What Every Webmaster Needs to Know About Copyright Law
What I hope to do, however, is address some of the more commonly asked questions presented in my seminars and consulting sessions.
Before you take a chance you should, of course, check with a real lawyer, preferably one with a specialty in Intellectual Property Law.
- I Didn’t Know It Was Copyrighted. There Wasn’t a Notice or Anything!
- The Copyright Notice is Not Necessary But Still a Good Idea
- You Don’t Have to File a Formal Registration to be Covered! …But …
- All Websites are Fair Game for Linking
- Beware of Hidden Infractions
- About Celebrity Photographs
- Buying It Doesn’t Necessarily Mean You Own It! (Opens In New Window)
- But I’m only using a very small part of the original image…..
- I got the Domain Name first, the Registrar said I could have it and I paid for it — so it’s mine!
- Summary and Resources
- Conditions for Use and Reprint of this Article
The Digital Millennium Copyright Act (85K Adobe Acrobat File) changed copyright in many ways. It put legal strength behind copy-protection systems, even limiting some fair use rights. The DMCA also changed the liability outlook for ISPs in major ways.
“I Didn’t Know It Was Copyrighted. There Wasn’t a Notice or Anything”
Too Bad — Essentially, Everything is Copyrighted!
At least that is the safe assumption to make. The moment anything is placed into a reproducible form, (written down, saved as a file, posted on a blog or scribbled on a napkin,) it becomes copyrighted information under the law.
What that means is that if I scribble a network configuration on a cocktail napkin, hand it to you. You then scan it and put it on a Website, or redraw it and hand the copy to your network consultant. You have just infringed my copyright. Before I could be successful in my suit, however, I have to prove that the material was an original work, and then I have to prove damages.
After a bazillion bucks in legal fees, I could find myself awarded a dollar. If you re-draw it without just tracing it, it might be defensible, but if scanned or otherwise copied, it is an infringement and the damages might not be just a dollar.
The Copyright Notice is Not Absolutely Necessary.
(But it’s still a good idea.)
You no longer need to put the copyright notice on a document for it to be covered. It is, however, a good idea to do so. Doing so properly will greatly enhance your ability to recover damages should litigation become necessary. This is because the infringer will have more trouble pleading ignorance as an innocent infringer.
When you do put the notice on a document, please use the correct format. The symbol is the letter “C” in a circle. Two parentheses won’t do it. Use © and Not (C). The word Copyright, and the year the item was created should also be on the document, along with the phrase “All Rights Reserved.” This gives you additional protections in some international markets which are not members of the “Berne Convention.” At the moment this is Bolivia, Peru and a couple of other South American countries. While not deemed truly necessary, it doesn’t hurt.
This Document Copyright ©2016By
T. S. Eggleston All Rights Reserved
You Don’t Need to File a Formal Registration to be Covered!
(But it’s still a good idea.)
The answer to this is both true and false. Before you can successfully sue for infringement, a formal registration must be submitted. Also, you will usually not recover Punitive Damages and Legal Fees if a formal registration has not been filed.
The I.P. Lawyers Say:
“If you register a work BEFORE the infringement occurs, you are entitled to what are called “statutory damages” which is like punitive damages but no longer called that – since it is up to $100k for each infringement, it is well worth doing, PLUS if it is registered beforehand, you are almost guaranteed attorney fees, which can be considerable in copyright cases. If you register afterwards you only get the damages you can prove, and do not get legal fees. Be careful in the international arena though since under Berne, foreigners may not have to register to protect their works, only to sue for statutory damages and legal fees. As the law changed in 1989, there are lots of interesting variations too complex for here. Short answer , always register, it is cheap at $20 per work and the atty. fee recovery alone has been as high as $350,000 in one case.”
All Websites are Fair Game for Linking
This is true, sort of. There are a couple of interesting cases awaiting judgment or trial now. It’s not THAT you link which will cause a problem, but HOW you do so. If you set your website up with frames, and display an ad in one frame while someone else’s Website is being displayed in the other, the area gets very gray. You are effectively pocketing ad revenue for displaying the work of others. I would not want to be the one on the defendant side of one of these suits, because the resulting page may be considered a “Derivative Work.”
One state recently proposed legislation that would prohibit linking to a website in that state without the written permission of the site owner. This is of course, totally bogus. Attempting to enforce state laws across a global medium like the Internet is virtually (pun intended) impossible. Of course that state could still issue a warrant for your arrest. While this would probably not be enforced outside that state, you might find yourself driving through it one day at an excessive rate of speed. When the friendly constable calls in the traffic stop . . . well, you get the idea.
It is, however, just good Net etiquette, as well as good business to drop the site owner or Webmaster a note, thanking them for their resource. Let them know that you have linked, and mention that a reciprocal link would be appreciated. While I don’t do this with the really big corporations like Microsoft, Hewlett Packard or Kodak, I make it a practice when I link to a small, personal or university site.
Do not put another company’s business name or trademarks inside your web page META tags. Some less than ethical web developers do this in an attempt to fool search engines into finding their site instead of the other one. It is as best unethical, and at worst very illegal – as seen in several rulings, such as Oppedahl & Larson v. Advanced Concepts, et al. For the latest roundup of the usual suspects, see the general roster at Meta Tags Lawsuits. You definitely don’t want to be listed there.
If you have taken, and/or own the copyright to a photograph of a celebrity or other public person you should be aware of the following:
- You may sell photographs you take.
- You may reproduce them on a website.
- The normal laws of libel apply, and the truth is generally a defense.
