Kudos to Levi Strauss for its Goodwill campaign

Most PR campaigns we hear about are big ones that involve lots of money and great hopes for visibility. Problem is, a lot of them are basically PR for PR's sake and don't really make much difference in the grand picture, at least, certainly not for us normal folk that aren't in the business.

That's why I was so impressed when I heard about the latest campaign from Levi Strauss & Co. (ya know, the jeans folk), the "care tag for our planet". Next time you buy a pair of Levi's jeans (well, depending on how quickly it spreads through their channels), your tag might well look like this:

Can you see the bottom lines? It's "DONATE TO GOODWILL WHEN NO LONGER NEEDED AND CARE FOR OUR PLANET".

The campaign is managed by Denver-based PR agency Johnston-Wells and they told me that "the goal of the tag program is not only to divert billions of pounds of unwanted clothing from landfills each year by giving them new use through donations, but also to help those who need affordable, gently used clothing or the services Goodwill provides from the revenue raised at its retail stores."

Next time your jeans are worn out or have mysteriously shrunk to the point where they don't comfortably fit, have a look at the tag, it might just encourage you to drop 'em off at the local Goodwill box.

Are guest blog entries "works for hire"?

I've been working on writer's guidelines for my Ask Dave Taylor blog and wanted to include some wording about my requirement that the rights to an article transfer to me when submitted. Why? Because I wanted to ensure that there'd never be any issues of our relationship going sour and them then insisting I pull the article and any references. Quite unlikely, but it's always good to cover your proverbial bases.

Here's the wording I was going to use:

Anything I get from you is considered a legal work for hire submission under prevailing US copyright law, which means that you give up ownership of the article, you don't retain copyright, and if we have a falling out down the road (which I, of course, hope doesn't happen) that the article remains my property and I can choose to leave it on the site. If you want to retain copyright, be able to publish it elsewhere, whatever, no worries, glad we hit this now: you won't be able to write for my site and I wish you terrific luck wherever you do end up publishing online. No hard feelings at all.

I twittered about it and got a comment back from Ben Oelsner, an intellectual property attorney with Kendall, Koenig & Oelsner PC telling me to be careful because work for hire is primarily intended only for employees, not contractors.

I asked him for more details, and here's what he generously explained:

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If you are hiring non-employee contractors to create copyrightable content for you, or you are accepting content contributions from individuals who are not employed by you, and you want to own such content, it is a good idea to require that the content creator assign all of his or her rights in such content to you, in addition to or instead of relying on "work for hire" concepts. Under copyright law, the author of the work owns that work and has rights to which an author is entitled. If a work is considered a work made for hire, there will be an effect on the term of the copyright and the ability of the owner to terminate copyright rights.

Although the general rule is that the person who creates a work is the author of that work, there is an exception to this principle for works called "works made for hire." If a work is "made for hire," the employer, and not the employee, is considered the author.
Section 101(1) of the Copyright Act expressly defines a "work made for hire" as a work prepared by an employee within the scope of his or her employment, so, if an individual is considered employee under copyright law, the employer will be the "author" of the work and therefore, the employer will own all of the copyright rights in the work and be entitled to the rights of authors under copyright law.

If an individual who is not considered an employee under copyright law creates a copyrightable work, that individual will be considered the author of the work and, therefore, the owner of that work. However, if that individual is hired to create the work or content contributions created by that individual are accepted online, under Section 101(2) of the Copyright Act, there is an exception this author principle that can make a copyrightable work created by a non-employee a "work made for hire." A non-employee created work can only be a work made for hire if both of the following two conditions are met. First, there needs to be a written agreement signed by both parties that states that the parties expressly agree that the work shall be considered a work made for hire. Second, the work must specially commissioned for use within specified categories. These categories are described in Section 101(2) as follows: "a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."

If you can't make a strong argument that the created content falls within the categories described above, that content should not be considered a work made for hire under copyright law. If it's not a work made for hire by law, you, the person that hired the individual to create the work, won't be the "author" of the work, and therefore, you won't own the work.

