Whenever I give a talk on online marketing law, social media law, or intellectual property law, the first question I try to answer (and many times am asked), is exactly what is a copyright? The U.S. Copyright Office describes copyright as “a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression” covering both published and unpublished works. To be more specific, copyrights typically cover artistic works such as drawings, literature, paintings, and photos. When looking at the online world, it covers areas such as blog postings, music, photos, software, website content, and videos.
To get a copyright, one only has to put the idea to paper (or in our modern age, on your computer, laptop, iPad, etc) – for instance, as soon as I wrote down this blog post, I had a copyright in this blog post. The picture attached to it is one that I took – and I received a copyright in that photo as soon as I took it. I did not have to register anything, I did not have to pay anything for the copyright, I did not have to do anything except have the idea and put it in a tangible form (i.e. take the photo, write the blog post, sing the song). However, in many cases, I may want to register the copyright to gain additional rights in the work and to help prove the work is mine.
To register a work that I have created, I have to file with the U.S. Copyright Office. Depending on what I am registering, I may have different forms or different filing costs. In most cases, it costs around $35.00 (although the fees may be more) and can be done online. Once I have registered my work (for instance lets say, this blog post), I have additional statutory damages I can claim. That means that if someone uses my blog post without permission (aka commits copyright infringement), I can get higher damages in a court case than I could if the work was not registered. In addition, in many cases, I am entitled to attorney fees making my case my appealing to attorneys to take.
To summarize – a copyright is a right in an authored work that is put into some type of tangible form (a book, a photo, a video, a website). You get a copyright in the authored work as soon as you put it into tangible form – you do not need to register it to have a copyright. However, you may want to register it as it may be difficult to prove the work is yours (even if you send yourself a “Poor man’s copyright version”) if you do not register it and registration gives you rights to additional damages.
If you have questions about whether a work you have created has a copyright on it or whether you should register the copyright, contact your Denver business attorney, Elizabeth Lewis today at 720-258-6647 or Elizabeth.Lewis at eclewis.com.
There are multiple events coming up this month that me, your Denver business lawyer, will be at that may be of interest to you:
June 4, I will be at the UnJob Fair at Colorado Free University. I will be presenting on legal issues for small business owners as part of this information-packed day.
June 7, I will be presenting my first Brown Bag for the Denver Small Business Development Center on online liability issues for small businesses.
June 11, I will be presenting on online liability issues when blogging for B4W4.
June 15, I will be presenting employment law issues at Front Range Community College.
June 17, I will be the featured speaker at the Social Media Meetup.
For more information about any of the above, or if you need help with your small business, please email me, your Denver business attorney, at elizabeth.lewis at eclewis.com!
In an interesting case, a small business owner has been found guilty of sending threatening communications, mail fraud, and wire fraud. Digital Life is reporting that Vitaly Borker pleaded guilty to harassing customers in email, including threatening to come to their houses to assault them if they complained about his business. In an interesting side note, Digital Life also says that when customers complained on other sites, it drove Borker’s website higher in the Google rankings. However, that is probably little consolation now that he is facing six years in prison.
The lesson from this case – be careful what you say in emails to your customers! If you have questions about making sure you are legally okay online, contact your Denver business attorney today at 720-258-6647!
In recent news, Arkansas is yet another state that has passed the so-called “Amazon Tax”. In addition, Connecticut and Hawaii are both looking at similar laws. As many of my readers know, this tax makes companies that use affiliate marketers liable for collecting sales tax in the state. As it stands now, most online retailers who do not have a place of business in the state (other than affiliate marketers) do not collect sales tax. Last year, a similar bill killed the affiliate marketing business in Colorado.
What is now also being reported is that one of the bigger sponsors for the so-called Amazon Tax is another large company – Walmart. As Walmart has retail stores in almost every state, it collects sales tax from those who purchase online. This puts it, and stores such as Target, K-Mart, and Best Buy, at a disadvantage over Amazon and Overstock.com as the latter do not collect sales tax.
Although Amazon, Overstock, and other online-only companies have attempted to stop such measures, it appears that the number of states looking to tax online is growing and growing. Eventually, it appears that even online companies will have to collect taxes.
As always, if you are a small business with questions about whether you are doing business correctly, you can reach me at 720-258-6647 or firstname.lastname@example.org.
As many people remember, especially those that use to be Amazon affiliate marketers, last year Colorado passed a tax that in essence stated that is a company had affiliate marketers in Colorado, it had nexus to Colorado and had to collect sales tax on behalf of Colorado. While we were not the only ones to do so (Ohio and Rhode Island have similar provisions), we did suffer the consequences. Within a day of passage, Amazon pulled all its contracts with affiliate marketers and the state failed to collect any additional taxes but did lose the taxes that those affiliate marketers paid.
However, in recent news, Illinois is now looking to pass similar legislation. While obviously they won’t be the first to do so, because of the size of the state it may have a greater impact than the law did in someplace like Rhode Island or even Colorado. We will have to wait and see if this is the beginning of a landslide to try to tax online sales throughout the county.
In other news, the Associated Press has an article that Washington D.C. is suing sites such as Expedia and Orbitz for not remitting enough in hotel taxes for hotel rooms purchased online. This appears to have more weight to it than the online sales of goods as both Expedia and Orbitz appear to be accepting the tax from the Enduser but not paying it to the state. Again, this is something to watch to see what happens!
Hopefully this is a question that you never have to ask. However, if you have a profile that violates Facebook’s Terms of Service, this may be a question that you will be faced with if you don’t change your ways!
At a recent event I was at regarding online marketing, the speaker mentioned that the way their company helps people be found on Facebook by using the profile name to mention the business or service. For instance, instead of being “Elizabeth Lewis” on Facebook, they suggested being “Elizabeth Lewis (first name) Business Attorney (last name)” or simply “Business Attorney”.
This got me thinking on two issues. First, in the Facebook terms of service, it clearly states that a profile must be linked to a person and that the person’s profile name must be their true name. For me to use “Business Attorney” as my name violates the terms of service. Now, several years ago prior to there being Business Pages on Facebook, Facebook may have looked the other way and not done anything about these misused profiles. Unfortunately, they do not anymore. Stories have come out about businesses that have had hundreds, if not thousands of friends, who suddenly have their profile deleted due to the violation of the Terms of Service. All of a sudden a site that helped the business make money is gone.
So, how do you ensure your page isn’t deleted if the profile is a business’s name? First, you can change the profile name to someone in the business so that the account now belongs to a real person. Next, set up a business page and ask the people on the profile page to friend you there. And, maintain both pages – people buy products and services from people, not from businesses. A short post about why the name is being changed and who the person behind the profile is can go a long way to having great customer relations.
Now, for the more bothersome issue. From the discussion, the speaker at this event knew what they were doing violated the terms of service and knew that a company that did this risked having their page (that they paid good money to have done for them) removed by Facebook. I wonder, did they tell their clients this risk? Did they tell their clients that other sites like Google and Yahoo tend to disfavor these “black hat” SEO practices? Did they mention that by doing things like this, their sites may be put into a black hole never to be found by search engines again? Picking a social media/SEO company to work with is like picking anything else. Make sure you ask questions about what they are doing and become an informed consumer by reading sites Terms of Service to make sure you aren’t in violation as it is your page – and not theirs – that will suffer the consequences.
For more information about online marketing, please read through the rest of the posts or sign up for a class I teach on the issue! As with all the information on this site, it is for informational purposes only and is not meant to create an attorney-client relationship nor is it meant to be legal advice.