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John Grant
Intellectual Property Attorney
Portland, Oregon
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Protect your website from copyright infringement claims

Website owners face an increasing number of claims for copyright infringment as copyright holders utilize sophisticated detection technologies. This article describes five steps that website owners can take to avoid copyright infringement claims and mitigate any claims that may arise.

Written Jul 23, 2008, read 4155 times since then.
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From the earliest days of the internet, online technology has allowed users to access and distribute copyrighted content with seemingly reckless abandon. In recent years, however, high-profile copyright holders like major record labels and TV studios have harnessed technology to detect—and demand payment for—online infringements of their works. Now, as wider adoption of online detection tools drives down the costs of discovering infringement, many more companies and individuals are turning to such tools to protect their copyrights.

Image recognition is one such tool that is proving extremely useful for owners of visual works to police use of their works online. Companies like Digimarc, PicScout, and Idée are exploiting the emerging market for copyright infringement detection by using sophisticated robots (also known as spiders) that troll through web sites image by image to find uses of their customers’ creative works. The robots then report those uses back to the copyright holder and, if no license is found, the copyright holder will typically seek damages for the unauthorized use. While the expense of these services had previously limited their use primarily to large media companies, new developments like the TinEye service from Idée promise to bring online detection of unlicensed images to a wider base of copyright holders.

What will these developments mean for website owners who are using these images? As copyright holders discover more unauthorized uses online, unsuspecting website owners will see an increase in cease and desist letters, Digital Millennium Copyright Act (DMCA) takedown notices, and, of course, demands for payment. The strict-liability nature of copyright law is often poorly understood by typical website owners, and anyone without scrupulous practices for licensing digital media risks liability for copyright infringement.

Website owners, a group that encompasses practically every business and countless individuals, can take several specific steps to protect themselves from copyright infringement claims:

(1) License all content. While this may seem elementary, there is still a common misperception that if something is available on the internet then it must be in the public domain. This is not the case. And just because a work doesn’t have a copyright notice doesn’t mean it is available for free; Congress abolished the notice requirement for all works published after March 1, 1989 to comply with an international treaty. As noted above, copyright infringement is essentially a strict liability offense—where infringement in fact occurs, intent to infringe is not required to establish liability and a person can be held liable for damages even if he didn't know that he was infringing. This means that the burden is on a user of content to ensure that he has obtained proper permissions, not on the copyright holder to police her work. And the best way to make sure you have proper permission is to buy a license from the copyright holder.

(2) Supervise your web designer. Relatively few businesses create and maintain their own web sites; most outsource this work to a web designer of some sort. But the owner of a website is ultimately responsible for the content it contains, so it is important to ensure that any web designer obtains all necessary permissions to use creative content. A savvy website owner will demand copies of all licenses for content of any kind. On top of that, a website owner may seek both a warranty from the web designer that the designer has obtained all necessary licenses as well as indemnification should any infringement claims arise concerning the website. But the licenses themselves are of paramount importance; contractual claims have little value against a struggling or defunct web designer, but a valid license will often defeat—and will at least mitigate potential damages resulting from—an infringement claim.

(3) License from the proper party. This step can be easier said than done. Where an author has registered her work with the U.S. Copyright Office, a potential licensee can demand to see a copy of the registration certificate or search the copyright records online to verify ownership. But registration is not required for copyright protection to vest in a work, and anyone can fraudulently claim authorship of an unregistered work. Even with registered works, an author may have already transferred her licensing rights to a third party. The best solution is to seek warranties and/or indemnification from the licensor that she has all necessary rights to issue the license.

(4) Keep records of your licenses. Again this seems elementary, but most people don’t realize that content is often licensed for specific uses and durations. Any use that exceeds the license is technically infringement and is actionable as such. In practice, however, a copyright holder will often seek license-extension fees from someone who can show that he holds a valid-but-incomplete license rather than sue for full-blown infringement. Extension fees are usually much less costly than defending against an infringement claim.  