What should you do to make sure you own the work? For any non-employee created work, you should have the author agree to assign all of his or her rights in the work created to you. You won't be the "author" for copyright purposes, but you will own all of the copyright rights in the work. A typical assignment provision may look like this:
You agree that all content that you provide to me will be my sole and exclusive property. You hereby irrevocably and unconditionally assigns to me all right, title, and interest worldwide in and to such content and all intellectual property rights to such content.
There are other terms that should be included in any copyright assignment, so you should contact your attorney for assistance in drafting any such agreement.

You will often see a "work made for hire" provision included in agreements with non-employee contractors. It should not be used in place of an assignment provision, but it can be used in addition to an assignment provision as a "belt and suspenders" option. However, if the contractor is an individual, it is possible that characterizing content as a work made for hire could have adverse consequences for you because it is possible that the contractor may be characterized as an employee for purposes of unemployment insurance and workers' compensation obligations (as a result of the relationship being treated as an employer-employee relationship). You and your attorney should analyze and determine the risk of including work made for hire language in any contract that you have with an individual.

See Circular 9 [PDF] on the Copyright Office web site for more information.

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The key thing that jumped out at me when I got this explanation from Ben was this line: the contractor may be characterized as an employee for purposes of unemployment insurance and workers' compensation obligations. That would be a very bad unintended consequence!

So instead I've been working on creating a content submission agreement that's focused on granting a license that offers the protections I seek. When I've nailed down the wording, I'll add it to this blog posting, but in the meantime, if you're considering hiring people to write for your blog or other site and have been categorizing them as works for hire, this should give you pause.

And thanks again to Ben Oelsner of Kendall, Koenig & Oelsner PC for his invaluable insight into this nuanced situation.

How does a blogging business work?

I received a query from a grad student who, as part of an assignment, is analyzing my Ask Dave Taylor blog as a business. Interesting timing as I just went and talked at The University of Colorado, Boulder's School of Journalism about the business of blogging (see A Class of Future Journalists and Only One Blogs? and especially the scathing debate in the comments).

I thought that my response might be of interest to others, so I'm publishing it here too...

Hi Dave. I am currently taking Blogging 2.0 at [[major university]] and need to research Business Blogs. I am doing my "analysis of a Blog" on your blog and wanted to ask you two questions and have them answered by tomorrow midday if possible. (My assignment is due tomorrow evening.)

Great. I look forward to reading your assignment when you're done. Hopefully you'll have some insight and suggestions on ways I can improve things!

First, It seems like you do quite a bit of advertising for different companies. Is it free or are you compensated?

All advertising involves a financial relationship, whether it's free products for ads or money changing hands. Most all of my ads are through an advertising network run by Google called AdSense. You can learn more about it at http://www.google.com/adsense if you'd like.

Other ads are typically performance based: I don't get paid to run the ad, but if someone clicks on it and buys the merchant's product, I receive a small commission on the sale.

My blog Ask Dave Taylor is a business venture: I have put thousands of hours of my time into creating and maintaining the site and it's supported by advertising and adjunct revenue sources. It pays my mortgage and lets me feed my kids, so that's all good.

Secondly, If I were to consider advertising on my blog what would be the best and easiest way to start. (The blog was also created for school but I'd like to continue after the class ends.

The first thing to realize is that it's really darn hard to earn more than a few dollars/month on a blog. You have to work at it for years, produce good content, and write about something interesting to an audience that is also likely to buy related products or services. In other words, if your blog is "money saving tips" it's not going to make as much off ad revenue as "best high-end fashion purses". Make sense?

Having said that, I am a big fan of AdSense, as mentioned earlier. If you have good content and put the ads front and center, hopefully you can make a bit of money and get enthused to push further.

Good luck!

A class of CU journalism seniors, and only one was blogging?

I had an opportunity this morning to speak to a class of graduating seniors at the University of Colorado, Boulder, specifically the rather dryly named "JOUR 4321: Media Institutions & Economics".

My topics: Are bloggers a meaningful part of the journalism landscape and how do bloggers make money blogging? I came prepared to discuss both topics, based on advance input and what I think are topics that should be important to students about to be pushed out into the bleak, unforgiving world of modern journalism.

I didn't expect a particularly warm welcome from the School of Journalism and Mass Communication, though, because as I have learned from a number of students and community members, many people in the department are convinced that they're the last bastion of true journalism and that the entire online world is worthless and that we're going to hell in a handbasket as democracy dies in lockstep with journalism dying.

