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Know Your Online Baby Photo Rights

Aug29

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Advice Smackdown ArchivesUh hi,

I’ve been reading your blog since Ezra was a little baby. I lovelovelove it! Your boys are totally delicious (is that a weird thing to say? I feel like that was weird.)! Congrats on baby Ike and pretty much being kick-ass in general! I recently gave birth to my own little man named Archer. Yay boys! I also happen to be breastfeeding him as I’m typing this (TMI?). Yay boobs!

Anyhoo… I started a blog a few years ago to keep my friends/family in the know about my wedding planning and stuff. Well, turns out people really like babies. Now that Archer is here, and thanks to our good friend Social Networking, I have “a lot” of people looking at my blog. Here’s the part where I have a question:

Sooooo… how do I copyright a blog? I went to the copyright.gov website and my mind exploded. I mean, I’m no Tolkien, but I don’t want what I write or pictures of my kid stolen.

HALP!

Thanks,
Brenda  

Okay, so. This is a topic near and dear to my heart, obviously as an online writer/blogger/poster-of-kids-photos, but ALSO because in my last years of college I switched from an English major to Communications, with a focus on communications law. I then proceeded to do absolutely nothing with that particular focus, except develop a lot of headaches during each and every Internet kerfluffle over stolen posts and photos because there is sooooooo much misinformation flying around about copyright, trademark, fair use, plagiarism and what these terms mean out here in the wild ol’ Internet.

In other words, hold onto your butts, because I’m about to get SUPER CRAZY BORING:

In order to “copyright” something — be it a piece of writing, a photo, a song — you only have to create it. That’s it. The act of creation makes it yours. Sure, you can (and should) add one of those little “COPYRIGHT 2011 ALL RIGHTS RESERVED DON’T STEAL YOU JACKWADS” things in the footer or sidebar of your blog, and you can (optionally) file various forms and things with the copyright office or post a Creative Commons license spelling out what usage you’re okay/not okay with, but here’s the thing: You still own your words, photos, or other work even if you don’t do any of that. If you find that someone has jacked your blog posts or photos, all you really “need” is a way to prove that you wrote/took the photo FIRST. Public blogs, having nice things like timestamps and dates and URLs and all that, make this job pretty easy.

(For things not so easy to prove, like say, the draft of the novel you’re about to send out to publishers, filing with the copyright office is helpful, because it gives you the proof you need that you created X work on Y date and that Z work was created later and is a big ol’ stealypants. Publication is not required to claim copyright.)

What you are probably thinking of is trademark. Trademarking is more complicated and definitely requires filing forms and paying a few hundred dollars and has a higher burden of proof on you, the author, to provide evidence that yes, you are entitled to a particular trademark because it’s yours, you thought of it first, and it doesn’t infringe on existing trademarks (i.e. a cartoon named Mackey Mouse) or is an attempt to trademark something that shouldn’t be trademarked (i.e. the word “Mouse”). Most bloggers honestly don’t need to worry about trademarking anything beyond say, their blog/brand’s name. (Think “Alpha Mom” or “Dooce” or “Mamapop” — all trademarked.) A registered trademark gives you SUPREME POWER AMMO if someone were to come along and try to confuse readers by creating a site with the same name or logo or something super-similar (even in another language).

However, even if your blog name/brand/logo is trademarked and someone steals the CONTENT of your blog, you’re still talking copyright, not trademark. And you will always, ALWAYS own the copyright to your blog and its contents. (Provided you didn’t steal them from anyone else. WORMHOLEOMG.)

But. Listen. You can copyright, Creative Commons and trademark to your hearts’ content, but none of these things can in and of themselves prevent your writing or photos from being stolen, or for your copyright from being violated by people who don’t do a good due-diligence Google before deciding on a blog/brand name. The folks who steal are either 1) completely ignorant that stuff they see on the Internet isn’t up for grabs, or 2) know better but don’t care.

I’ve had entire posts stolen and republished on someone else’s blog. I’ve had my RSS feed scraped, I’ve had photos stolen, blah blah blah. So I fight back, each and every time. I know my content is mine, I know a violation when I see one, and no, I don’t really care if it’s just some teenager on MySpace or a major corporation. It’s WRONG. STOP IT.  I make a polite attempt to contact the violator and ask them to remove my stuff. If that fails (and oh, it so often does), I move on however I deem appropriate: Reporting them to whatever hosting/blogging service they are using, sending DMCA (Digital Millennium Copyright Act) takedown notice or a cease-and-desist letter, etc. And of course, a brutally public shaming online. Heh.

