Blogging and the Law: Five Issues You Need To Know

Last year, Cath Murphy wrote a column on how to be an awesome blogger. Keeping a blog is a great idea for writers. It helps your routine of keeping up a daily word count, it helps you be social with readers and other writers, and it can be a useful platform for your fan- (or potential fan-) base.

But most bloggers aren’t aware of the legal issues relevant to blogging, or how to protect themselves adequately from issues arising. This column aims to build awareness on this topic.

1. Protecting your images from being used – and using other people’s images

Plagiarism and intellectual property theft is rife on the Internet. But there are some really easy things you can do upfront to lessen the risk of this occurring with your blog.

I like to think that most people just don’t understand the ownership of content issue and that’s why they poach content from other websites or books and copy it onto their blog. But then I hear stories about people who regularly have their images or designs used on other sites without permission, let alone attribution.

So what can you do? Use watermarks on photos. They range from those big things splashed across the entire image, to small, subtle watermarks in the corner of your image. What you choose is up to you. Even though copyright is inherent, it’s always a good idea to clearly state that the images are yours and show the copyright symbol. This is also useful in the unlikely event you need to go to court.

You may wish to state that people can use your images, but with conditions. For example, you could implement a small license fee (similar to stock photo companies), or if you’re feeling generous, ask viewers who do use your content simply to link back to your website and attribute you correctly. 

Similarly, when you want to use images on your blog you need to use images that won’t breach copyright. How do you do this? You can use your own photos or graphics (which is what I do) or use stock photo websites. In my August column last year, Suzy Vitello mentioned two good sites in the comments: Morgue File and stock.xchng. If you’re desperate to use something really fantastic that you’ve seen elsewhere, you can always email the creator and ask if the image is available for use and if there are conditions to this. You never know when people will be pleased for their work to be shared…. Or annoyed! All you can do is ask.

2. Protecting your words from being used - and using other people's words

Similar to images, the best way to assert your ownership over your written content is to state it up front.  Insert the copyright symbol on your site and assert your ownership.

Better yet, if you’re the sort who likes to share, explain exactly how much of your blog posts other bloggers can use.  This prevents all sorts of misunderstandings about what constitutes fair use and fair dealing, and can be a great way to direct traffic back to your site.

What should your statement cover? How much you are comfortable being used (e.g. a paragraph or two), that you consider any more to be a breach of copyright laws, and how you like to be attributed (e.g. your name, or your name and a link back to the specific blog post). You could say something like:

All posts on this blog are copyright. If you would like to use any of my material, please quote a paragraph or two and link back to this URL. I consider any more than this a breach of copyright law.

And be wary of what you use from other people’s content. As I've explained previously, copyright law across the world is a complicated beast, and one that differs greatly between jurisdictions. And remember that fair use in America has no correlation to quantity of words. So, how does one navigate this vexed issue? Quote, attribute, don’t be a greedy asshole, and use your common sense. When in doubt, communicate with the author and double check. The author just may be pleasantly surprised you wish to feature a portion of their work on your blog.  

3. Music and song lyrics

We touched on this briefly in August and I went into greater detail on it in the comments section. But it’s an issue that seems to continuously crop up. So, a brief rehash, sans the legalese:

  1. Yes, music and lyrics are subject to the same copyright protections as any other creative piece.
  2. Because of the nature of lyrics, what constitutes fair use is even tighter. Remember: it’s akin to a quality versus quantity argument. One line may breach copyright, because it could be considered the very essence of that piece.
  3. Ask the musician or their agent if you can quote their song. They may say yes, they may say yes and here’s the license conditions. They may also say no and they may just ignore you.
  4. But, but, they’ve ignored me, and I NEED to quote that song! That’s where risk assessment comes into place – something we do every day in our lives and don’t realize it. Is the portion of lyrics you want to use really going to be considered a breach of a band's intellectual property rights? Look at the song in its entirety and consider how important the lyrics are to the piece as a whole. Look at the fame and wealth of the band. Look at the temperament of the band and the potential of being sued by them. Look at the context in which you are quoting or incorporating their lyrics. Look at whether they would ever really read your short story or novel… then make your own mind up. A lawyer can only tell you about the law and risks of taking certain actions, so you need to decide this for yourself.

4. Disclaimers

Depending on the content on your blog, you may need some form of disclaimer policy. If you’re a professional and giving information that may be seen as advice, you need a disclaimer stating that it’s not advice, your readers and users are not clients, and that you’re not liable for your readers’ reliance on the information therein — see my disclaimer at the bottom of this column as an example.

