Blog Law – True Story: A Bigger Blogger Took My Recipe

Cookie Jar

Today I came across a series of tweets about a food blogger who was upset that another blogger took her photo and recipe, reproduced it on her site while providing a credit and link back in smaller text but also tagged the original blogger on Facebook.

Earlier in the week, Confessions of a Cookbook Queen posted a photo and recipe for Shamrock Mint Oreos. Although unclear because there is no copyright notice, I’m taking her word that the image is hers. As such, it is protected by copyright and any use of it on the other website is clearly a violation of copyright. The law does not require a copyright notice, but it does help to let people know you own it.

The issue actually is a bit more complicated regarding the photo because on the photo, Cookbook Queen uses a registered trademark, Oreo. Kraft is the owner of the registered trademark for the word Oreo as it pertains to cookies, and in fact that trademark has been registered since 1913. So we have a photo of homemade sandwich cookies in the style of what an Oreo would look like with the word Oreo on the photo. This brings up the issue of Trademark Infringement.

Is the original photo infringing on the right of Kraft’s exclusive use of the word Oreo as pertaining to this type of sandwich style cookie? The result is that even though Confessions of a Cookbook Queen may have a copyright on the photo in question, it does contain a potentially infringing use of a registered trademark. That, however, does not mean the other blog can take the copyrighted image, whether giving a link back or not.

Now, let’s get to the recipe part. I’ve discussed Recipe Copyright before and mentioned that ingredient lists are not protected by copyright. So let’s look at the directions. Are they sufficiently original to be considered substantial literary expression? There is some argument the directions could rise to that level, because there is a mention of specific dimensions and cutter. Although I don’t think it’s a strong position, there is some argument that there could be a copyright claim.

While I did not discuss this in my prior post, here we have an example of what could be a derivative work. In the United States, the Copyright Act defines “derivative work” in 17 U.S.C. § 101

A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

The original blog says she adapted the recipe. That would mean she used a pre-existing work. Is that pre-existing work subject to copyright? I don’t know about the specific recipe. Although, the cookbook from which it came certainly is.

If the prior recipe was not copyrightable, the new work would not be copyrightable to the extent the directions are the same or similar. To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Without seeing the original recipe, I can not say for certain but with only a few special aspects to the directions claiming copyright would be a very difficult argument to make.

In this particular instance, it is clear the copyright claim would be tenuous at best. And if the recipe is not subject to copyright, there is little if any protection against someone taking it and using. The issue of plagiarism doesn’t come in to play because the second blog actually credited the recipe both in the post and by tagging in Facebook. The credit was provided, as Cookbook Queen mentioned, although in a smaller font and not quite as obvious and maybe it could have been.

So what to do when there is likely no copyright claim for the recipe, nor was there plagiarism? There is still the issue of the copyright for the photo, for which that alone Cookbook Queen could ask that the image not be used without whatever attribution she wishes, if she so wishes to even permit use of her photo. It is, after all, her copyrighted image. The issue of the use of a trademark would be handled separately by the trademark holder.

When excluding the copyright issue of the photo, this situation likely comes down to ethics, standards and best practices. Obviously Cookbook Queen did not like her recipe being taken by this ‘bigger blogger’ and she asked that there be better attribution. It appears that bigger blogger was not happy and has since taken down the post and put up an explanation post. Bigger blogger likely did not appreciate getting an email from a ‘smaller blogger’ asking for better attribution.

This situation clearly demonstrates the differences of what the standards and best practices are among bloggers. When there is no law to lean on, all we have is our ethics and standards and any best practices that are out there. Clearly, bigger blogger and Cookbook Queen do not see eye to eye on these. But what it comes down to is that if you’re so in love with someone’s work, copyrighted or not, send your readers to them.

Your readers go to your blog because they love you and appreciate all that you share. They’re not going to abandon you. And if you’re a bigger blog, showcasing smaller bloggers is terrific. Why, though, use a smaller font to tell your readers how to find the original post? And why do a cut and paste job instead of just sending your readers to the other blog?

Maybe it’s not illegal to have taken Cookbook Queen’s recipe, but it’s definitely not cool!

What are your thoughts? Do you think ‘bigger blogger’ did anything wrong? Did Cookbook Queen over-react? How would you have handled this?

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

Sara

What To Do When Your Online Content Is Copied

What to do when someone steal your online content

If you went to Blissdom and attended the Ignorance Is Not Bliss ‘Lawsome’ panel, then you had the fun of a sing-a-long. Sure, there were technical difficulties but everyone was a great sport and sang along to my new words to YMCA as they applied to the law and blogging. That all stemmed from a guest post I wrote about blog copying.

When I was in law school learning about copyright and intellectual property, I had a very heavy laptop computer. Copying music meant making a mixed tape if you had a dual cassette tape or if you were lucky enough to have a CD/Cassette tape player you could record your CD. But music copying wasn’t all that easy, although it was done. Copying off the internet was done, but only by ‘hackers’ or ‘bad guys’. The internet existed but not anything like we know it today.