One more thing: If you are using any third-party service — like Flickr, Facebook, etc. — it’s a really good idea to actually read the terms of service and privacy policies and all that. Flickr had trouble with companies treating it like a free stock photo site for awhile because it expected users to set the usage rules for their photos themselves and some people didn’t know this…and some companies just went and ignored the little “no commercial use/all rights reserved” notices ANYWAY. Read the fine print and find out if there’s something the service expects YOU to do — some setting or checkbox — to ensure that if you come to them for help with a violation, they will agree that you did everything “right” and the copyright thief is in the wrong. (And don’t even get me started on Facebook.)

Oh wait. I done got myself started: A very shady/spammy company recently swiped a photo of Ike from my blog and used it in a Facebook ad. When I complained on Twitter and Facebook I was immediately swamped with misinformation from people about Facebook’s policies. Everything from Facebook owning all commercial rights to anything and everything you post there, so if I uploaded the photo to Facebook that’s “why” this happened (not true), from companies having permission to use your photo albums as stock photo sources (also not true — there was a time when your profile photo could be used to promote pages you “Liked” to your friends if you didn’t change a setting, but that’s since changed and NEVER have companies had the right to use your personal photos in ads) and my favorite, which was that since I linked to my blog posts from Facebook, that gave the company the right to take a photo from there. WHAT THE WHAT?

I spent an hour at Facebook’s Help Center reading up on their privacy/copyright policies and reported the CRAP out of that ad, because it was in clear violation of Facebook’s Terms of Service (TOS) for advertisers. The ad was quietly pulled a couple days later, though it wouldn’t surprise me to see it again under a different ad buy. (I could never track down contact info for the offending company. SO SHADY.)

It’s a really crappy feeling having something stolen — particularly a BABY PHOTO. It’s a violation, pure and simple. For some people, it’s not worth the risk, so they password protect their blogs or don’t keep a blog at all. Some people still like to blame the blogger for posting the content in the first place, because they should have known it was a risk. Well, yeah. I know it’s a risk. I also know that if I leave my house and cross the street, there’s a risk of getting hit by a car. Instead, I know my rights, I know how to fight back. Again: the act of creation gives you copyright. Don’t let the dirtbags out there stand in the way of creation, because it’s an awesome thing.

Photo credit: Thinkstock

About the author

Amalah

http://www.amalah.com
Amalah is a pseudonym of Amy Corbett Storch. She is the author of the Advice Smackdown and Bounce Back. You can follow Amy's daily mothering adventures at Amalah. Also, it's pronounced AIM-ah-lah.

If there is a question you would like answered on the Advice Smackdown, please submit it to amyadvice@gmail.com.

Amy also documented her second pregnancy (with Ezra) in our wildly popular Weekly Pregnancy Calendar, Zero to Forty.

Amy is mother to rising first-grader Noah, preschooler Ezra, and toddler Ike.


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14 Responses to “Know Your Online Baby Photo Rights”

  1. andrea Aug 29 at 1:10 pm Reply Reply

    Wholly crap!  I can’t believe they didn’t think you’d see it and recognize your own baby!  wtf

  2. Hannah Aug 29 at 1:24 pm Reply Reply

    Just checking in from the Legal-O-Verse to say, yes to everything Amalah said, and if the violation is serious enough (i.e., ShadyCo above) and you think someone’s making actual money off of the stuff they stole, consider hiring yourself a lawyer to send even more nasty letters, cease-and-desist demands, and potentially, ACTUAL LAWSUITS.

    (which are expensive, etc., etc., but if it’s serious enough…go for it)

  3. Daisy Aug 29 at 2:54 pm Reply Reply

    Chiming in to say that a year ago my LAW SCHOOL (from which I graduated and hold a degree from) used a stock photo of me (taken in a law school photo shoot for a brochure) to promote…wait for it…wait for it…..their new paralegal program. On Facebook. And the ad ran in Chicago and one day I came into work with an inbox full of messages asking me why I quit being a lawyer, and “oh man is the job market that bad?” because EVERYONE I went to school with saw the ad. It was horrible. And there is nothing like a lawyer fighting a law school for a good time (she says sarcastically). Anyway, the ad was removed, I rescinded my permission on the photos & all is well. My point is: you have to be vigilant.

  4. Mary C Aug 29 at 3:30 pm Reply Reply

    Here’s a related question:
    -You are in a public place or at a public event.
    -Someone takes your picture without your knowledge or
    permission.
    -they post it online and/or sell it and/or use it in an ad or news
    story.
    -You contact them asking them to remove it because it is a) inappropriate, b) unflattering or c) of your underage child

    are they required to do so? do you have any legal recourse if they refuse?

    Thank you for any insight you can provide,
    Mary

    *********************
    Isabel says: see pseudostoops’ answer below. If that situation happened to me (ie, they refused), I would check with a lawyer.