(5) Comply with the DMCA. This suggestion applies primarily to owners of websites that allow users to post and edit their own content online. Such websites include content-sharing sites, social networking sites, and even blog sites that allow users to post comments to blog entries. Without DMCA protections, website owners risk being held primarily liable for copyright damages whenever an outside user posts infringing content on the site. And while the DMCA shield is powerful, it is not automatic; website owners must comply with the specific requirements of the statute including (but not limited to) registering with the Copyright Office as an Online Service Provider, publishing the contact information of a Designated Agent for handling DMCA takedown requests, and complying with such requests within the statutory time periods.

While this list isn’t exhaustive, these basic steps will go a long way towards insulating website owners from copyright infringement claims and defending any claims that do arise. For more information, the Copyright Office maintains several publications on its website, www.copyright.gov, to help content users navigate copyright law.

Disclaimer: This article may not be current, accurate, or complete at the time you read it.  Furthermore, the article's content should be construed as  information only and does not constitute legal advice. This article should not serve as a substitute for consultation with a professional attorney.

Learn more about the author, John Grant.

Comment on this article

  • Writer (TV/film concepts) 
Akron, Ohio 
Alma Gray
    Posted by Alma Gray, Akron, Ohio | Aug 04, 2008

    Great advice.

  • Numerical pattern recognition based on a person's numerological profile (author/consultant) 
Mercer Island, Washington 
Ute Medley
    Posted by Ute Medley, Mercer Island, Washington | Aug 04, 2008

    Thanks for the detailed info. Intellectual property right owners appreciate that their original work is protected, but often they don't know that copyright infringement takes place. We need services that not only check for copyright infringement on images.

  • PR Agent / Marketing 
Chicago, Illinois 
Nic Soto
    Posted by Nic Soto, Chicago, Illinois | Aug 05, 2008

    Something to certainly pay attention to.

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 05, 2008

    Ute, I think your point is a good one. I used images as an example primarily because the TinEye service is helping individual photographers access technology that was once only available to large media companies. But any work of authorship that can be expressed digitally will lend itself to similar detection technologies so long as there is a large enough market for a computer programmer to go to work on the problem. Music and sound recordings already have detection services, and other media will surely follow.

    Not only that, but I suspect that in the next several years we'll see consumer software advance past recognizing entire works to detecting individual objects within those works. Object recognition would, for example, allow a sculptor to find photographs or videos that depict her work. A form of this technology is already used for facial recognition in security situations, and it is only a matter of time before consumer-level applications begin to unfold.

    Whether the above-mentioned depiction of a sculpture in a photograph would amount to infringement or would be considered "fair use" is a legal question, and it isn't always an easy one. But as detection improves, we will be asking that question more often.

  • Career Counselor 
Seattle, Washington 
Laila Atallah
    Posted by Laila Atallah, Seattle, Washington | Aug 05, 2008

    John, thanks for helping us navigate the maze. Your warnings about checking with our web designers to insure we have copies of licenses was new, and very helpful information for me.

  • Custom web designer, web site & eCommerce development, SEO 
Rogue River, Oregon 
Susan Tilley
    Posted by Susan Tilley, Rogue River, Oregon | Aug 05, 2008

    Copyright is a subject, I find, that many people do not understand. I feel it is important for every business owner to get at least a basic understanding of copyright rules and how the rule might apply to their business.

    Thanks for the article.

    Susan

  • Attorney 
Tacoma, Washington 
Darol Tuttle
    Posted by Darol Tuttle, Tacoma, Washington | Aug 05, 2008

    I liked your article but wondered what the remedies are for infringement. I think I understand what the maximum possible remedies for infringement are but wonder about the practical remedies (or liabilities depending on your position). In other words, what really happens compared to what the worst possible penalty. My observation is that running a small business is expensive. Are the recommendations made in the article expensive? If I were to post content on my site that violated a copyright, what happens next? In other words, don't kill me here, but is the expense of licensing high enough that it is worth the risk to NOT license? Just wondering.

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 05, 2008

    Darol:

    You pose a good question. What you are describing is sort of a concept of "efficient infringement" (borrowed from the contract law notion of "efficient breach," where it is cheaper for a party to breach a contract and deal with damages than it is to continue performance on the agreement). If I understand your question correctly, you're asking whether a cash-strapped business owner may be better off not licensing a work up-front and dealing with any damages once he gets caught than he would be to license a work ahead of time.

