Blog Comments – who owns the copyrights to them?

First off, this is not a post about roleplaying games (my usual fare). This is a post about blogging, specifically blog comments and who owns them.

Who owns the copyrights to comments left on blogs?

The comment author?

The blog author or owner?

You see, I’m currently working on publishing an anthology of roleplaying game blog posts from 2008 and before. The project, called Open Game Table, has been a labor of love for me and (much to my surprise) has benefited greatly from an overwhelming number of supporters and volunteers from the RPG blogosphere. The 48 blog posts that have been selected to be included in the anthology were selected from over 130 posts that were nominated by blog authors and readers. I’m now in the process of doing the layout, design, and editing of the anthology’s manuscript and recently the subject of blog comments and who owns their copyrights came up. Two of the contributing blog authors expressed concerns over my use of selected comments in the anthology without the expressed consent of the comment authors. To be completely honest, this struck me by surprise as I had assumed that the blog comments were considered part of the blog article itself (much like an addendum) and were therefor the property of the blog owner. Thus, I had assumed that by obtaining permissions to publish the blog articles in the anthology from the blog authors this would in turn include the comments as well.

Not so fast.

It turns out there is very little in the way of legal precident for this. Go ahead and Google it. You see a whole lot of talk talk talk by blogs cut from all different cloths; but very little actual legal precedent. There’s one case I know of that involved a MySpace blogger who refused to remove comments from their blog when the comment authors requested it. But that’s about it.

Of course, standard US copyright law clearly supports the author in that [paraphrasing here] “as soon as you write it down it is copyrighted”. This would lead you to believe that the author of the comments owns the comments, even though they appear on some other medium they do not own. Some would say it is fairly cut and dry. Others say that its not so simple.

But do they own their comments after they are published?

The comment authors have no control over them, since the blog owner can often delete, edit or otherwise suppress any comment left on their blog. Furthermore, things become much more complicated if you consider third-party applications that republish weblog comments, such as Twitter, Friend-Feed, Google Reader iPage, etc. Disqus does a good job of summing up the real issues here.

This becomes even more bizarre when you consider that many bloggers are running advertising on their websites that is context sensitive (such as Google AdSense; which is in place on this blog). If someone else’s comments are helping generate the ads that appear on a blog due to their content, but that person is the owner of those comments, not the blogger, then shouldn’t they be also entitled to some royalties or payments from the sale of ads? Surely not.

Where then do you draw the line?

What about then the situation with the anthology I am publishing. Each and every one of the blog authors have signed permissions agreements that stipulate that I have the right to republish their blog post in a printed book. Should I also then seek the permissions of each and every blog comment author whose comment (that adds value to the article as a whole) I may also want to include? What if the comment author used a fake email address or was simply anonymous? What if they were under the age of consent (18)?

These are all issues that bloggers should consider. Many bloggers outside our little RPG blogging community have already considered these issues. You will often find, especially on commercial blogs, a Terms of Service agreement that clearly stipulates the status of the comments left on the blog. I have added one to The Core Mechanic as a result of this minor brouhaha and you can find it in the footer below, or on the comment page. Section 5, Information Rights is the part you will want to pay attention to. I’ve provided here as well:

5. Information Rights. The Proprietor does not claim ownership of Content you submit or make available for inclusion on the Service. However, with respect to Content you submit or make available for inclusion on the Service, including without limitation comments you post to the Service, you grant the Proprietor world-wide, perpetual, irrevocable, royalty free, non-exclusive, fully sub-licensable license(s) to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed.”

This basically means that the blog owner (“The Proprietor”) can do whatever they wish with the comments left on the blog; and the author of the comments can as well. The copyright is, however, still technically owned by author. I’ve since seen some other blog TOS’s where the comments fall under a Creative Commons license; still others I’ve seen where the comments are released into the public domain.

I would urge anyone who is writing a blog of their own to consider this issue of comment ownership and permissions; if only for a moment. You may never know when, in retrospect, you had wished you had a Comment Policy or some other TOS agreement in place. I’m not a lawyer, and after reading several dozen blogs and other websites about the copyright status of blog comments, one thing is clear to me: this is a very grey area that I have no interest trotting in … I tend to think that blog comments are functionally the same as addendums to the main blog post and the comment author is giving up their control of the content once they post it on the blog owner’s site. But, that’s just my opinion – and with regards to Open Game Table – I’m not interested in putting everyone involved in the project at risk of some sort of infringement of copyright permissions simply because I wanted to include a selected number of comments in the Anthology.

In the meantime, I’ve stripped the manuscript for the blog anthology of all comments for the time being. I’m perfectly happy publishing the book without them included, although I do recognize that blog comments are our currency and often times it is the comments that “make a post”, not the post itself. Bahh….

16 thoughts on “Blog Comments – who owns the copyrights to them?

  1. First, this is all just my understanding of the situation, however:

    1) The copyright law is governed by the location of the blog owner. If the blog owner lives in Russia, then Russian law governs. If the lives in a state with a law more restrictive than the general US law, then that is in force. The precedence for this is that forum rules, laws and ownership are governed this way as are most websites.

    2) Alot depends on the individual blog. Again taking forums as an example, several have the following notice as part of their terms of service “In posting on the forum, you will have accepted the terms that this type of publication implies. In posting you are accepting that your content will be published by the site owner, and also that the site owner has the right to edit or delete your post as he sees fit.”

