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Keeping Your Blog Out of Court

This will be the topic of my speech at BlogWorld Expo in Vegas November 8. If you plan on attending, come hear me speak and/or look me up. The first five readers who do, will get a signed copy of my new CyberLaw book.

While we are on the topic of keeping your blog out of court, Kevin O’Keefe wrote an excellent post on a Texas mother suing Verizon for using Flickr ads of her minor daughter in an advertising campaign. While the photographer gave consent to use the photo, the subject did not. Copyright and creative commons guru Lawrence Lessig notes that creative commons licenses are designed to deal with copyright and do not purport to address privacy issues. Lessig notes that without a “model release” issues of publicity and privacy remain a problem.

As an intellectual property attorney since 1992 and a blogger since 2003, I see basically two types of bloggers. The first type, comprising the majority, are not considering copyright issues, let alone privacy or publicity issues when they post images on their blogs. The second group work off a misguided hodgepodge of copyright urban legends they found on the internet.

In my experience, the second group is even more dangerous than the first. At least when the first group gets caught with its hand in the cookie jar, it repents and tries to make amends. They contact their intellectual property attorney immediately and usually avoid huge damages. The second group, however, is so steadfast in its misguided beliefs that it is often headlong into litigation before it realizes the errors of its ways.

I would be interested in finding out how the second group thinks it can determine the absence of any privacy violations with Flickr photos. Do they actually determine the names and addresses of every individual in each photo and get a signed model release from each one authorizing use of the photo?

If you are a Flickr-using blogger and think the Flickr creative commons license insulates you from liability for privacy violations, or even from copyright violations in the event the poster is not really the owner of the photographs, please jot down my name and address. You may be needing it in the near future.

Also, if you could do me one more favor and ignore the cease and desist letter you get from the copyright owner or subject of the photo. Its just that I make a lot more money trying cases than I do having my clients comport with the copyright and privacy laws in the first place. And my kid wants a new Jet Ski for Christmas.

Brett Trout

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