- UNLESS – the photographs are used commercially to promote or endorse a a product, service or other use in which the subject could reasonably be expected to receive royalties or other consideration.
(The above also applies to photos of ‘anonymous’ people on the street or other settings.)
Special Warning Concerning Concerts and Certain Celebrity Public Events
Many celebrities are cashing in on the value of images of themselves and have taken steps to ensure that they, and not you will profit from them.
If an event requires a ticket, carefully read the fine print. If you have to sign something, read it all! If you pass a big sign on your way in, read it!
You might find a statement that gives the celebrity or management company All Rights to All Photographs taken at the event, or prohibits photography altogether. The Whitney Houston Funeral Photos are an Example.
Remember: In general, celebrities can afford more and better lawyers than you! Be safe, not sorry.
|Legal Use||Improper Use|
|8 x 10 Color Prints of the Pope
and President Carter
( You hold the Copyright )
|“Acme Bleach — for the Whitest
Robes in the Vatican”
Buying It Doesn’t Necessarily Mean You Own It!
Most people think that when you buy something, you own it. This is not always true. Consider the case of an artist who creates ceramic like tiles from commercially available post cards. Even though the post cards were bought and paid for, the copyright owner holds the exclusive right to make derivative works, and those tile like things are just that. Ditto coffee mugs, collages and the like.
This actually gets even more strange as we go on. Say you buy a painting from a local sidewalk artist, who will obviously never amount to much, but you sort of liked it. Once on the wall, you decide it’s just a bit too bright, and should be toned down a bit. Pulling out your handy can of spray stuff, you give it a few coats to soften the colors. While you’re at it, you whip out your brush and add one more tree, making it just perfect for that spot over the sofa. You have just infringed on that artist’s rights by modifying his or her work, an exclusive right belonging to the copyright owner. (the artist) You may not even be permitted to destroy it, since that right may also reside with the originator.
The I.P. Lawyers Say:
“This artists “moral rights” provision applies only to those works that meet certain rules, the most important of which is that there cannot be more than 200 copies of it and usually it has to be a signed work. I would just say that modifying or incorporating anothers work of visual art is not a good idea, either in physical form or in electronic form, which is the real problem these days with photo editors.”
See how strange this stuff can get?
This derivative work section of the law might, (and might is the scary word) be applied to linking through to a graphic on another website, giving it the appearance that it is really on yours. Regardless of how a judge decides, I still would not want to be on the defending end of this one.
But I’m only using a very small part of the original image…
This doesn’t matter one Iota. The law reads “whole, or in part.” In fact, I use this part of the law to save money on copyright filing fees. If I have 10 or 15 images to copyright, I combine them all into a single image and register it as a single work. The work is therefore covered “whole, or in part,” and each image is a part of the whole. Neat huh? (also cheap)
I got the Domain Name first and I paid for it — so it’s mine!
YOU COULD BE WRONG!
(NOTE: This Comes Under Trademark Law, Which Is Almost As Strange)
If it was not already registered, I could register disneyland.com if I wanted to. The domain registration authorities don’t check whether you have the right to use a name, they just check to see if it is already used. They will therefore gratefully accept your money, and bingo, you are on the net as disneyland.com — until the lawyers at Disney catch you. Then you will be on the losing end of a nasty trademark infringement suit.
You might not even be able to legally use your own name. Assume for a moment that your name is Joel Hyatt, and you have a law firm called Hyatt Legal Services. You want to register hyatt.com, and the hotel folks have not yet jumped on the Internet wagon. You’d lose — Joel A. Hyatt did in a similar case involving trademarks rather than domain names. He could not legally use his own name as a domain name.
The entire arena of intellectual property law and the Internet is very fuzzy at the moment, and it is going to be a few years before it becomes any more clear. The very act of looking at a website is a technical violation of the copyright laws, since you are making a copy on your hard drive and/or in the memory of your computer. Of course, this is certainly an “Authorized Copy” since you couldn’t view the site otherwise, or it may fall under the “Fair Use” provisions.
Programs like Web Whacker are available which allow you to download entire Websites into your computer for off-line viewing later. Is this a violation, an authorized copy or fair use? At the moment, nobody really knows for sure. It’s a safe bet that just using this to download a site for offline viewing by yourself could be considered an authorized copy. If, however, I copied that off to diskette and distributed it at one of my public programs, I could be in deep guano. In fact I might be in trouble if I showed the copy as part of my presentation even without distributing it.
The I.P. Lawyers Say:
“I tell my non lawyer audiences to apply the smell test – does it seem right or kind of shady or sleazy – if it is, its probably illegal. Best bet is either create your own or buy the rights which are usually fairly cheap, unless they are really famous like Ansel Adams photos or Andy Worhol.”
In summary, be safe rather than sorry. When there is any doubt, get written permission to use, copy or modify copyrighted works, and assume everything is copyrighted. If you are still in doubt, consult an Intellectual Property Lawyer.
For further research and reference, you may want to check out Title 17 of the US Code— the Copyright Section.
The United States Library of Congress Copyright Office has a website where you can find out more about copyright basics, filing procedures and even get the forms that you will need.
Microsoft Copyright and Permission Information
If you’re looking for information on Microsoft copyrights, trademarks, and permission procedures, you’ll find what you need here. Microsoft addresses questions about copyrights, trademarks, and using the company’s logos, products, and clipart in outside Web sites, marketing materials, and products. Find out which images, products, and logos you can use without permission, and which require sign-off from their respective product groups.
The details don’t stop there. This site contains all sorts of little gems: such as, how to legally donate copies of Microsoft software to non-profits, how non-profits can obtain software, and how to downgrade to earlier product versions.