Voila! My Certificate of Registration for my blog content!
Some people say it can’t be done—registering the copyright in a blog. It can, if you understand the quirks of the US Copyright Office.
I explained those quirks in September 2014 when Nina Amir asked me to write a post about protecting website and blog content. See, How to Protect Your Blog Content.
In that post, I explained that there are a few tricks to registering web content. Without knowing these tricks, you are likely to run into a bureaucratic brick wall.
First, a little refresher about copyright. You do not need to register a copyright for it to be valid. You can send a DMCA takedown notice without registering your work. But registration gives you additional legal remedies in the event your work is infringed. For more about copyrights, see my post 11 Things Every Writer Should Know About Copyright.
Trick 1: The Copyright Office Considers Web Content to be Unpublished.
This surprised me. I spent a good 45 minutes discussing it with a senior registration specialist at the Copyright Office. But as of late 2014, the Copyright Office was still using a definition of “published” that dates back to the disco era, the 1980s. To them, “published” means the distribution of tangible material, typically printed.
Obviously, this is confusing to those of us living in the 21st Century. After all, nothing is more widely distributed than web content. When you upload posts through WordPress or Blogger, you click Publish. But as far as the Copyright Office is concerned, web content is a display, not a publication.
This position does not hurt you. Unpublished works get the same protection as published work. Same legal rights, same legal remedies.
Trick 2: Register Your Posts as a Collection of Unpublished Works as a Single Claim
Here’s the benefit of calling your web content unpublished: you may register multiple blog posts under one application (and one fee) as a “collection of unpublished work.” If you tried to register blog posts as published work, you would have to submit a separate application and fee for each post because an application may cover work published in a single day only.
I recommend you register your blog posts at the end of each year, so that all the materials in the application are created in the same year. Some lawyers recommend writers register blog posts every three months, so all posts are registered within three months following their release. That way, if a judge disagrees with the Copyright Office and decides that blogs posts are published, writers get the benefits of prompt registration. The choice is up to you; registering posts every three months is more time and money for more protection, at least theoretically.
On Nina Amir’s blog, I walked through the application form in detail.
On the day you submit the online application, go to your online blog and print out all the blog posts you are registering. Yes, that may be fifty or a hundred pages. If that is too voluminous, click on Deposit Copy Requirements for alternatives.
Your printed pages must show a date no later than the date of your application. If they show a later date, the Copyright Office may reject your application.
Mail the printed copy of your blog posts with the Shipping Slip to the address on the Shipping Slip. Since it may be 7 to 10 months before you hear from the Copyright Office, you might want to send the copy registered mail, return receipt requested. I have had a deposit lost by the copyright office, so I recommend you retain some evidence of shipping the deposit.
I expect someday the Copyright Office will recognize their definition of published is outdated and confusing, but until then, this process should work for registering your blog posts and website content.
Remember that none of these measures stop theft. There will always be people looking for get something for nothing. But registering your web content will give you additional leverage for stopping infringement and the opportunity to recover monetary damages when it happens.SHARE THIS
Hi! I just wanted to tell you that I’ve listed your very informative and helpful post on my NoteWorthy Reads post for this week (http://jahcmft.blogspot.com/2015/02/noteworthy-reads-4.html)
Love your blog. Intend to spend more time reading it. However, you have made a ludicrous statement. I have no idea how old you are, but possibly in your twenties to be able to say, “dates back to the disco era, the 1980.” I graduated high school in 1981. Not a trace of disco to be seen during the following years.
Obviously, I do not own the copyright to the 1980s and I realize you were attempting humor, but some of us do not wish to be reminded of a very dark period of music history.
LOL, Ben. Okay, disco was more 70’s than 80’s. I was a little behind the times, even back then. But not as far behind as the Copyright Office.
Here are my thoughts on registering your blogs as an un-published (group) work.
“The Copyright Office Considers Web Content to be Unpublished.”
As noted by your chat with a senior registration specialist, creative content appearing on-line is likely deemed to be an un-published work, if the use of the work is for display purposes ONLY (the work is NOT being sold, licensed, made into additional copies, or distributed; kind of like hanging a painting on a wall, just to display to others).
However, if an on-line work of authorship or a blog includes social media “sharing” icons like Facebook, Twitter, Google+, Tumblr, email, etc. adjacent to the work (and the placement of these icons has been authorized by the author), then the work has likely been published: The work/blog has been licensed non-exclusively for third-party non-commercial sharing/distribution/posting via social media, websites, and via email.
At the very bottom of your blogs, the following text appears: “SHARE THIS SITE”, followed by multiple social media sharing thumbnail icons.
Also included at the bottom of your blogs and adjacent to the sharing icons, you include the following text:
These statements sound like you’re encouraging others to share your blogs via email for “further distribution” and granting visitors to your website permission to make one or more “copies” of your blogs.
Put together, all these (inadvertent) actions suggest that your blogs are more likely to be judged as published vs. un-published works. Consequently, I’m feeling your “Blog 2014” un-published registration (TXu001921097) is, perhaps, defective, as it should have been registered as one or more published works of authorship.
Did your visit with the senior registration specialist explore the un-published status of blogs that include social media sharing icons?