The first question I had for the class, about 25 students, mixed male/female, was "how many of you have a blog?" One gal bravely raised her hand. "Okay, how many of you have a blog or write "Notes" on Facebook or otherwise write with some frequency?" Two hands went up. That's it. I was pretty darn surprised, needless to say. Journalism and mass communications students who aren't writers? And they're worried that us forward-thinking geeks are poisoning the well?

Then their instructor, Professor Dean Colby, jumped into the fray, positing that traditional, mainstream media is the heart of all journalism and that online bloggers "just aggregate but ultimately point back to traditional journalists". His position, as far as I could tell, is that since bloggers and online commentators don't have traditional journalistic training they have to piggyback on those that do, the New York Times, Wall Street Journal, BusinessWeek, and so on.

"Did you read the article in yesterday's New York Times about mom bloggers?" I asked. He hadn't, but two students had (extra points for them!) "That's the opposite of what you're talking about: that's a mainstream media piece written by a blogger likely without any journalistic training."

"Ah, okay, but all bloggers are commentators, not reporters." I got in response.

Okay, I can go down this rabbit hole, with some glee, truth be told, it's a favorite topic of mine and I've explored it from stage more than once...

"So can I debunk a popular myth of journalism? There is no such thing as objectivity. All journalists, all publications, all media is biased. Don't believe me? Compare the headlines in different papers for the exact same story. You can instantly see their bias. Or compare how two writers can "objectively" report on an event differently. Word choice, phrasing, how quotes are assembled, it all contributes."

And so it went. We talked about how CNN is a bastion of journalism, except it now also relies on iReport reporters who don't have any formal training, just a camera and access, and we did talk about how bloggers make money through advertising, sponsorships, and affiliate programs, using Dr. Colby's fave site Denver Stiffs (a sports site) as an example.

Ultimately, it was an interesting conversation, but it's been a while since I felt like I was in the position of defending what I see as the natural evolution of media and journalism. As I feared, my impression of the School of Journalism and Mass Communication remains that it's a dinosaur howling at the impending climate change, it's King Canute standing on the beach, commanding "Ocean, be thou still! I bid thee come not nearer to my feet!" even as the waves implacably roll in.

The world of information dissemination is evolving before our eyes, going from four channels of television to hundreds to thousands, from one or two major newspapers per community to dozens, and from mainstream outlets to everything being an outlet. Journalism is surely just as much about speed of dissemination as it is digging up the muck (a relatively modern invention in the journalistic world, btw), so Twitter users breaking the news of the Chilean earthquake way before any news outlets do is a harbinger of the future, not a change to be feared.

My thoughts to the students in the class are twofold. First, things change. Deal with it or be obsolete. The market determines what's important, not your professors. Second, writers write. You should be writing every single day, even if it's restaurant reviews or letters to your favorite pals. It's a muscle, exercise it and you'll thrive in a changing world of information.

And finally, to the department, this sea change in the world of news, journalism and information dissemination is way too big to deny and fear. Embrace it. Jump into the pool and see what happens. Otherwise you're failing at the core mission of the School of Journalism: to produce journalists ready for the modern world and what will come tomorrow.

Pre-Ordering an Apple iPad: The Visual Tour

I don't know what it is about Apple products that makes me just whip out my credit card, but damned if I don't have one of each, even to the laptops. I think the only product that I've resisted is the Apple TV and that's only because it doesn't play Hulu content. When I started reading - and hearing - about the new Apple iPad, well, heck, yeah, I wanted one. I think it's a revolutionary device (as I've talked about on the Boulder Open Podcast that I co-host) and, of course, I want to write about how to do things with the iPad on my Ask Dave Taylor.com site too.

But that's just an excuse. I just want one. :-)

So when I learned that pre-orders for the new iPad were going to happen at 5.30am PST on March 12, 2010, I dutifully set the alarm on my Apple iPhone to wake up at 6.25am MST and try to get to the head of the line. After all, it wouldn't be cool if my friends had one and I was still on the $#@$&# waiting list, would it?