    The answer here is an emphatic "no!" In writing the copyright statute, Congress anticipated people trying this system and came up with specific remedies to deter it. As a general rule, copyright law is very strong in favor of copyright holders.

    When someone infringes a copyright, the copyright holder is entitled to recover both (1) her actual damages (i.e. the price you would have paid had you licensed the work up front), and (2) the profits of the infringer. Not only that, but in calculating the profits of the infringer, all the copyright holder has to do is show what the infringer's gross revenues were during the infringement, and the burden then shifts to the infringer to prove what portion of those gross revenues were due to things other than the infringement--undoubtedly an expensive and cumbersome task. And if the copyright holder had the forethought to register the work prior to the infringement (or within 3 months of it's first publication), she can elect to pursue statutory damages and attorney's fees.

    One of the points of my article is that with detection costs coming down and technology improving, getting caught infringing is now a matter of "when," not "if." And with plenty of low-cost licensing options available (for photography, try one of the microstock agencies listed at http://www.microstockdiaries.com), there is really no reason to risk the expense and hassle of defending an infringement claim.

    As for your question around what are the practical remedies as opposed to the legal ones, that can be all over the board depending on who the copyright holder is. The problem with infringement is that if you don't know who the copyright holder is to begin with, you risk using a work that may have some powerful forces behind it. Sure you may just grab someone's family snapshot from Flickr, but that snapshot may actually belong to a professional photographer who is able to command thousands of dollars per photo. There are other benefits to licensing content as well, specifically regarding model and property releases. If you don't know where a photo comes from, you may be liable for misappropriation of likeness, invasion of privacy, or other possible tort claims, in addition to copyright infringement.

    I should note that what I've described is a very brief summary of possible copyright damages. Anyone who has more specific questions should contact an attorney to discuss them further.

  • Attorney 
Tacoma, Washington 
Darol Tuttle
    Posted by Darol Tuttle, Tacoma, Washington | Aug 05, 2008

    Thanks for the quick response. Maybe we should chat offline but I also wonder about the differences between copyright and patent. I know that one is protecting content and the other an invention but in the modern world, many inventions are not really things, i.e., actual objects. They are processes as expressed in code, i.e., computer code. So, is that patent or copyright?

    A copyrighted photo is clearly unique. Assuming one did not plagarize text or written content verbatim, does the copyright protect the unique "Idea" of the content or just the literal content? If copyright does not go so far, patents have more kick to them? Suppose I copied the source code of a unique way of doing something from the internet. Would that be patent or copyright infringement? If patent infringement, how much trouble would I be in?

  • Seattle WordPress Trainer 
Seattle, Washington 
Bob Dunn
    Posted by Bob Dunn, Seattle, Washington | Aug 05, 2008

    Hi John, thanks for this article. I think there are too many people out there on both sides who are unclear of what they can and cannot use.

    And the note to check with our web designer rings true.

    I found one of my photos on a website and asked the owner where she got it. She had no idea as her web designer had used it. When I requested that she either pay for it or remove it immediately, nothing happened. Then after sending a quick email that my attorney would be contacting her and the designer, it was taken off minutes later.

    Thanks again and maybe this will get some people thinking of what they can and cannot use, especially via the internet!

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 05, 2008

    Darol:

    Again, good questions. The short answer is that patent, copyright, trademark, trade secret, and other intellectual property concepts all protect different things and they do so in different ways. Other types of information, ideas, and concepts may not fall under any type of established intellectual property legal scheme and can only be protected through contractual agreements between parties that share the information, idea, or concept with each other (things like nondisclosure agreements can help protect these items).

    Copyright law is very explicit that it protects the expression of an idea, but not the idea itself. For example, if you decided to write a children's book that chronicles the life of a boy wizard at a magic academy, you are completely free to do so. It is only when you name your lead character Harry Potter that you will start to run afoul of copyright law.

