Whose Blog Is It Anyway?

My blogging buddy, Chuck Newton recently posted on the latest  brawl between Greatest American Lawyer and his former firm.  Seems that GAL’s firm is suing him a second time, this time for rights to GAL’s blogs, which the firm claims it would have developed itself. Newton doesn’t think the firm’s suit against GAL will fly, in large part because GAL has been blogging anonymously and that his blog was essentially personal.  But as Newton points out, and I agree, the case raises the significant question, that GAL analyzes about who owns the rights to your blog.  And if today’s trends of law firm to blogging to solo practice or law firm to blogging to book or online magazine deal continue, the issue of blog ownership matters more than ever.

GAL suggests some guidelines for determining ownership.  They include:

1. Did your company provide support for your blogging?
2. Did they pay for the software or server space?
3. Did they allow you to blog and provide resources for you to do so?
4. Did they have an email or blogging policy that claimed ownership rights?

In GAL’s case the answer is no, and that seems to have been the case with the bloggers described here and here.  But moving forward, associates who hope to use blogs to establish a national reputation while working at a firm must keep in mind what rights they can keep to the blogs if they move to another firm.  In particular, you need to examine whether blogging on company time and having a firm supported blog site is worth it, because of the limitations those benefits may place on future portability.  At the same time, expect firms to recognize this trend and start cracking down, requiring associates to blog through the firm and subjecting posts to firm review, so that the firm can claim equal rights to the works developed.  Already, many firms don’t credit associates for their work on law firm blogs, presumably to retain rights to those blogs even where associates jump ship.

I think that GAL’s test for blogging ownership makes sense.  However, even where an associate blogs on a law firm blog, I would think that they’d have rights to continue to link to those posts, just as an author of a written or online article can continue to link to it.  The value there is that even if associates leave a firm and start a new blog, they could link to their former posts, and jump start some search engine visibility for the new one.

Right now, existing ethics rules on leaving a firm (described briefly here and here) don’t discuss blogging rights.  I expect those rules to change, soon, hopefully in a manner that doesn’t restrict employed lawyer-bloggers from capitalizing on their blogs after they leave their existing employers.