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Ownership Effects of Co-Blogging

Now that we’ve examined the possible legal liabilities faced by co-bloggers, let’s look at the implications for ownership.

Copyright

Bloggers typically produce a variety of copyrightable works. A blog’s core assets are its individual postings, which are copyrightable so long as they are "original works of authorship." [42] The standard for originality is low, [43] so most individual blog posts should qualify for copyright protection. The rare exceptions may include blog posts that contain only trivial original expression, such as a one-sentence blog post with a third-party link, or republication of someone else’s content.

A blog may generate other copyrightable material in addition to individual posts, including the entire collection of blog posts and reader comments, which may be a collective work; the blog’s organizational structure (its "taxonomy"); [44] and the blog’s "look and feel," which also may be protectable as trade dress or a trademark.

Initially, copyright ownership of all blog-associated copyrightable material rests with the author. [45] Presumptively, then, a blogger owns each item of content he or she authored—such as individual blog posts—and can decide to withdraw his or her content from subsequent publication. For example, if co-bloggers separate, default rules should permit the departing blogger to extract his or her posts from the blog’s database of posts—effectively blocking continued publication of the blog in toto.

However, a blogger’s default "blocking" rights don’t apply in a number of circumstances:

  • The parties may expressly agree to a copyright license or an assignment of copyright ownership. [46] Alternatively, a court may find an implied license permitting the blog to continue republishing the content.
  • A co-blogger could claim that the blog was a collective work and that each blog post was a contribution to the collective work. In that case, the co-blogger could continue to publish a departing co-blogger’s content as part of the blog or a revision to that blog. [47]
  • If a blogger was an employee and was blogging in the course of the employment, the employer-blogger would automatically own the employee-blogger’s copyrights when created. In this case, the employer-blogger can continue publishing the content without restriction upon the employee-blogger’s departure. Indeed, because ownership transfer occurs automatically, the employee-blogger would not retain the rights to republish the content elsewhere.
  • The bloggers could be deemed joint copyright owners if (a) their work is deemed a joint work, or (b) the bloggers are in a general partnership and their work is deemed partnership property. [48] In either case, the parties would jointly and equally own the content, even if they didn’t contribute equally to the work’s creation. [49] Each blogger would have a nonexclusive right to publish jointly owned works—and to allow others to do so—even after termination of the co-blogging arrangement, subject to an obligation to account for any revenues the blogger generates from the work’s continuing use.

This discussion illustrates that bloggers face several unexpected copyright ownership traps. For example, bloggers might assume that they have complete control over their postings, but this control may be circumscribed when bloggers are employees or contribute to a collective work. If a blogger is deemed an employee, the blogger retains no copyright interests at all.

Domain Names and Trademarks

A blog’s name, domain name, and logo may be protected by trademark law [50] if they (a) are used in commerce in connection with the sale of goods and services, and (b) are distinctive—or, if descriptive, acquire enough recognition that the name or logo is uniquely associated with the blog (in other words, derive "secondary meaning").

Whether a word or symbol may be protected as a trademark is a fact-specific inquiry, but two general observations are appropriate:

  • Blogs that generate revenue presumptively should satisfy the "use in commerce" standard. [51] The converse proposition—no revenue, no use in commerce—may hold true as well. [52]
  • Blog names are often descriptive [53] and thus cannot be protected as trademarks until they achieve secondary meaning. Based on the foregoing principles, some popular blog names and domain names may not be protected as a trademark yet—or ever.

When they split up, it’s almost inevitable that bloggers will fight over the blog’s domain name and trademarks, for several predictable reasons:

  • People become emotionally attached to brands.
  • In some cases, a blog’s brand becomes an extension of the blogger’s identity. Indeed, in some cases, the blog’s brand may be more widely known than the names of the blog’s individual contributors.
  • The blog’s domain name may have significant and immediately recognizable value [54] due to its ongoing monetizable traffic, both from existing readers and from search engine referrals. [55]

If bloggers have been using the blog name or domain name in commerce (such that the names may qualify for trademark protection), the associated commercial activity may support the imposition of an implied general partnership. In that case, the trademarks and domain name will be allocated according to standard partnership-dissolution procedures. If some blogger-partners want to keep using the trademarks, they may be required to buy out the interests of departing bloggers.

Alternatively, if the bloggers are in an employment relationship, the employer would own all rights to the domain name and trademarks, and a departing blogger-employee wouldn’t have any rights in either.

If bloggers haven’t used the domain name, blog name, or logos in commerce, these assets won’t be deemed trademarks, and the parties probably won’t have an implied general partnership such that the partnership allocation procedures apply. As a result, it’s unclear what legal doctrines will be used to resolve any disputes over these assets. [56] Fortunately, litigation over such domain names, blog names, or logos should be relatively rare; this would occur only when bloggers haven’t commercialized these assets, yet still think that they are valuable enough to litigate.

Advertising Revenue

Revenue-generating blogs may have accumulated cash or accounts receivable. If co-bloggers are partners, they’re entitled to equal shares of these proceeds after liabilities are settled. Alternatively, co-bloggers who are employees or independent contractors of an employer-blogger will not be entitled to any share of the proceeds.

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