    And certain items, like the software you describe, can be covered by more than one intellectual property scheme. As a hypothetical, say you receive a patent for a "System or Method of Calculating Copyright Damages" that covers a piece of software that you wrote to solve that problem. Such a patent gives you the sole right to exploit that particular solution to the problem for the statutory period (typically 20 years from filing the patent application but this can vary depending on when you first obtained the patent).

    On top of the patent you also get copyright protection in the software code itself, since it is the expression of the underlying idea. Once your patent expires, some third party is free to write their own software program that calculates copyright damages and there's nothing you can do about it. But they cannot just take your software code and start distributing it without your permission because that would still amount to copyright infringement.

    Similar scenarios could be devised where an item is covered by both trademark and copyright or copyright and trade secret. Again, my hypotheticals are overly simple, but hopefully they illustrate the point.

    One other point of clarification to your post: copyright infringement doesn't necessarily require verbatim copying to be actionable; in some situations "substantial similarity" can be enough to establish infringement.

    If you want to learn more about the interplay of various IP laws, there are many resources online and in print that can help get you started. If you have a particular issue in mind that you're concerned about, let's talk offline.

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 05, 2008

    Bob:

    I think your situation is all too common. I plan to write another article in the near future discussing the other side of the coin from this one: what to do when you discover someone has infringed on your work. As a short answer I'd say out that you probably have a legitimate claim for monetary damages--just taking the infringing work down doesn't absolve an infringer of liability. Of course going after payment may be more trouble than it is worth, especially if you didn't register the copyright and therefore aren't entitled to attorney's fees. I'd have to know more about your particular situation to go any deeper.

    I will point out that if the infringer hadn't removed the photograph upon your request, then she could be found liable for intentional infringement which carries penalties of up to $150,000, so it is good (for the infringer) that she at least took the photo down.

  • Seattle WordPress Trainer 
Seattle, Washington 
Bob Dunn
    Posted by Bob Dunn, Seattle, Washington | Aug 05, 2008

    Thanks John. Yes, if I see someone do something like this blatantly I would probably go further than a threat like this one. In this case, she had no idea that her designer had just grabbed it off the net, so it was a lesson learned for her. Since she finally did take it off, I just left it at that. This particular instance wasn't worth the trouble for me.

    But again, great info you are sharing here and I look forward to your next article.

  • Blogging Coach and Copywriter 
Seattle, Washington 
Judy Dunn
    Posted by Judy Dunn, Seattle, Washington | Aug 06, 2008

    Excellent article, John. Would love to address this issue in a future issue of our marketingyoursmallbiz.com e-zine.

    Think it would be possible to quote you and provide a link back to your website?

  • Attorney 
Tacoma, Washington 
Darol Tuttle
    Posted by Darol Tuttle, Tacoma, Washington | Aug 06, 2008

    Thanks for the response. I think you should host an event of some sort and go over some of these distinctions. You do a good job of laying out the nuances.

  • President, Parallax Consulting, Inc. 
Clinton, Washington 
Don Johnston
    Posted by Don Johnston, Clinton, Washington | Aug 06, 2008

    John,

    Thanks for the great article! We are just in the process of having our new web site go live and are now going to go back in and make sure we have nothing in it that could be a problem. Very timely! Continue the good work.

    Don

  • Consultant 
Seattle, Washington 
Joel Ballezza
    Posted by Joel Ballezza, Seattle, Washington | Aug 08, 2008

    Brilliant article, great tone and congrats on making the weekly email from Dan!

  • Trademark & Copyright Attorney  
Tacoma, Washington 
Brian  Geoghegan
    Posted by Brian Geoghegan, Tacoma, Washington | Aug 08, 2008

    As another copyright attorney, I can echo the prior comments that this is an excellent article, John. I thought so when I read it the other day in the KCBA Bar Bulletin and I'm glad you decided to post it here as well. Way too many small businesses have been getting into copyright trouble without the slightest idea that they're doing anything wrong. Welcome to the local IP bar and I hope we get a chance to meet soon!

  • Pilates Expert and TV Personality 
Canonsburg, Pennsylvania 
Nancy  Griffin
    Posted by Nancy Griffin, Canonsburg, Pennsylvania | Aug 08, 2008

    Timely Article, John. I am in the process of building a new site and will pass this on to my future webmaster. May even add this to our contract. Am concerned about protecting my kick-but name "Skinny Jeans Forever!

