Disclosure and copyright strikes in Blogging?

Once in a blue moon, I will see a blogger with some legal issues and I’ve realized that there are many conversations about the tricky laws that bind us as a form of content creators. Just because you’re not selling anything doesn’t mean the rules don’t apply…But it kind of does.

Now, my blog is not very big and it’s also non commercial. I don’t make any money off it in any way. Not even pennies. This gives me a bit of leeway although not tons. This is why I decided it was time to get a better idea.

idea-anime-lightbulb

cause knowledge is power!

In the era of “content” creators, copyright and advertisement disclosure laws have suddenly become much more important than they ever were before. It’s an interesting phenomenon, if your definition of interesting is the evolution of small stakes white collar legislation. Both notions have been around for some time, but while disclosure regulations are fairly established and clear, copyright law is up for interpretation and essentially still being written. Moreover, both change with jurisdiction.

 

Most blogs can’t really compare with the popularity of online video or even audio platforms which is why for the most part, people tend to leave us alone. But you will occasionally see blogs get in trouble over the use of images or even get hit with plagiarism claims.

This can get very tricky. Copyright is one of the oldest forms of intellectual property and it tends to be much less formal than things like trademarks or patents or even trade secrets. It’s the only one that isn’t directly tied to sales so it makes its application wide ranging and it doesn’t require any paperwork or registration to take effect. The very basic idea is that any first creator of an artistic work** (there’s a legal definition for artistic which also changes slightly depending where you’re from) owns the copyright of that work. That’s it. The artists themselves. They can choose to sell, license or assign that copyright (it’s often a standard contract) temporarily or permanently to a company. However at the base, the copyright always belongs to the individual creator by default.

Bakuman

that’s a good thing

Images in anime belong to the individual animators. Most likely their contracts transfer that copyright to the studio they work for but in all likelihood they are not sold to specific distributors such as networks or streaming platforms. They may have exclusive distribution rights over the anime but owning the copyright of every individual image would cost a fortune. Or at least should. This is pure speculation, I have never even seen a standard anime distribution contract, it’s just the general idea of what copyright is. And just because someone is not the copyright holder, doesn’t mean they don’t have rights over the material.

And that’s part of the issue. We hear about fair use a lot. The basic idea that if the original work is used in a way that is transformative, then it’s a new work and belongs to the new artist. For a long time copyright didn’t apply to works that were considered parodies, criticism or tribute. But that’s also up for interpretation and what constitutes transformative work is very debatable.

At the core, the idea of copyright is meant to encourage artists to create by giving them some degree of ownership over their work. So discouraging painters from drawing gorgeous versions of their favourite characters, or authored from crafting new stories in their favourite universes is a touch counterproductive. Moreover, copyright infringement is an enforceable right. The owner of the copyright doesn’t have to enforce it if they don’t want to and as such, unless people are doing something that an artist considers would hurt their brand, they will often be quite happy for the free publicity. Publicity is expensive folks! And suing your own fans is rarely a great PR move.

So generally speaking, smaller review blogs rarely get much hassle with copyright claims. I guess if you went completely nuts with the screencaps…cough….

Konosuba innocent whistle

what’s that over there?

By the way, giving proper credit may protect you from plagiarism but it really doesn’t do much in copyright claims. However, if you go with the argument that you’re providing free publicity, people have to know what you’re advertising. This is my segway paragraph into disclosure. Smooth right?

Another legal concept bloggers should be aware of, even though it’s almost never enforced, is duty of disclosure.

We mostly hear about it in relation to sponsored content. Platforms like YouTube which have much more aggressive marketing guidelines, have clear disclosure rules determining when and what must be shared with your public. Even though WordPress is much more hands off with blog content doesn’t mean the same rules don’t apply.These are once again different from country to country and probably won’t be that relevant to your experience, unless you want to go pro with your actual blog. In which case I would recommend doing a bit of research to make sure you’re compliant.

It’s usually pretty easy to comply with regulations. If you have the default “ads active on your blog, those are already properly identified as such without you needing to do anything else. Likewise, you don’t need to mention affiliated links, unless you also actively advertise the service or product in your content. Usually, the big grey zone is content.

If you have an affiliate link with a company, every time you mention that company in a post, it has to be made clear that you stand to profit from sales made by that company. You are not a disinterested party. In most places, a simple mention anywhere on the post that you’re affiliated with the company is all it takes. You don’t have to make a big deal about it.