Last year, the U.S. Federal Trade Commission amended their Endorsement and Testimonial Guidelines to include blogs. Bloggers should disclose any “material connection[s]” they have with producers of any products that they “endorse” on their blogs. This includes freebies, as well as things you’re paid to review.  There are theories that this impinges on freedom of speech, but looking at it from an ethical point of view, it’s also good form to explain where you may have a vested interest.  Be aware that whilst the guidelines are considered to be advisory only, they can still be used as the basis of an action under the FTC Act, which has nasty civil penalties for non-compliance.

In other countries, a lack of disclosure about your connection to a product, service or experience you review may still be covered by consumer laws. Apparently this is not yet the case in my home jurisdiction of Australia, but watch this space…

If you’re looking for an example of a disclosure policy, The Reluctant Femme blog uses a policy that I admire. You should also disclose your interest directly in your blog post. Not Quite Nigella does this in a discreet, classy, yet present manner in her blog posts. See the bottom of Lobster Tales for an example.

5. Defamation - an update

Again, my August column contains a thorough explanation of defamation rules.  But in a nutshell: Defamation is a communication that harms the reputation of a person, business, group or government. It differs between states in America and between most countries.  There are exemptions and exceptions, usually surrounding truth, fair comment, criticism, and journalistic privilege.

On January 17 2014, the San Francisco Federal Appeals Court considered whether the protections regarding defamation that are afforded to journalists should be extended to bloggers.  The Court held that there should be no distinction between the two, and that bloggers are entitled to free speech. Reuters quotes 9th Circuit Judge Andrew Hurwitz as stating: 

As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable...

These are my top five issues for blogging. Are there any other issues that you are wary of as a blogger?


Disclaimer: This column does not create a client-attorney relationship and is not intended as legal advice. Should you need any legal advice, speak to an attorney who is skilled in the area and jurisdiction you require. 

Jessica Meddows

Column by Jessica Meddows

In a previous life, Jessica worked for 12 years in the legal industry, with her last purely legal role being the corporate counsel for a property management company in Australia. Since then, she’s been the editor for an online literary journal and currently manages a music/tech start-up. She also freelancers as a contract lawyer and content producer, and writes regular columns for Litreactor and Gypsy Girl.

Jessica’s fiction and poetry has appeared in or is upcoming in Andromeda Spaceways Inflight Magazine (Aus), Beware the Dark (UK), Kaleidotrope, Plasma Frequency Magazine, and Pantheon Magazine.

She loves swimming, and like Peter Singer, considers herself a flexible vegan and focuses on the welfarist approach to animal rights.

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Comments

jyh's picture
jyh from VA is reading whatever he feels like January 31, 2014 - 10:41am

RE 1&2: tumblr's new terms and conditions go so far as to state plainly something like, "If you don't want people to be able to repost your stuff, then you shouldn't put it online." Until a more potent internet-specific legal framework exists, it seems that might be the best way to think about it. Your point about risk assessment applies here as well, I'd say.

Mess_Jess's picture
Mess_Jess from Sydney, Australia, living in Toronto, Canada is reading Perfect by Rachael Joyce January 31, 2014 - 10:56am

You're right on the current legal framework. As it stands, it doesn't deal with the complexities of the internet and content sharing in a satisfactory manner. What the answer is... I don't know, but legal and policy committees in various jurisdictions are looking at alternatives.

My risk assessment point applies to everything in law. Lawyers advise on law - they shouldn't be making commercial or business decisions, unless they are working in a non-lawyer capacity. So everyone (whether individuals or large companies) needs to look at their own individual circumstances and decide how they will implement legal advice or information. 

voodoo_em's picture
voodoo_em from England is reading Zombie Bake Off by Stephen Graham Jones January 31, 2014 - 2:02pm

Great advice Jess, thanks :)

Invaluable (and always somewhat scary!!) column. 

Mess_Jess's picture
Mess_Jess from Sydney, Australia, living in Toronto, Canada is reading Perfect by Rachael Joyce January 31, 2014 - 6:28pm

Thanks Em. I promise, I'll try to start sounding less ominous. ;)

Murasaki_Ducky's picture
Murasaki_Ducky from Austin, Texas is reading Y: The Last Man by Brian K. Vaughan. November 19, 2014 - 9:48am

Hi Jess,

Out of curiosity, what if you post song lyrics to your blog but immediately inform the readers that the lyrics used are not your own and credit is given directly the respective artist? Would this still constitute a breach of rights if you don't have the artist's explicit permission even though you're giving them credit?

Sandria Warne's picture
Sandria Warne November 15, 2016 - 11:40pm

Amazing post!! Really helpful information for both the one intrested in law firm as well as for the bloggers. I was looking for some Legal Advise for Startups and came across your blog and really found it helpful. Thank for posting!!