    Check out my sites: www.SkinnyJeansForever.com www.ScooponPilates.com www.SkinnyJeansPilates.com

  • residential & commercial realtors 
Seattle, Washington 
Reba Haas
    Posted by Reba Haas, Seattle, Washington | Aug 08, 2008

    Hi John,

    I have a question about blogging and the use of images in the posts written. I do a lot of writing about local companies in the form of promoting these businesses. I make no money from it but rather write about these places to inform my clients and online readers about local places to go, etc. In the end, it is free advertising for these companies. If I use an image that is a link to their website while describing who they are am I likely to run into an infringement problem?

    Thanks, Reba Team Reba of RE/MAX Metro Realty

  • Certified Facilitator of The Work of Byron Katie, Teacher and Performer of Improv 
Santa Cruz, California 
Carol Skolnick
    Posted by Carol Skolnick, Santa Cruz, California | Aug 08, 2008

    There are three flies in the ointment that I know of.

    1. Fair use. Someone can use your words or images in part, whether or not they have your permission, if it's to make a point in their own content.

    Reba, if you have not asked the companies you are blogging about if you can use their image, you may indeed run into an infringement problem, but some in your shoes would cite "fair use." Always best to check with them.

    1. Foreign websites. I had an essay stolen on a website out of New Zealand that I would never want to be associated with; an escort service! There is, apparently, nothing I can do to get it removed or to be paid for it.

    2. Bittorrent sites, where users anonymously upload and share whatever they darn please—even entire books—on an equally anonymous site; there's no one to contact and you can't stop them.

    One thing you can do is to be aware of when your work is being appropriated. Use Copyscape, a free service that scans your site and finds verbatim copy on other sites. This came in handy this week when I discovered that a (former, now banned) member of Biznik had stolen an article I wrote and posted it here as her own. Copyscape showed me that she had done the same thing on another social networking site. This is something that you may not find using Google alone.

  • Humorist, Writer, Author 
Boston, Massachusetts 
Chris Radant
    Posted by Chris Radant, Boston, Massachusetts | Aug 08, 2008

    John- Just last week a friend sent me a petition to sign. It was about copyright protection being killed altogether, making everything public domain. Have you heard of this? I'm sorry I don't remember the name of the org. It was circulated by the head of the Bellevue Festival of the Arts, asking artists to write letters describing the impact that would have on our work. Do you know anything about this?

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 08, 2008

    Reba:

    Good question regarding your blog. I think Carol's mention of "Fair Use" is appropriate and is likely to apply to your blog, but I'd have to know more about your specific postings to say for sure. Of course the safest route, as Carol also mentioned, is to get permission to use the logos. But I don't think spending the time doing so is always necessary, again depending on your particular situation.

    The copyright office publishes a fact sheet on Fair Use on its website, http://www.copyright.gov/fls/fl102.html. Also, the Stanford Library runs a Fair Use Project with great information, http://fairuse.stanford.edu/, and Stanford Law Professor Martha Minnow writes a Fair Use blog that is accessible from that page.

    If you have detailed questions regarding what is or isn't fair use I'd suggest contacting an attorney, but hopefully the resources above will give you a good start.

  • Trademark & Copyright Attorney  
Tacoma, Washington 
Brian  Geoghegan
    Posted by Brian Geoghegan, Tacoma, Washington | Aug 08, 2008

    Reba,

    If the "images" you're posting are the companies' logos, then copyright fair use, even if it applies, won't shield you entirely. That's because logos are protected as trademarks, in addition to any copyright protection.

    Trademark law has its own version of "fair use" but it's very different from copyright fair use. Under trademark law, you're allowed to use others' trademarks to accurately identify their products (it's a necessary rule to protect free speech), but that generally extends only to their WORD marks. As a general rule, you're not permitted to use their logos because that is more than is necessary to make whatever point it is you're trying to make.

