Autumn Witt Boyd
12 minute read
Trademarks, copyrights, laws, regulations, licenses – legal issues can be confusing and overwhelming for bloggers. I talk with creatives every day who have no idea where to start, so they just bury their head in the sand and try to pretend legal matters don’t matter.
But what you don’t know can hurt you, so you can’t just ignore the legalities of running a business (Yes, if you’re earning money from your blog you’re really running a business, not just a blog!).
So I’m laying out five easy steps you can take on your own without hiring a lawyer to get your blog’s legal ducks in a row (and also pointing out where you can up your game by working with an expert).
Give your blog the best legal foundation right from the beginning by picking a name that doesn’t violate anyone else’s rights and that you’ll be able to protect as you grow.
First, pick a good name. Avoid names that are descriptive (that just describe what your blog is about) such as “Jane’s Baking Tips” for a baking blog or “All about web design” for a web design blog. In the U.S., these kinds of names are not protected by trademark law, so if someone copies the name, you can’t go after them.
Better choices are fanciful, arbitrary, or suggestive, like “A Cup of Jo” (lifestyle blog by Joanna Goddard), “Hummingbird High” (baking blog), or “EyeSwoon” (design and entertaining blog). These kinds of names give an idea or suggestion of what the blog is about without being generic or descriptive and are protected by trademark law.
Second, make sure it’s one of a kind. Once you’ve got a great blog name, you must check to be sure your blog name, or a similar name, isn’t already being used by another similar business. I do three searches for my clients:
Choose “Basic Word Mark Search”
Choose “Plural and Singular” and “Live” then enter your blog name.
You should try variations and misspellings on the name, and try searching with only the main word or two to capture all similar names. Trademark law prevents another business from using a name that would be confusingly similar to an existing business name, even if it’s not the exact same words, so you need to check for more than just exact matches.
Checking for domain name or URL availability is not enough. It’s possible to miss a business that operates offline or is using the name in its business or a product but not as its URL.
Bonus: Once you’ve created value in a brand and would be devastated if someone copied it, you should talk with a lawyer about protecting it with a U.S. federal trademark registration. The registration process is tricky and expensive, so it’s definitely worth working with a lawyer to do it the right way.
You’re also required by the Federal Trade Commission (FTC) to include a disclosure if you write about products or services you got for free, if you were paid to write about them (sponsored posts), or if you are an affiliate earning a percentage of sales for something you’re writing about.
This disclosure can be as simple as a note at the top or bottom of the post, but it MUST be on the post and not a separate page. It should say something like: This is a “sponsored post.” The company who sponsored it compensated me with a cash payment, gift, or something else of value to write it. Regardless, I only recommend products or services I believe will add value to my readers.
Example – disclosure at the top of a post (from Tiffany’s blog stuffparentsneed.com)
You also must use a disclosure on social media posts such as #ad, #paid, or #sponsored.
It’s a good idea but not required by law to include “terms and conditions” on your website. These set the rules for visitors to your blog, such as who owns the intellectual property in what you post and how they can (or can’t) copy your content or your policies on comments. These should also be linked from your website footer (check out ConvertKit’s solid terms).
If you’re writing about sensitive topics like medical, financial, or legal issues, and readers might take your blog posts as your advice, you can also include a disclaimer. This isn’t mandatory, but lets readers know you’re just providing information, and they should consult with their own professional advisor before making a decision. This could protect you if someone relies on a blog post and sues you for a bad outcome.
Example of disclaimer on one of the legal guides on my website.
You can check out these documents, disclaimers, and disclosures on blogs similar to yours and use them as examples to write your own. But be sure you understand what they say and that they actually apply to your blog. If you need help, you can find low-cost templates you can customize for your blog or consult with a lawyer to create them for you.
Any time you’re trading something (services, blog posts, your time) for money, you must put your agreement in writing. When you’re just starting out or for small dollar amounts, you can write your own contracts. Be sure to include:
As your blog grows and you’re dealing with bigger brands or collaborations, or when you get a high-dollar contract that you don’t understand, it’s a good idea to check with a lawyer to be sure you know what you’re agreeing to do and get your own custom contracts that fit how you do business.
Under U.S. copyright law, you automatically own the copyright to everything you create such as text, photos, graphics, music, and videos (as long as you’re not an employee creating it for someone else). These are protected by copyright law as soon as they’re “fixed,” which means they come out of your brain and onto paper or into a computer file.
You’re not required to include a copyright notice on your blog, but it’s a good idea to let people know you’re claiming copyright and will enforce your rights. The notice should have the © symbol, the year the content was published or created, and the owner (your name or company name), and if you don’t want people to copy your stuff, the words “All rights reserved” or “no reproduction without permission”.
Example – copyright notice in website footer (from Jessie’s blog www.styleandpepperblog.com)
You don’t have to register your work with the U.S. Copyright Office, but there are two good reasons you should.
If you don’t register until more than three months after the infringement occurs (keep in mind you may not find out about it until much later), you may only be able to get a few thousand dollars, which is less than it cost to file a lawsuit.
Registration is easy, inexpensive, and can be done online at www.copyright.gov.
If you didn’t personally create a photo, video, music, or text that you want to include in your blog or social media, you must ask for permission to use it.
Need an image? Avoid the Google image search and go to a legitimate stock photography site, like Getty Images, Shutter Stock, Creative Market, Death to Stock Photo, or Unsplash (The last two are free! Because of this, you might see their images on lots of other blogs).
Or try a search for royalty-free, creative commons license images (this means the photographer is happy for you to use them without payment, but usually requires a credit and sometimes a link) on flickr.
Image search on Flickr.com — be sure to click on “Any License” and narrow your search to “commercial use allowed”, or “Commercial use & mods” allowed if you want to be able to edit, or U.S. Government works, which are not protected by copyright)
You may have heard about “fair use”, which is a very narrow exception to copyright infringement, but this is a grey legal area. Unless you’re criticizing or commenting on another work (such as a book review or parody), or your use is “transformative” (for example using a photo as part of a fine art sculpture, not just using a photo to illustrate your blog post), it’s probably not fair use.
If you want to rely on fair use to use someone else’s content, you definitely need to consult with a lawyer to help you evaluate it.
Think something is in the public domain and free to use? Unless it was first published before 1923, you can’t be sure a work is in the public domain unless you do some research to confirm it (handy public domain reference).
One common misconception is that linking back to the source or giving credit protects you or that you can use whatever you want on social media. Not true! You are infringing someone’s copyrights if you use their stuff without permission, even if you link or give credit to them.
Example: this “regram” (using repostapp) gives credit to the original Instagram account that posted the photo, but is still technically a copyright infringement unless they had permission.
The current trend is that most content creators are happy to have their pictures shared on social media because it increases their exposure. But this is no guarantee that this will continue forever. Content creators certainly have the option under the law to sue someone who uses their content without permission.
The downside to using someone else’s content without permission can be severe. You’re exposed to being sued for up to $150,000 per work – so if your blog post includes five photos you don’t have the rights to use, that’s $750,000. Your blog could also be shut down for copyright infringement. You don’t want to receive a cease and desist letter threatening to sue you or shut down your blog because you used photos you found on a Google image search.
Asking for permission sounds scary, but it can be as simple as sending someone an email or private message over social media saying hello, that you admire their work, and asking if they mind if you include it on your blog.
In reality, contacting someone to ask for permission to share their content is a great way to make connections and actually grow your own audience. The person you ask may be flattered and share your blog post. The worst thing that can happen is they say no, and you find something else to use, which is not a big deal.