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....