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 08, 2008

    Chris:

    The petition you saw is probably referencing the proposed "Orphan Works" legislation that is currently winding its way through Congress. Briefly, an "orphan work" is a copyrighted work whose author is impossible to identify or locate.

    Under previous versions of the Copyright Act, this wasn't as much of a problem because the initial duration of copyright protection was relatively short (28 years from publication), but an author could extend protection for another period of time by filing a renewal with the Copyright office.

    This made determining whether a work was in the public domain reasonably easy. The logic (oversimplified) went something like this: if a published work is older than 28 years and no renewal was filed, then it is in the public domain. (For a great tool to help with Public Domain calculations, see the Copyright Slider at http://librarycopyright.net/digitalslider/.)

    Lots of electrons have been spilled online regarding the Orphan Works issue, and many of the heavy hitters in the media industry have staked their positions. For an overview of the report that the Copyright Office created on this topic and links to the proposed legislation, see http://www.copyright.gov/orphan/. For commentary from various interest groups, just search the term "orphan works" online and the results will keep you busy for as long as you care to spend on them.

    If you have any specific questions or concerns regarding your own works and how their copyright protection may be impacted by this legislation, I'd be happy to talk more about it with you offline.

  • Photographer 
New York, New York 
Koren Reyes
    Posted by Koren Reyes, New York, New York | Aug 08, 2008

    I have a question about web copy. I'm a photographer and I know how to register my images with the copyright office, but how do you protect the copy itself?

    When you talk about licensing content, are you including the copy writing as well as images, sound, video, etc? How do you handle changes in copy, material or minor?

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 08, 2008

    Hi Koren:

    Written copy can be protected the same way as any other work of authorship: Copyright protection attaches as soon as the work is created, and an author can realize additional benefits by registering the work with the Copyright Office.

    As for licensing copy for use in a website, this primarily comes into play if you utilize the written works of some third party. If you generate your own copy for your website, then obviously you are the author and own the copyright. If your web developer generates copy, then you should have it spelled out in your contract how the ownership of the copyright in the text will be handled and who has the rights to that text going forward (there are a few different ways of handling this that I won't go into here).

    If you use some third party copy, however, then you need to ensure you have the proper rights to use it just as you would a photo, video, or other media type (subject to the same Fair Use exceptions). For example, if you create a Brett Favre fan site and you post on that site the text of a New York Times article discussing his trade to the Jets, you've very likely infringed on the Times's copyright in that article (the news event itself isn't covered by copyright, but the expression of that news item by the Times reporter is protected).

    In my experience, some of the most common instances of copyright infringement regarding the copy on a website involve the legal copy: Terms and Conditions, Privacy Policies, etc. Lots of web developers and website owners, as a shortcut, simply copy and paste these legal documents from other well-known sites to avoid the costs of hiring an attorney. Certainly this is a bad idea from a contract-law perspective because another company's needs for these documents are likely to be different from your own. It is also a clear copyright violation; either the attorney who originally drafted the text or the website owner for whom she drafted it could come after you with an infringement claim.

    Carol, in her comment above, already mentioned the Copyscape service. This makes it awfully easy for the rights holders in website copy to come after infringers in much the same way photographers can use PicScout or Tineye to monitor use of their photographs., so I would have to say that here to, it is not a matter of whether you'll get caught, but when.

  • Photographer - Commercial 
Seattle, Washington 
Kate Baldwin
    Posted by Kate Baldwin, Seattle, Washington | Aug 08, 2008

    Thank you for your article, John! As a commercial photographer, I have experienced both first and second-hand the effect of copyright infringements, (typically, though not always, out of ignorance). I really appreciate that you are educating people on the importance of honoring the copyright laws. Most people are willing to be compliant with those laws when they understand them. Thanks! Kate Baldwin

  • creative director 
Los Angeles, California 
heather parlato
    Posted by heather parlato, Los Angeles, California | Aug 09, 2008

    fantastic & informative article, john! as a graphic designer, issues of copyright come into play regularly and it's nice to see that your advice is to simply abide by the law.