Art/Creative, I am reading your post to raise two questions — the effect of permitting others to share and copy my blog on (i) my copyright interest and (ii) the unpublished/published standard for registration purposes.
Yes, I encourage people to share my blog, but that does not mean I have no copyright in my original work. My copyright continues to apply to the material even if I make it available to others, even if I never register the copyright.
If I am sharing my blog material on other social media sites, that is considered a display, just like the original blog post, so it is not “published” according to current practices at the US Copyright Office.
If I put the same material into a downloadable form such as a PDF or downloadable podcast, then I am publishing for purposes of registration. The key issue is whether the material is to be downloaded.
The copyright office defers to the individual registrant to determine whether a blog is published or not. If they review the filing and disagree with the registration, they notify the registrant and permit the application to be amended. That rarely occurs.
At some point, the Copyright Office’s policies will catch up with rest of the world and internet display will be considered publication. That, however, will make registration much more expensive because each post will need to be registered separately (at $35 each), as opposed to batching together months of posts and paying one $55 registration fee.
As for sharing the material on social media
Hi Again Helen–
It looks like the end of your comments got truncated. I’d love to read it.
You wrote, “Yes, I encourage people to share my blog, but that does not mean I have no copyright in my original work. My copyright continues to apply to the material even if I make it available to others, even if I never register the copyright.”
You may have misread my words: I absolutely agree that you retain copyright protection to your blogs, whether un/published, un/registered, licensed, copied, distributed, sold, or otherwise exploited through your exclusive bundle of rights. My bad if my words were not clear.
I’m also aware of the Copyright Office’s position that works posted on-line for display purposes (only) are considered un-published and that the Office relies on the author to determine the publication status of works.
As I wrote previously, I still believe when you “license” content from a blog (with sharing and emailing icons), it’s more likely published vs. un-published–that seems to be the safest route for my workflow and peace of mind. If I’m wrong, Form CA can correct a published work status into an un-published one without affecting the effective date of registration, but not the other way around (I’ll have to file a new registration with a new/later effective date of registration).
If you were to pursue infringement damages against a party who reproduced your blog, say, commercially, I have to believe the opposing counsel would aggressively challenge your (single) un-published blog group registration to quash any ability to pursue enhanced damages and costs.
Reading the Office’s 3rd Compendium edition, there are sections, including this particular one, that causes me to pause about treating blogs as un-published works when copying, emailing, or distributing licenses are expressed or implied:
1008.3(D) Implied Nonexclusive License or Authorization–
A variety of factors may be relevant in determining whether a copyright owner published website content by impliedly authorizing users to make copies of that content. Examples of factors that may be considered include the following:
• Whether there are indications on the website or webpage relevant to the work indicating that the copyright owner intends for the work to be distributed to the user via download, saving, printing, or emailing, such as the presence of a “download,” “save,” or “email” button for a particular work.
• Whether the copyright owner expressly reserved copyright rights in the work or explicitly prohibited the reproduction or distribution of the work in whole or in part.
• Whether the copyright owner employed barriers to the reproduction or distribution of the work, such as technological measures that disable or impair a web browser’s print, copy, and/or save capabilities.
• Whether the copyright owner permitted the work to be streamed or displayed, but did not expressly permit the work to be copied or downloaded.
If I was blogging, I, too, would register blogs as a single group of un-published works; however, I would not post them until the Office had received my application, payment, and deposit. As best I could, I would attempt to write many separate blog entries in advance, group-register them together, and then post/publish them once a week, or whenever. This strategy would provide me with the best protection, as my un-published blogs would really be un-published in everyone’s eyes, and not open to an infringer’s challenge.
Reviewing your posted Certificate of Registration–I would include the following procedure when registering un-published works: Along with the mandatory main registration title, the Office encourages authors to include content titles when registering groups of un-published works. So, if there are eight un-published works/blogs in a single, un-published registration application, then there would be eight individual titles that match the uploaded deposits. These content titles could be the blog entry titles or other keywords/phrases (my procedure is to try and include descriptive titles). The Office has written that by including content titles in un-published works, helps make the registration “bulletproof”.
Importantly, when Orphan Works gets codified, a party will likely be required to search the Office’s on-line database to prove a diligent search. These descriptive keywords, if included in the registration application, can help lead the researcher directly to an author’s registration and contact information.
There may be different ways to timely register creative works; I’m comfortable with my workflow. Still, I’m always eager to learn how you and other IP professionals prepare registrations.
Great post Helen. Was wondering if there was any update to this (if the Copyright office still considers Web content “unpublished”?
Stephen, No updates yet. I’ll check with the Copyright Office after the first of the year for an update.
Hello Helen, I’ve been reading your article and I fell in love with it, it’s great to know that at least there are people ‘fighting’ for bloggers rights and guiding them so that they can protect their online content, I wonder if there are any new updates?
Hi Helen, Are there any updates on the published/unpublished content. My husband’s a photographer and has all of his work registered and has been after me in registering my blog. I’ve put it off long enough and will be working on this this week. Thank you for all the linked help you’ve included in this post.
Lori, No updates. If you run into any problems, contact me through the contact form. Helen
Hey Helen….thanks for the updates…really love this