In the years since, I’ve spent plenty of time online. My first website was created in 1993. By today’s standards a 6 month old child could probably do better that what I’d done. Over the past 14 years, I’ve learned about the legal rights that grow with each of these platforms. Remember Napster? It wasn’t a problem until artists realized they were getting ripped off. Gone were the days of recording music on a crappy cassette from the radio or your own boombox or relying on your friends to let you borrow their album. No longer are we relegated to having to use an electric typewriter or mimeograph machine to plagiarise.

Now, with the click of a mouse or touchpad anyone in any corner of the world can copy what you do and wholesale pawn it off as their own (plagiarism, at minimum). There isn’t much effort needed to steal not only words but also all the effort and ownership that goes with those words. And with enough know-how, people are creating bots and spiders to automate the copying process.

The written word has long been protected by copyright. And for well over 100 years, the US has recognized ownership of a person’s written work. Bloggers words are protected by copyright. And you don’t have to put a disclaimer on every page or any fancy wording. From the moment you hit publish, on works that are sufficiently original and meet the necessary requirements, you have a copyright. Plain and simple. Just because it’s on the internet doesn’t mean it’s in the public domain.

It’s not a laughing matter either. Many bloggers, big and small, have been copied. Copying a small blogger may seem like no big deal, arguing that they don’t have many readers. But what one may define as a small or less influential blogger is irrelevant. Copyright does not have as a defense ‘but I’m bigger than them’ or ‘but I’m smaller and not many people read it’.

What do you do if your work has been copied? Besides wanting to find the person and flame them openly on twitter . Or write a ranting post and hope they copy it and look ever more foolish. Or get all your friends in social media to give them a digital beat down.

Following are steps you can take if

your blog or website has been copied

1. Verify the copying – scan for duplication using a service like Copyscape. I don’t suggest doing a right-click and cutting and pasting the post from their page. If it is an image, be absolutely sure that it is your image. Verifying is usually pretty easy.

2. Document the copying – screen cap the offending material, print it out, PDF it. Whatever you do, get a copy of the material and make sure it is date/time stamped so you can further authenticate if the situation escalates. The goal here is to have proof that their material came AFTER yours. Do not rely solely on posting times. There are ways to make it appear that a post was made prior to when it really was. Be aware of this as it may come up.

3. If this is the first time this person has copied your post or image, send a nice email. You can often get some form of contact information on their site. If it’s a legitimate site there will be a way to contact them, even if it’s an embedded  contact form. It’s better if you can get an actual email so you have record of the contact. But, if the only way is to use a built-in form then use that. You should also check out domain registrars to determine if there is an email contact available. Use a site such as Who Is to find out who owns a domain. What do you say? (A) Identify the post in question both on your site and theirs. (B) State you have a copyright and ask them to do whatever it is you want such as take it down, link back, edit, etc. (C) Give them at least 24 hours and verify that whatever you asked to be done is done (D) Tell them how to contact you.

4. For repeat offenders or those who did not respond to the previous nice email, you’ll need to escalate your response. This is where you get to send the “Cease and Desist” letter (or email). A “Cease and Desist” letter is a formal legal document telling the copyright violator to take down the offending material or risk further legal action. These SHOULD NOT be sent without getting legal advice, even if it’s a call to your brother’s neighbor’s son’s soccer coach who is an attorney. Get professional advice! The Cease and Desist letter/email should be copied to the domain registrar, host and the major search engines’ legal departments. Each of these entities will have something on their websites telling you where to direct legal notices.

5. If nice didn’t work and ‘guess you didn’t think I was serious’ didn’t get any result, the big guns come out. With this, GET A LAWYER or DMCA Specialist! You will need to file what is known as a DMCA Complaint. See Google DMCA Complaint information. Digital Millennium Copyright Act (DMCA) is part of the US Copyright laws and specifically addresses copyright as it applies to the internet. The penalties for misuse of the DMCA Complaint are significant, so if you’re at this point because your blog is being copied and it’s causing you irreparable harm and loss of income then spend a few (hundred) bucks and get someone to do this who knows what they are doing. If the offender is found to have violated your copyright, the rewards can be significant.

6. Copyright laws and the DMCA do not require you to take any interim steps to have your copyrighted works taken down from any site that is violating your copyright. I suggest sending an email and a Cease and Desist out of courtesy, not because it is required by law. I do not always send them, depending on the circumstances. Then again, I am a lawyer and I have experience with this. I am not suggesting you resort to going straight to a DMCA Complaint, nor am I saying that you have to wait it out.

Copyright infringement of blog material is becoming more and more prevalent. It bothers me both as a blogger and as a lawyer because the topics you can write on are seemingly endless. Diana Adams of both Bit Rebels and Ink Rebels has even done the work for you in her post 100 Sources of Blogging Inspiration.

Copying someone else’s material says a lot about you as a person. Not only does it diminish SEO (Search Engine Optimization) for both sites, it speaks volumes to PR professionals and other bloggers. I understand that mistakes happen. New bloggers don’t always know the rules. Seasoned bloggers may not realize you shouldn’t do something like this. But if you make a mistake, apologize and take down the post. Don’t get up in arms, badmouth the blogger you copied or do anything public that you will likely regret later. The blogoshpere will rally around the injured. Believe me on that one!

You may also be interested in reading:

Know Your Digital Rights – Blog Etiquette

Know Your Digital Rights – Recipe Copyright

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

photo credit: Horia Varlan used under Creative Commons, text added by Sara Hawkins

Sara