  • Information Publisher 
Belleuve, Washington 
Bal Simon
    Posted by Bal Simon, Belleuve, Washington | Aug 09, 2008

    Hi,

    Great article, but the task seems daunting. If I outsource anything creative, how can I ensure that I'm not being given somebody's plagiarized shortcut? There are literally millions and millions of books. There are billions of reports and articles. For electronic media, MAYBE I have a ghost of a chance using searches, but how do you search paper media? What if someone said created something in a for use in a local theater?

    The task of making sure I haven't infringed seems hopeless to me.

    Am I missing something here?

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 09, 2008

    Hi Bal:

    I understand your frustration; it can be very difficult tracking down the owners of content you'd like to use. But if you do not definitively establish your right to use a work--either by getting permission from the proper rights holder or confirming that the work is in the public domain--you will run at least some risk of someone making an infringement claim against you.

    If you are worried about somebody selling you an infringing work (the plagiarized shortcut you mention), the best approach is to make sure that the person who sells you the work takes full responsibility for it. (See the discussion of warranties and indemnification clauses in points 2 and 3 of my article.)

    The daunting feeling of the task you describe is exactly what Congress is trying to address in the Orphan Works legislation I mentioned in a previous comment. The general approach being proposed is that where someone makes a good-faith effort to track down and license a work but honestly can't find the license holder, then if the license holder later surfaces with an infringement claim she would only be entitled to a reduced damage award (currently proposed at a couple hundred dollars). This would more or less be an expansion of the existing "innocent infringement" defense which allows an infringer to reduce a damages award (but doesn't absolve him of all liability). The current "innocent infringement" test can be difficult to meet, so the "orphan works" proposal would attempt to mark a clearer path.

    Also, for help in determining what is or isn't in the public domain, I recommend Steven Fishman's Book, "The Public Domain: How to Find & Use Copyright-free Writings, Music, Art & More."

    Hope this helps. If you have questions about a particular work you'd like to use or need to have someone review your contract with a content provider, I would be happy to consult with you to determine your best course of action.

  • Information Publisher 
Belleuve, Washington 
Bal Simon
    Posted by Bal Simon, Belleuve, Washington | Aug 09, 2008

    Hi John,

    I'll certainly keep you in mind as a resource for this problem. Thanks.

    It would be good if the orphan works law got passed. I can anticipate the difficulties, given the good faith standard and lots of jerks trying to game the system, but hopefully it can be worked out.

    My current method is to obtain summaries from my outsource contractors and then do the writeups in my own words. This greatly slows me down, but since my words are original, I think I should be OK.

    Question: how do Google and other SEs get away with spidering and caching all my and everyone else's content to their servers for their commercial gain? Seems like we'd all have a class action lawsuit against them. Yet obviously we don't, otherwise it would have happened by now.

    Is this a case of Animal Farm where we're all equal, but some of us are more equal than others?

  • Lead Asbestos / Home Inspector 
Bellevue, Washington 
Darren  Spencer
    Posted by Darren Spencer, Bellevue, Washington | Aug 10, 2008

    Great info....Do you cover cases for Name Infringement? I have a company with a claim that may need attention. I have a couple firms that have given me legal advise but also am open for additional advise.

  • Massage Therapist 
Benton, Illinois 
Eric Heidemann
    Posted by Eric Heidemann, Benton, Illinois | Aug 10, 2008

    Thanks for the information. I am new to building my website ad this is great information for the newbie and the oldie !!!! thanks again.

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 11, 2008

    Bal:

    First I want to address your comment regarding your current method for avoiding copyright issues by re-writing the summaries you get from outside writers. While this could work, it seems awfully labor intensive and expensive. Why not make sure that any contract you have with your contractors includes a license for you to use their output for your end project (whatever it may be)? Who knows, your existing agreements may already cover this sort of thing. I'd take a closer look, and try to rewrite them if they don't.

    Regarding search engines and their use of online material, the short answer is that search engine uses of many types of content have been designated as "Fair Use" by various courts, including the Supreme Court.

    Fair Use is worthy of an article all by itself, but the basics are that courts consider four factors-- mandated by statute, 17 U.S.C. 107--in determining whether a particular use of someone else's work is a fair use:

    (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

    (2) the nature of the copyrighted work;

    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of the copyrighted work.

