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Protecting Your Blog and Podcast Intellectual Property

Special thanks to Ted Demopoulos of Demopoulos Associates for encouraging me to prepare today’s blog.

You have a blog and/or a podcast, but what do you actually own? More importantly, how do you keep people from stealing that thing you are not really sure you own in the first place? Well, if you have a blog or a podcast, you most likely own intellectual property. Intellectual property includes patents, trademarks, copyright, domain names, trade secrets as well as other intangible items. While few blogs or podcasts contain all of these types of intellectual property, nearly every blog and podcast contains some intellectual property. The problem is that some types of intellectual property protection attach instantly, while others require steps be taken to prevent the intellectual property from being lost into the public domain. So how do you determine what type of intellectual property you own and how you protect it?

Patents on blogs or podcasts are rare, typically requiring a novel method of doing business. Additionally, the cost ($10K or more), the time involved in getting the patent (3 years or more) and the cost of a patent lawsuit ($1.5 million in attorney fees alone) put patent protection out of reach for most bloggers and podcasters. On the opposite end of the spectrum are trade secrets. Trade secrets include information that provides value by virtue of the fact that it is not generally known and competitors cannot readily reverse engineer the information. Blog and podcast content typically does not contain trade secrets if the content is freely distributed. Customer lists, email lists, behind the scenes algorithms, however, can all be trade secrets if you take the proper steps to protect them. The level of protection required varies with the type of trade secret. For customer lists and email lists, proper protection typically involves preventing any unauthorized access to the information and requiring confidentiality agreements be signed by any vendor requiring access to the information. For other types of trade secrets, you may have to implement more or less security.

While patents are expensive and trade secrets merely involve keeping the information confidential, nearly every blog and podcast has the potential for domain name, copyright and trademark protection. Domain names are given on a first come, first served. If you have a bretttrout.blogspot.com, blog through blogger.com or similar service, you may wish to grab the www.bretttrout.com domain name sooner, rather than later. For a few dollars, you can grab your domain name which a cybersquatter may hold hostage for tens of thousands of dollars a year from now.

If your blog or podcast has a unique name, you may want to obtain a federal trademark registration on it. As soon as you use the trademark in commerce (use it to identify your posts) you have “common law” rights in the trademark. While common law rights are important, a federal trademark registration provides for triple damages and recovery of your attorney fees if someone willfully infringes your trademark. The great thing about these increased penalties is that defendants run scared, rather than fight; something that turns out to be very valuable when you are paying your intellectual property attorney $500/hr to defend your rights. You can check out the Trademark Office for free online at www.uspto.gov to see if anyone has beaten you to your registration. While you can register your own federal trademark for a little over $300, paying $1200 for a trademark attorney to do it right will pay large dividends if you ever have to sue someone for infringement.

Like trademark protection, you have copyright protection as soon as you post a blog. Strangely, the same protection does not automatically apply to podcasts. You have to make sure you record a copy of the podcast to have copyright automatically attach. In either case, you need to register the copyright if you ever want to sue anyone for infringing your copyright. Since the Copyright Office does not compare your registration against previous registrations like the Patent and Trademark Office, Copyright registration is much cheaper. Registering your copyright yourself runs about $30, while enlisting the help of a qualified Copyright attorney runs about $200.

Once you have your copyright registered will a court order an infringer to stop stealing your content? Maybe. It depends on whether the infringer is legally plagiarizing your ideas or illegally infringing your copyright. Plagiarism is presenting someone else’s work as your own. Copyright is the author’s right to reproduce an original work of authorship. Schools and academics enforce Plagiarism standards, while courts enforced Copyright infringement. Copying The Da Vinci Code and publishing the copy as your own, would be both plagiarism and Copyright infringement. The two, however, do not always overlap.

For instance, if you copied the Magna Carta and presented it as your own, that would be plagiarism, since it involves claiming credit for something you did not write. This might get you kicked out of school, but would not constitute illegal copyright infringement, since there is no longer an enforceable copyright in the Magna Carta. Conversely, incorporating large, properly cited, excerpts from The Da Vinci Code in your own novel, would likely not constitute plagiarism, since you are not claiming the work as your own, but might constitute copyright infringement, if you were reproducing the copyrighted work without permission.

While in theory plagiarism and copyright infringement both require proof of access to the original underlying work, the similarity between the original and accused books often circumstantially proves access. If you could definitively prove that you had been trapped in a cave for the last ten years, however, with no access to the outside world, and that you coincidentally came up with The Da Vinci Code word for word, you could, ostensibly get your own copyright on the book and sell your own copies. While this would not constitute either plagiarism or copyright infringement, it would obviously be extremely difficult to prove.

Whether your blog or podcast is associated with copyrightable material, valuable trademarks, trade secrets, domain names or even patentable subject matter you should at least know what you own. Meet with an intellectual property attorney experienced in working with bloggers and podcasters. Have the attorney tell you what you have and what your options are for protecting it. Often, your initial meeting with an intellectual property attorney is free and you do not incur any charges until you actually pursue a formal protection strategy. Even if you decide not to go any further, you at least find out what you have and what your options are for protecting your blog’s and podcast’s most valuable asset.

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