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Law and Ethics ofFood Blogging

International Food Blogger ConferenceSeattle, August 27-29

Barnaby DorfmanFounder & CEO

barnaby@foodista.com

I’m Not a LawyerThe following is based on my personal research and

experience over many years of managing intellectual property on the Web.

If you need a formal legal opinion, ask a lawyer, like these guys.

Basic Flavors of Intellectual Property Protection

• Patents• Trademarks

• Copyrights

• Trade secrets

Copyrights

• You do not need to register with the Copyright office to get protection

• You do need to publish to gain protection– “A work is considered published when the author makes

it available to the public on an unrestricted basis.”• The work must be original• You cannot copyright facts• You can copyright a unique collection of facts, e.g. a

cookbook• For works published after 1977, the copyright lasts

for the life of the author plus 70 years

Recipe Copyright Protections Are Limited

Mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection. However, when a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection. -US Copyright Office

Fair UseThe fair use of a copyrighted work, including such use by reproduction in copies …for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.

-US Copyright Office

Factors to Consider Could be Fair Use Get Permission

Purpose of Work Noncommercial, Educational, Scholarly Commercial

Type of Work Facts, Public Information Creative Work

Portion of Work Used Small passage Whole Section

Distribution Small Audience Large Audience

Your Profit None to Little $$$

• A doctrine and a defense, but not a specific law• Can be hard to determine what is “Fair Use,” ways to think about it:

When in doubt, get permission!

Licenses You Give on the WebWhen You post information, text, images, video, files, links, software, or other materials ("Content") to the Site, You are granting Foodista, or warranting that the owner of such Content has expressly granted Foodista, a royalty-free, perpetual, irrevocable, fully sub-licensable, non-exclusive right to use, reproduce, modify, translate, adapt, publish, create derivative works therefrom transmit, distribute, perform, display and delete such Content (in whole or in part) worldwide and/or to incorporate such Content in other works in any form, media or technology now known or hereafter developed.

Short version: You still own your copyright, but you also give away a full set of rights.

Creative Commons, Copyleft, Open Source

A standard set of licenses designed to protect the freedom of information & author rights.– http://creativecommons.org/– http://www.flickr.com/creativecommons/AttributionYou let others copy, distribute, display, and perform your copyrighted work - and derivative works based upon it - but only if they give you credit. NoncommercialYou let others copy, distribute, display, and perform your work - and derivative works based upon it - but for noncommercial purposes only. No Derivative WorksYou let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. Share AlikeYou allow others to distribute derivative works only under a license identical to the license that governs your work.