  5. Beth Aug 29 at 3:54 pm Reply Reply

    I totally saw that ad with Baby Ike and I wanted to ask you about it, but we’re not like IRL buddies so I totally chickened out and now, here you are, all talking about it! OMG! I’m so glad about so many things. Like, that I recognized your baby, and more, well, most importantly that you got them to STOP IT with your BABY’S FACE!!

  6. JB Aug 29 at 5:25 pm Reply Reply

    This is why I remain completely anonymous online, though I do enjoy reading others’ sites/blogs. (So, am a hypocrite). This stuff creeps me out to the extreme. I do not even let people “tag” my location in Facebook, and no one can find me who isn’t already my friend. It’s all creepy, to me.

    Which is too bad, b/c I think it would be fun to have my own site, without fear of images/entries getting hijacked.
    I’m no help, I know…

  7. Suzy Q Aug 29 at 5:49 pm Reply Reply

    I am also completely anonymous on the Internets, by choice.  However, if I follow you on Twitter or I have been reading your blog for years, you pretty much know who I am, as I have probably emailed you at one time or another, and I always will tell you my real name.

    For those blogger-peeps that I love (like you, Amy!), I always report to them when I find content or photos hijacked by someone else. I am a Tiny Invisible Internet Crime Fighter!

  8. pseudostoops Aug 30 at 11:04 am Reply Reply

    I love Amy’s answer, because it is correct! and clear! So helpful.

    As far as Mary C’s question is concerned, while laws vary state to state, people actually have few privacy rights in public– generally speaking, if you’re in public, your picture can be taken without your permission, unless you’re in a place where you would reasonably expect privacy (dressing room, bathroom, etc.) How those photos can be used varies- generally it’s okay to use them for non-commercial purposes (ie, newspaper), but many states impose restrictions on using them for commercial purposes (ie, in an advertisement) without your permission. But again, privacy laws vary by state, worth looking into your state’s particular laws.

    *********
    Isabel says: thank you for chiming in. I have modified my answer to have folks come look here. Though personally i still have questions. For example, all newspapers I know of are commercial entities (some may claim to serve a public interest though they sell ads in their pages).

  9. Lindsey Aug 30 at 1:03 pm Reply Reply

    To Mary C: a lot of people in our litigious society forget a step before going to a lawyer- ask the person to remove the photos! I am not sure if you are speaking of a specific incident, but most people would be happy to comply with your request.

    This does remind me of when I was taking some photos in Boston. Some man yelled at me that I was not legally allowed to take photos of his dog (not true) but I wanted to respond- your dogs are messing up the shot and aren’t that cute! :)

    *****************
    Isabel says: you’re correct and I agree. we should always ask first to have the picture taken down (I bet it probably would be). My answer below was framed to respond to Mary C’s question about someone refusing (I see I wasn’t clear initially– so I modified).

  10. pseudostoops Aug 30 at 9:42 pm Reply Reply

    Isabel- You’re so right, newspapers ARE commercial entities, but courts considering this matter, as far as I know (and I can’t claim this is an exhaustive 50 state survey, but I do know of at least a few cases) have determined that despite ad sales, newspapers aren’t “commercial” the way that, say, advertisements or product packaging are.

    **************
    Isabel says: Thank you. and this is why I call upon lawyers when in doubt. it’s to answer my questions and seek advice. :)

  11. Candace Aug 31 at 8:57 pm Reply Reply

    Awesome work pseudostoops, you give us lawyers a great name. Since you took all the fun out of this post for me can I just say to “Daisy” OMFG! They used a LAW STUDENT PHOTO for their paralegal program?!?!?!?! Seriously?! Like you wouldn’t notice?! I almost died laughing! I am sorry, I am sure it was a b@#ch to go through, but wow, what a story…..

  12. Brenda Sep 01 at 1:17 pm Reply Reply

    Oh my gosh! Thank you for answering my copywriting/trademarking question! You and everyone in the comments section were totally helpful. I will be posting stories and pictures of this baby with far less trepidation now. Thank you again for being awesome!

  13. Jennifer Sep 09 at 9:56 pm Reply Reply

    some hosting sites you can pay extra so that your images can’t be right-clicked and copied. That’s what I did for my photography website and yes there are so many things that define if you can or can’t use a “public” photo. But to make things a little easier if I do anything along those lines to make sure that it is safe for me to use I try to purposely blur the image of that person or get it as a silhouette that way you can’t tell who it really is. But if you go out in public you are for the most part volunteering for someone to use you in their photos.

  14. reka Sep 12 at 6:59 am Reply Reply

    Jennifer, even if right-click option is turned off, there are several ways of stealing a picture. The easiest is a print-creen imported into a photoshop. And since in most cases the person stealing the picture wants to use it in a commercial way (ad, website design…), they probably have photoshop.

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