    Cases concerning search engines typically focus on the "transformative" nature of the use under the 4th factor, offering the opinion that enabling users to find a particular work doesn't diminish the market for the underlying work. For a look at the 9th Circuit's discussion of the matter is it pertains to thumbnails of photographs used in online search, see Perfect 10, Inc. v. Amazon.com, Inc. , 487 F.3d 701 (9th Cir 2007) , more commonly known as Perfect 10 v. Google (link is to a PDF file).

    As I said, Fair Use is worthy of its own article, but feel free to contact me if you have further questions.

    And always remember that the purpose of Copyright Law is expressed in the Constitution in Article 1 Section 8 : "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The doctrine of Fair Use is there to make sure that the grant of a limited monopoly is balanced against the promotion of progress, and there is a natural (and I think ultimately beneficial) tension between the two.

  • Information Publisher 
Belleuve, Washington 
Bal Simon
    Posted by Bal Simon, Belleuve, Washington | Aug 11, 2008

    Hi John,

    I guess a case could be made that the search engines actually improve the market for an existing work. After all, what used to require a trip to the library or bookstore (often unsuccessful) is now staggeringly easier with the SEs' help.

    Regarding my rewriting the summaries I get from contractors... I was under the impression that I am absolutely liable for any found plagiarism and that the fines for each such act can be enormous. Good faith efforts to make sure that a work is original or that I looked for but could not find or contact a work's ower, under current law, seems not to matter much.

    Are you saying that I can write up my contract to hold my contractor liable for acts of plagiarism? This seems unlikely given that:

    1 - Many contractors are overseas and out of reach of American jurisdictions.

    2 - Many of these contractors are not wealthy enough to indemnify themselves, let alone me.

    Also, while it indeed is labor intensive and expensive to do my own rewrites of the summaries, it also seems labor intensive to contact the owners to make sure that my contractor is on the up-and-up with respect to obtaining a license.

    It's also far cheaper to do the rewrites than to face the onerous fines.

    And finally, if I were going to go the license route, I might be able to work out a better financial arrangement with the owner than could the contractor.

    I think that until the law recognizes the (what seems to me an unreasonable) burden it places on people like me, the rewriting course is just one of the costs of doing business.

    I'd LOVE to know that my analysis is flawed. :)

    Thanks, John.

    Regards, Bal

  • Web Designer 
Salem, Oregon 
Emma McCreary
    Posted by Emma McCreary, Salem, Oregon | Aug 11, 2008

    Bal, perhaps you are missing the general failure of people to control the creative re-mixing urge through lawmaking? Hmm...what else have we failed to control through lawmaking, let me see...

    Anyway for folks who want to try a less draconian form of copyright, check out: http://creativecommons.org/

  • Intellectual Property Attorney 
Portland, Oregon 
John Grant
    Posted by John Grant, Portland, Oregon | Aug 11, 2008

    Bal:

    Without knowing more about your individual situation, I can't say whether or not your approach makes sense. I think your concerns regarding jurisdiction and security are valid ones, but there may still be ways to make your work easier.

  • artist 
Highland Lakes 
Dawn McLaughlin
    Posted by Dawn McLaughlin, Highland Lakes | Oct 25, 2008

    I have a question about copyright infringement protection. I am a visual artist.

    While I have registered copyright on my work with the Library of Congress, I am concerned about how to protect myself from liability should someone level a claim against me for copyright infringement. (A person can go broke defending even a baseless claim.)

    As I gain a wider audience through my website and other internet sites, I am concerned that I need protection against any claim that might be brought against me (as unlikely as that might be).

    I am also considering signing with an art licensing agent. The contract will indemnify the agent should a claim be brought. This puts me in a position of being responsible for both my legal fees and those of the agent.

    Insurance for copyright infringement protection is a minimum of $2,000 per year. I am just starting out, investing a lot of time and energy and money in art prints and other forms of art reproductions of my artwork. My expenses far outweigh any income at this point.

    Does anyone have any advice for me? Would forming an LLC protect my personal assets, even when the "product" is intellectual property?

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