Is everything on the Internet up for grabs?

ON BLOGS

Ideas

January 06, 2008|By ANDREW RATNER

If you put your private life on a blog for the world to see, how much of it still belongs to you?

It's a question that engrosses legal thinkers, ethicists - and especially lately a self-described "mommy blogger" from Baltimore's Lauraville neighborhood named Tracey Gaughran-Perez.

Her husband was watching a football game on Fox a couple of Sundays back when a dog in a Santa suit in a network promotion struck him as strangely familiar.

That's because, the couple concluded, it was their dog. Gaughran-Perez, 37, said she had earlier posted a photo of their pug, Truman, in costume on her blog, sweetney.com.

"It took another appearance of Hijacked Truman on Fox's broadcast to convince Jamie," she wrote on her blog, referring to her husband. "Always the eternal doubter and naysayer, it wasn't until FOX threw up on the screen a second, much larger version of the same photo, and I stood beside the television with my laptop in hand pointing studiously to my original photo and then to the nicked one on the television, that he became a believer."

The matter involves a goofy photo of an adorable dog, but the issue is a weighty one in the digital age: When does something you've created - a photo, a video, a piece of writing - qualify as protected intellectual property, especially when something is so easily grasped in cyberspace?

It's a conflict that has made occasional headlines, including the controversial celebrity blogger Perez Hilton and John Fitzgerald Page, whose conceited rant on a dating site that he intended to be private instead turned him into fodder for wide public embarrassment and ridicule last month. The continuing writers' strike has also centered on compensation for material that appears online.

"If they took the picture from her site without permission, it's infringement," opined Frank Pasquale, a law professor at Seton Hall University who specializes in intellectual property matters.

Lou D'Ermilio, senior vice president of media relations for Fox Sports, said last week that he hadn't been aware of the allegation, but after looking into it, he acknowledged Thursday that the network had erred in using the photo as it did during its Dec. 23 broadcast of an NFL game between the Philadelphia Eagles and the New Orleans Saints.

"It appears on that particular Sunday, they were preparing holiday greetings that included photos of the guys on the crew and they matched those up with holiday photos, one of which was apparently the photo in question. It was as innocent as that," D'Ermilio said.

"If we violated anyone's rights, we're very sorry," he said, referring to Gaughran-Perez. "If she would like to discuss it with us, she can give me a call and I can put her in touch with the correct department. I'm sure we'll be able to reach an accord."

The 1976 copyright act protects images or words put to paper or another medium as copyrighted work. If the work is registered within 90 days of publication, the author can sue for statutory damages up to $150,000 per infringement. If not, they can still sue for actual damages and attorneys' fees.

Proving damage in this case could be tricky. Gaughran-Perez's blog got a jolt in traffic, from about 8,000 daily views to 110,000, after the Truman row was described on the popular blog site boingboing.net. Someone might even argue it benefited her blog - and its advertising revenue.

Gaughran-Perez said it wasn't the most disconcerting case of someone appropriating her material on the Internet. That occurred a year ago when someone copied an online photo of her then 4-year-old daughter and doctored it up, perhaps part of some nasty squabble. The incident unsettled her enough that she made her phone number unlisted, switched her online photo storage to a more private setting and got a generic post office box for mail.

"This time doesn't faze me as much as the previous episode involving my daughter. That made me realize how much of the world was looking in on my life," said Gaughran-Perez, who also blogs at mamapop.com. "It's sort of disturbing when someone reaches in and takes. ... It's very weird."

Her writing about the Truman matter on her blog elicited scores of comments that split mainly into two camps:

Sue the media conglomerate for all it's worth.

When people expose their lives in an online diary, they get what they deserve, and should be gratified to have their dog on TV for free.

"If Fox had come to me at the beginning and asked and said, `We'll give you attribution, even for half a second,' I might have said, `OK, cool,' but it's this sense that they don't have to ask," said Gaughran-Perez, who said she'd be satisfied to get an apology from Fox and the going rate for what it pays someone for an on-air graphic. "It's not about trying to make a lot of money off of them. It's a precedent."

J.D. Lasica, a social media expert in San Francisco and author of Darknet: Hollywood's War Against the Digital Generation, said the issue has reared up a few times recently, including the case of a Texas family who sued after discovering their teenager's picture on a Virgin Mobile billboard from a photo they'd put on a shared media Web site called Creative Commons. But in this new age of new media, only the tip of the iceberg has been exposed, he said.

"Just because something is on the Internet doesn't mean it's up for grabs. Fox needs to send this woman a check," Lasica said, after seeing the ad that paired the pug with a Fox TV crew member who many observers thought resembled the Fox commentator Bill O'Reilly. "It's almost as if your pet is being injected into a political scenario. And I don't know what the dog's politics are."

andrew.ratner@baltsun.com

Andrew Ratner, a former technology reporter, is Today editor of The Sun.

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