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Protecting Your Blog’s Intellectual Property

You have a blog or a podcast, but what do you actually own? The answer is “intellectual property.” Most bloggers and podcasters have a copyright in their content and a trademark on their name and do not even know it. Some bloggers and podcasters even have valuable intellectual property in their domain name, patentable process and/or the trade secrets embodied in email lists and what goes on behind the scenes. Unfortunately, failure to properly protect this intellectual property can cause it to move into the public domain and be lost forever.

So how do you protect your blog’s/podcast’s intellectual property?

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 serve basis. If you have a http://bretttrout.blogspot.com, blog through blogger.com or similar service, you may wish to grab the http://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 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. There is just 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 is often enough to make access a moot point. If you could definitively prove that you had been trapped in a cave for the last ten years, 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. It is important to meet with an intellectual property attorney experienced in working with bloggers and podcasters to tell you what you have and how to protect it. Often, an initial meeting with an intellectual property attorney is free and you do not incur any charges until you actually pursue formal protection. Even if you decide not to go any further, it is a good idea at least to find out what exactly what you own and your options for protecting your intellectual property.

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