I fired up Twitter, so I could watch the iPad chatter, and went to the Apple Store, where I got to see this:

Then, at precisely 6.30am, I saw a tweet that "Pre-orders have begun!! Whoohoo!" and refreshed one more time:

Well, heck, it's so early I'm a bit groggy, but I think I know what I want! Click on the "pre-order" button and:

Lots of options. Since I have a Verizon mifi unit, I have always just been interested in the Wi-fi version: I don't want to pay yet another cell bill to get data access through yet another device anyway. Size? Well, the smallest is inevitably going to be too small once I drop some films and my music and photo library on it (not to mention a ton of games!), and my iPhone is 16GB so... coin flip... a 32GB unit sounds nice. That's what I order.

A surprising number of accessories are included, notably a dock and a cable that lets you get VGA out of the iPad (what, no HDMI? No DVI? Interesting), but after a moments thought, I decide that the accessories will be easy to acquire later and skip 'em all on my pre-order.

$599 for the privilege of being an early adopter? Suuurrreeee....

Add $45.89 in Colorado sales tax and $12.00 shipping to get it a wee bit early and I click on the "Place Order Now" button.

Fingers crossed, hoping the Apple Store doesn't glitch, and ...

YES! SCORE!!!

Now the almost impossible wait for the product to actually ship and arrive.

Man, I am such a fanboy. But I admit it, and that's part of the solution, right? :-)

Subscribe to the Wall Street Journal online?

I still have a graphical advert on my site for the Wall Street Journal online, and this very article is rather an advertorial about why you should subscribe to a publication that has two million readers -- a million of them online -- but I can't help but ponder whether or not traditional media is still relevant in the Internet age. I mean, why pay to subscribe to a newspaper when you can just check Google News or subscribe to twenty or thirty of the top business and media blogs?

The answer is obvious if you spend a few minutes reading the WSJ and comparing it to other news sources: for breaking news, social media totally rocks. Twitter lets me know about things sometimes hours before mainstream media picks up on the story, but once it has broken, once there is important and often complicated news to report, in my experience it's up to professional journalists to dig up all the facts, gain access to interview the key players, and create a context and backstory that helps me understand the full issue, not just the knee-jerk punditry of the social media world.

In fact, if I may make a sweeping generalization, most online news seems to be focused almost exclusively on the "what" of the story, without ever digging into "why" or "who". Makes for a soundbite world that is entertaining, but ultimately leaves us in the dark.

So if you are interested in solid, professional, Pulitzer-prize winning journalism, I suggest you give the Wall Street Journal a shot. An online subscription is $1.99/week. That's, what, 33% of a tall latte?

Here's a link to sign up for your trial subscription: Sign up for the WSJ at a discount.

Braindead Affiliate Tax Lands, Amazon Cuts Me Off

Here in Colorado we've been battling a greedy bill from the state legislation that sought to tax all affiliate transactions by establishing a "nexus" for tax with any company that had any affiliate that sold more than $100 from that state. Effectively it would mean that all but the most unsuccessful of affiliate programs would then require those merchants to not only pay Colorado state tax on all transactions, but figure out that tax on a per city/county basis. From what I've heard, that's over 400 tax zones in the state.

We fought it, I wrote letters to my representatives, and many of my friends camped out and testified in hearings, but it was obvious from their reports back to me that the zeal to raise money through closing a perceived tax "loophole" was greater than their interest in hearing how affilate merchants would leave the state, effectively meaning that there'd be no revenue and we affiliates would be screwed in the process.

The bill passed in a modified form, but Amazon.com's Affiliate team still thinks it's too onerous and as of today my account is shut down with them for the foreseeable future. Here's the email I -- and may other Coloradans -- received:

In a nutshell, Amazon believes that the sales tax isn't that onerous (indeed, the rise of Internet commerce has drastically affected tax revenue on transactions, as I have written about before) but that having to worry about hundreds of different taxation zones, and being potentially audited by any and all of these zones, is ridiculous.

Really, it's something that we need to address on a Federal level. We need a Federal online sales tax that is then distributed through some sort of formula so that it's easy to compute, easy to distribute, and helps alleviate the tax burden that brick and mortar stores face in an increasingly digital age.

Until then, well, Governor Ritter, I sure don't appreciate losing a revenue stream because of short-sighted greed in the legislature. I encourage you and the rest of the Colorado legislatures to reconsider the issue of implementing HB-1193 and tweak it before more and more affiliates drop us hard-working small businesses or we are forced to change our corporate headquarters to be in another state that is more Internet business friendly.