However, if you are compensated for a post, whether it’s a review, an essay, a random top 5 list, you have to disclose it. Even if you are negative towards the product. And compensation can be money, or anything with a monetary value (merch, manga, a free subscription or even advertising for you or your blog on a different site). This is a straight forward proposal, most anibloggers I’ve seen are great about it, including an actual paragraph in their posts explaining how they got something for free or how a company reached out. In most places, the rule of thumb is that you need to “make it clear” that you got something in exchange for your post if you’re publishing on your own. No hiding the mention in the footnotes. But otherwise, you can generally handle it whichever way you like.

It’s really important to note that even if a posts bashes a product in a way that the creator would never call “advertising”, the connection to the product still has to be made clear to the audience.

gun gail

I don’t know – I thought this image would illustrate over explaining something…

The real issues rise up when companies try to get around disclosure or candour requirements by giving people “gifts”. They will send out “or” or review samples without asking for anything at all in return. At this point rules really vary. What if you post a cosplay tutorial with a picture showing the makeup you use but without talking about brands or preferences at all in your article, and one of the lipsticks was something you got in pr? What if you’re reviewing one anime series and compare it to another one that you only saw because it was sent to you by the distributor. Well, I don’t know.

At this point the rules get pretty tricky and depend on a lot of factors. One is your intended audience. When you have reason to believe a lot of young children will be reading your posts, the rules are stricter. Jurisdictions also have a wide range of restrictions when it comes to these grey zones. Companies prefer that disclosure be minimal but it’s not really up to them. This can create uncomfortable pressure on the little guy. This is why having a good idea of which rules apply to you is useful.

Like I said, for most of us, these general notions will not be all that useful. This said, there’s nothing to loose by being informed and having just a baseline of what copyright is and how disclosure can be used, will help you figure out how to handle your blog should it get to that point.

I hope  I didn’t bore you too much. These are subjects that interest me but few other people. I know I tend to go overboard with them.

Holding breath Rini

Irina

I'm much nicer than I seem, we should be friends!

11 Responses

  1. I was pretty paranoid about copyright claims and stuff and did a bunch of research about the topic before I even posted a single article on my blog because as the job description of an otaku blogger dictates, we use a lot of potentially problematic material like cover art and screen shots. It’s pretty rare that anybody actually causes any sort of legal trouble though.

    For me, it’s a pretty easy thing to claim most of my content under fair use as review material or free advertising for the manga or discussion for educational purposes. I haven’t faced any legal problem yet, and that is because the companies which generally hold the copyright to the cover art and other miscellanea I use are japanese companies, and they tend to not exactly monitor the copyrights and stuff. It really helps that most of my content is based on manga and light novels rather than anime, because most of the ones I cover are pretty niche and don’t have an official english version. Also, no onetary gain of any kind from the blog, so copyright claims can’t be made on the claims that I am diverting profit from the original owner(which is also compounded by the fact that most manga have fan translations online).

    It’s also easy because I don’t live in a country with a huge otaku presence like the US or Canada or parts of Europe or Japan itself.

    • Irina says:

      Actually you can be diverting profits even if you’re not making any yourself. That’s in fact one of the complications of copyright and IP in general. But that’s another question. Reviews are definetly fair use everywhere.

  2. crazyidiot78 says:

    Great post on a relevant topic, (at least for me), I’ve done 1 sponsored post so far and I was very clear about it. I do worry about copyright because it’s hard to find creative commons images for some of the science topics I talk about.

  3. David Boone (moonhawk81) says:

    Funny, the concept of intellectual property came up in my recent review of Blackfox (as part of the storyline, that is!). . .I work for a research institution, and so had to sign the whole “we own everything” package–if I ever make an interesting pattern in my tissue when I blow my nose, my employer can basically seize it and claim it as their own. *So what does that about my blog that they’ve never bothered?

  4. I actually thought this was gonna be about people possibly stealing content from smaller blogs like us and republishing it in big sites as their own. Probably one of my biggest fears (especially when I saw an Anzu Hinamatsuri article show up a day after I made mine and used very similar pics). Thankfully, our articles were different enough in focus, but man was that scary.

  5. AK says:

    You’re right that even bloggers and other creators who make no money off their work (like me!) stand to have problems with copyright and disclosure if we’re not careful. There’s a common misconception that profit motive is the main factor in considering what is and isn’t fair use, which isn’t true, at least in the US — it’s just one of several.

    • Irina says:

      Not to mention that even if you don’t make a profit doesn’t mean you’re not affecting soneone else’s profit…

  6. Cytrus says:

    “nothing to loose” -> “nothing to lose”

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