my main reason for not wanting to use mainstream publishing is the time it takes to get your book out to market, the loss of control over the type of book you can write, and the fact that you don’t have freedom to exploit the rights in the book in the ways you may want to do so.

There is a middle ground known as co-operative publishing. An example of one such provider that I was intending to use initially is Ecademy Press. (Interestingly, they too use Lightning Source). There are also traditional style publishers who are more selective about the types of book they will publish, such as Bookshaker, and yet also allow you to keep more of the royalties from the book than traditional publishers.

In the end, it didn’t take me long to decide to opt for self-publishing because being an intellectual property lawyer, I tend to think in terms of the rights. I knew that I wanted to own all the rights in the book so as to have complete freedom over the material. My plan is to produce some training materials and to work with lawyers in other countries to develop translations. So, although the book is going to be an ordinary business book rather than a law book, its content is relevant to our other plans and therefore, it was appropriate for us to go to the trouble of establishing our own publishing company and publishing the book ourselves.

When considering self-publishing I was initially drawn to Amazon’s platform  Create Space, but at the time of writing their books are shipping from the US only, so it would not have been a suitable option for my target audience of UK based businesses.

By working with an experienced editor, a good designer and typesetter, it is certainly possible to produce a book that is of as high a quality as those printed by conventional publishers. Possibly distribution is better when you use a traditional publisher, but nowadays with the importance of Amazon in book sales and the diminishing role of bookstores that may be more of a theoretical disadvantage than a real one. It remains to be seen.

So, in conclusion, the gulf between self- and professional publishing is narrowing rapidly, and there are a wide range of options to suit all requirements. Watch this space to see how I get on when I publish Legally Branded which will be out within the next few months.