“Can I get sued for blogging?” is a question that sometimes comes up in our office, and we are always amazed at the wide variety of beliefs we encounter. The answer is absolutely YES. Let’s discuss a few ways you can get sued with our imaginary blogger named “Matt” who writes blogs about “Baseball.”
1. Copyright Infringement. Matt is an expert on baseball, and writes blogs about specific games, players, statistics, you name it. Often times, Matt includes pictures of the player in the blog post so his readers can see the player hustling down the line or goofing off in the clubhouse. Matt gets these photos from Google Images, where he types the player’s name in, and finds a photo he likes. What’s the problem? Copyright infringement. Matt is engaging in the unauthorized reproduction of an image he does not own. Matt gets sued by the photographer (or other owner), and responds to the photographer, “I am not making any money off using your photo, my website is free, but I will take it down, I did not intend to infringe your copyright.” Is Matt safe? NO. It does not matter if he knew he was violating copyright laws or that he made no money off of his use of the photograph. If you use it, you are a violator! This is no different than putting a song on your website that you don’t own and letting others download it.
2. Libel, Slander, and Defamation. Matt is a huge Miami Marlins fan, and he hates the Atlanta Braves as their main division rival. Matt decides he really hates the Braves star second baseman, and writes this blistering 20 page blog making up an elaborate story discussing about the multitude of steroids the Braves player has injected with used needles behind the Atlanta Aquarium. The blog entry goes viral on twitter, and pretty soon reputable news outlets start reporting on steroid acquisition from “unidentified sources.” Needless to say, the Braves player’s reputation is severely damaged and he brings a lawsuit against Matt alleging libel (libel is written defamation, spoken defamation is called slander). Could Matt be found to be responsible for damaging the Braves second baseman’s reputation. ABSOLUTELY! There are a variety of things the Braves player would have to prove, such as Matt knowing his statement was false, the statement was made publicly, the statement was made with intent to harm, and the Braves player did in fact suffer an injury as a result, but just because Matt is not a “journalist” and is still not making any money off the site, Matt could still be found liable! The short answer, do not say false things to harm another’s reputation!
3. Trademark. Matt’s blog is entitled “The Major League Baseball Hustle All-Stars Blog,” where there are logos of Major League Baseball all over his site, as well as individual teams logos captured in the various images of players. There are multiple potential trademark claims here. The first is the easy one, trademark infringement or false designation of origin, which are two different claims but as this is a quick analysis will treat as one. Matt is using the name, logo, and symbols of someone else business organization (Major League Baseball, individual teams) in promoting his own site (this could also be copyright infringement if the art of the logo is copyrighted!). Consumers looking at Matt’s blog might be confused as to the origin of the blog (is it authorized by Major League Baseball?) since the blog is titled under the Major League Baseball name and uses multiple images of Major League Baseball in the site design. Matt is clearly infringing on Major League Baseball’s trademark in this example through use of Major League Baseball’s images and is likely causing confusion as to the origin of the blog. The second avenue, is trademark dilution. The short analysis of trademark dilution is, the owner of a famous trademark (such as Major League Baseball, this analysis would not apply to Mom and Pop’s corner store) can allege another’s use of their trademark lessens the uniqueness of the famous trademark, hurting the overall brand of the famous trademark. In our case, it is arguable that a consumer would find Matt’s blog confusing with one authorized by Major League Baseball or a specific team, but in certain factually scenarios where Matt’s blog looks very authentic, Matt could have dilution issues before him.
Overall, do not copy others images and pictures or say false and defaming things about an individual and you should be ok. In fact, you might even have a SLAPP counter claim which is the subject of a future blog!
Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A.