    So, ask the blog owner, who owns the copyright? What are their terms of service? Do they even have any?

  2. From what I understand the comment’s author already gave you some rights when he posted on the boards. It’s up to blog’s owner to decide if a comment gets shown on the blog or not and you may make changes if the comment violates your policies. As blogger you are even forced to do so if the comment violates any law (at least this is the case in Germany).
    And as long as we are staying in the electronic world things stay pretty easy. You think a comment is worth to be quoted in another article and the comment’s author objects? Just remove the offending article again, and in most cases everything is fine. But in the case of the RPG Blog Anthology things are a bit different. Print is a very different medium and when there are copyright disputes it can get quite messy. In the worst case you will lose quite some money and you’ll have to destroy all copies of the book. And all that because of a single comment.
    Usually I would propose we just ask all comment authors to give their ok to have their comments printed. But this makes things exceptionally complicated. So in the end, I think some TOS like you proposed will be the way to go.

  3. More research:

    If the blog is hosted on WordPress, this is from their section on comments:

    By submitting Content to Automattic for inclusion on your Website, you grant Automattic a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your blog. If you delete Content, Automattic will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.

    So, check the TOS for the host, too. In the case of WordPress hosted blogs with no other TOS, the comment is copywrite by the original author.

  4. @ Viriatha

    My understanding is that the location of the server as well as the writer comes into play.

    Honestly, unless you are actually publishing things for commercial gain you don’t need to worry about it. Even then, stick a CC licence on your blog and you’ll be fine.
    If you were inspired to paint a picture of a women after you saw the Mona Lisa, the Louvre couldn’t realistically sue you. Same applies here.

    In fact, for that matter since we all constantly base material off works by WOTC, Chaosium, Palladium (and lets not forget that old standby Tolkien) I think we’re all being a little bit paranoid.

  5. @Hammer – Even a CC might not cover you unless you state that even the comments are governed by the CC. Are we getting worked up over nothing? Maybe, but with some real world legal cases out there, something as simple as putting a simple TOS on your site seems like a small price to pay for peace of mind.

    I should let people know that I’m currently looking into the CC. There were several understandable (in retrospect) objections to the TOS that I originally posted. I’ve removed the objectionable language and am reviewing to see if the CC is the right thing for me. (I’m currently leaning that way, but I want to be sure before I make another mistake)

  6. Hey all! thanks for chiming in! My blogging frequency has been so low lately that I’m happy to see people are still reading it!

    My main concern is really about using published comments from a blog for republication in a book. Without a TOS, does the blogger have the authority to “sub license” the comments to the Anthologist (me)? Would republishing these comments be considered “fair use”? I mean… i could see qouting a paragraph or two from the DMG or PHB for the purposes of a blog’s article (which is in the Anthology) would fall under fair use; but in that case you are using a few words out of tens of thousands. A blog comment i usually short, say 200 words. Could you use the whole thing under Fair Use? How about half of it? Would that be within the boundaries of Fair Use? How much writing does someone have to write for it to become a real issue? What if someone writes a short comment, like “I CAN HAS XMAS!!!”; is that short phrase copyrighted?

    @Anonymous : Thanks for the link! Although I was unable to find any reference to his comment policy. It seems that all the comments that are being included in the book are being done under the assumption that he has the right to republish them in a book. Of course, as an Anthologist I’m republishing someone else’s blog’s comments – so its a bit different. I should also note that no one on his site seemed to have any issue with him using their comments, paraphrased or not, in his book. I guess math people are less paranoid than me.

    Thanks for the good discussion of the issues here.

  7. I just left a longish e-mail in your box, hoping to drive others to the blog post and encourage discussion on the google group.

    It occurs after re-reading the post though, that if a blog service provides similar terms in their TOS agreement, the final say on republishing content (all content) is left with the blog owner, since the “sub-licens[ure]” clause is included.

    One thing I forgot to mention in the e-mail as well is that many times, submitting something to a public medium creates many such agreements as you’ve cited in your post (info rights). If you didn’t want your comments to be used, you shouldn’t have made them public.

    I keep a notebook full of comments and thoughts that I don’t care to leave on blogs. Some of those turn into my own blog posts, which grants me copyright. I’d certainly be upset if someone used those without my permission, but public comments? Surely not.

    Something else – I read a circular (I believe number 66) from the patent office that stated online databases that face revision may be registered in the 3-month blocks, avoiding having to register every single update (blogs run on databases). So, basically, anything older than three months isn’t register-able and doesn’t receive the benefits of registration, viz. public proof of copyright ownership, and could be safely appropriated.

    I mean, the work you’re attempting to republish is produced by authors of varying means and desire to pursue litigation. It’s a risk, but a calculable one, to include the content in an anthology.

    It also occurs to me (gosh, I have to stop thinking) that the Internet Archive makes daily archives of pages. So a permanent record of a comment may exist on the Internet long after a blog is dead. Is that any different than printing an Anthology? I think it’s quite similar… nearly exactly so. The Internet Archives are reproductions of work for the purpose of archival, which adds another dimension to consider when pondering copyright.

  8. @JEFF – just finished reading your post to Open Game Table’s forum… VERY NICE indeed. thank you for the analysis, and I’m going to stay the course and not publish the comments at this time. (see my reply there for more).

    here’s a link to the OGT post

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