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Legal Characterizations of Co-Blogging

Co-blogging arrangements may fit within one of four principal legal doctrines, as shown in the following table.

Relationship

Liability

Asset Ownership

Partnership

Partners personally liable for acts of other partners

Assets and liabilities divided among all partners on dissolution

Employment

Employer vicariously liable for employee’s acts within employment scope

Employer automatically owns all copyrights created by employee within employment scope

Joint authors

N/A

Parties co-own copyrights, subject to accounting duty

Independent contractors

Generally no liability for other bloggers’ activities

Each party owns assets he or she creates

Let’s look at some of the details of how the law regards these various arrangements.

Partnership

A general partnership is "an association of two or more persons to carry on as co-owners of a business for profit" [9] and can be formed expressly or impliedly. General partners may be personally liable for partnership obligations, including the acts of other partners in furtherance of the partnership. [10] Upon the partnership’s dissolution, partnership assets and liabilities are divided among all partners.

Many blogs don’t generate revenues of any kind and therefore may not qualify as a "business for profit." In these situations, it’s unlikely that co-bloggers would be characterized as "partners" in an implied "general partnership."

In contrast, if a blog generates revenues—such as through advertising—it’s very possible that joint or group bloggers (in the absence of some other agreement or arrangement) will be deemed to be in an implied general partnership. [11] However, guest bloggers may not be deemed partners of that partnership because they may lack the requisite intent or permanence to be "carrying on" together.

Employment

Bloggers could be in an employment relationship. In general, an employment relationship exists when the hiring party has the "right to control the manner and means by which the product is accomplished," [12] determined via multifactor tests that differ based on the applicable legal regulation. The Internal Revenue Service, for example, uses a 20-factor test to determine employment for tax purposes. [13]

An employment relationship might exist when a co-blogger or a group of co-bloggers has principal responsibility for the blog’s operations (thus constituting the "employer") and other co-bloggers are asked to perform specific tasks (thus becoming the "employees"). Depending on the facts, guest bloggers also could be employees.

In an employment relationship, the employer is vicariously liable for the employee’s acts within the scope of employment. Employers also can be liable for employees’ acts under other doctrines, such as the negligent supervision doctrine. The employer would automatically own all copyrights created by the employee within the scope of employment. [14] Among other duties, a blogger-employer could be required to pay minimum wages to the blogger-employees, withhold taxes and issue W-2 forms, and pay unemployment insurance.

Joint Works

Copyright law defines a "joint work" as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." [15] In rare cases, each individual blog post is an interdependent component of the whole blog. In that case, the blog and all individual posts may be a "joint work," and the bloggers would be coauthors of that joint work.

In most cases, however, blog posts are neither inseparable nor interdependent. As a result, blogs are more likely to be characterized as "collective works" [16] rather than "joint works." [17]

If bloggers are deemed authors of a joint work, the bloggers co-own the work [18] and have a duty to account to their co-owners for any proceeds from the work. [19] Joint-work status should not affect a blogger’s liability for other bloggers’ postings or actions.

Independent Contractors

If co-bloggers don’t fit into the prior three categories, they’re probably independent contractors. In that case, they retain ownership of any assets they create, and ordinarily (subject to numerous exclusions) they’re not liable for each other’s acts.

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