What every Webmaster Needs to Know about Copyright Law

16 replies
Here is a piece on Copyright Law I wrote I thought some of you here at the Warrior Forum might find it useful. I went to law school, passed the bar and practiced law for five years, but this is not legal advice just a general coverage of the topic.

Copyright law is one area where webmasters can run into a lot of expensive problems. In short something is copyrighted when it first becomes fixed in a tangible medium. That is the technical definition. The more user friendly version is anytime you take a picture, make a video, audio recording or publish a line of text on your blog you have created a copyright and you are the holder of that copyright. The work doesn’t have to be commercial in nature or in other words your family vacation photos are copyrighted works.

Furthermore you should assume every image, every line of text, every audio and every video you run across online is copyrighted and not available for you to post on your blog as it was created by someone and fixed in tangible medium by them. If you post these materials to your blog you are infringing upon their rights.

But What about Public Domain
First off Public Domain works aren’t what you think they are. Public Domain works are for the most part works that are so old that their copyrights have expired. Public Domain works are not works you find on file sharing sites or even funny pictures you find on social media sites. In the last few years this is where a lot of problems have arisen. Just because someone creates a funny picture and posts it on FaceBook doesn’t mean that they have surrendered all their rights in that picture. It simply means they chose not to enforce those rights for FaceBook users. If you take that funny picture and post it on your blog they can sue you or at the very least send you a takedown notice (DMCA Notice) that will probably result in your web host taking your blog offline at least temporally. If the notice was sent to your domain registrar they very well could suspend you domain and charge you a bunch of fees for the hassle. However, it can be much worse than even that.

There are two Kinds of Copyrights
There are two kinds of copyrights. The first kind of copyright is the type we have been talking about namely whenever someone creates a work it is automatically copyrighted by them. The second type is when someone creates a work and then registers that work at the U.S. copyright office. If you post something to your blog that is a registered copyright you’re in deep doo doo. Not only will you have to take their work down, deal with your web host and maybe your domain registrar, but you may very well have to pay thousands of dollars or even tens of thousands of dollars in damages.

With an unregistered work the copyright holder has to prove that he or she incurred actual damages. With a registered copyright the copyright holder doesn’t have to prove actual damages to get a monetary award. You also have to pay the registered copyright holder’s attorney’s fees so even if the copyright holder isn’t awarded a great deal of damages you may be liable for thousands or even tens of thousands of dollars in attorney’s fees alone. Worse yet there is simply no legal defense to using a registered work.

If you use a registered copyright you are liable it is that simple. It is not a defense to claim your outsourced designer did it or you found the work in a place like Flicker as a creative commons work. You are still strictly liable. So be aware even if you are using what you thought was a creative commons work if the up loader of the work wasn’t the copyright holder of the work you are liable to the copyright holder. Simply not knowing is not a defense. You are also responsible for whatever existing work your designer incorporates into your design.

A Current Copyright Problem Area
Right now there is a real racket where people in the image licensing business share their work on social media and or file sharing sites. Eventually some poor webmaster runs across it and ends up putting it on their blog. Soon they get a demand letter notifying them of their infringement and it contains an offer of no further legal action if the webmaster will simply cut a check for $10,000 to the rightful copyright holder. Sadly if the copyright holder takes the webmaster to court the webmaster will very likely lose even if it was a set-up from the get go.

How to avoid copyright trouble
Unfortunately, the only sure way to avoid trouble is to create your own works for your blog or license all the images, video, audio or text you, your designer or staff uses on your blog. Short of that attribute everything. For example if you find a creative commons work that you want to use Attribute that image to it’s source. It is also very helpful to take a screen shot of where you obtained any image you end up using along with URL. While that might not be a defense against a registered copyright holder it might gain you some sympathy.
#copyright #law #webmaster
  • Profile picture of the author x3xsolxdierx3x
    Thank you!

    You don't see this topic addressed every day here, although it probably should be.

    As for pictures/images, many just go to Google Image search, and strip off and use the first image that appeals to them.

    I've gotten use to simply paying for images I use, on my blog and elsewhere, through iStockphoto. There may be cheaper alternatives for free out there, however, I'd rather err on the side of caution knowing I paid for the rights to use something.
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  • Profile picture of the author samscott10
    What if i were to embed youtube videos on my site without the creators permission?
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    • Profile picture of the author jazbo
      You tube encourage embedding and provide code to do so. It's their problem.

      Originally Posted by samscott10 View Post

      What if i were to embed youtube videos on my site without the creators permission?
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    • Profile picture of the author JohnMcCabe
      Originally Posted by samscott10 View Post

      What if i were to embed youtube videos on my site without the creators permission?
      Spend a few minutes reading the actual license you give YouTube when you upload a video to their server. You actually grant a very liberal license allowing them to offer your video to pretty much anyone who wants to use YT's embed code.

      In this case, you don't need the creator's permission to display the video using YT's embed code. You already have it, via YT's licensing terms.

      If you do something sketchy (or flat out illegal) like downloading the video, altering it, adding your own links, etc. we're in a totally different conversation. One where I personally hope the guilty parties get nailed to the wall...
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  • Profile picture of the author SunilTanna
    A couple of points (IANAL)

    1. To infringe a copyright, you generally have to actually copy the file (e.g. to your site), or create an authorized derivative work. Merely linking to (including "embedding" in an IFRAME or IMG tag), probably isn't copyright infringement in the US - see Inline linking - Wikipedia, the free encyclopedia

    2. Just because somebody has a registered copyright, even if you infringe, doesn't automatically mean you are on the hook for thousands of dollars

    (i) The courts have quite a wide range of discretion in interpretation of statuatory damages. Typically a demand letter will quote the top end of the range

    (ii) There are technical issues to do with copyright registration that may (or may not) limit the damages they could get in court - for example: if they registered a large collection of images in one registration, and you infringed only one, it may be a much weaker claim, than if they registered each image individually.

    (iii) There may (or may not) be defenses available to you that can limit or stop damages, e.g. fair use, copyright misuse, laches, etc.

    (iv) There have been cases of people/organizations sending demand letters who don't have valid registrations, or are claiming for a completely different images (they used software to detect alleged infringements, and perhaps the software is buggy), or where they aren't even the copyright holder.

    That's why it's important to look in detail at the claim, do your research, and talk to your own lawyer, before deciding what to do.

    If you get a demand letter, you may find this site useful - ExtortionLetterInfo: Fight Getty Images Settlement Demand Letters ยป Reporting on Getty Images Settlement Demand Letters
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    • Profile picture of the author Lloyd Buchinski
      Originally Posted by Mark Alan View Post

      Right now there is a real racket where people in the image licensing business share their work on social media and or file sharing sites. Eventually some poor webmaster runs across it and ends up putting it on their blog. Soon they get a demand letter notifying them of their infringement and it contains an offer of no further legal action if the webmaster will simply cut a check for $10,000 to the rightful copyright holder. Sadly if the copyright holder takes the webmaster to court the webmaster will very likely lose even if it was a set-up from the get go.
      Known as image extortion. Getty images seems to be enthusiastic about that. Just leave images out as bait for their image search software. There's been one link to a 'getting sued by Getty' in this topic already, but I've read 4 or 5 different pages about it happening to different sites.

      You do want to be careful about borrowing images, which is of course the point of the whole op.

      Originally Posted by SunilTanna View Post

      The courts have quite a wide range of discretion in interpretation of statuatory damages. Typically a demand holder will quote the top end of the range
      That would be likely, and I'd probably be the one to cave in to it with the first email. (Not that I copy images or text, but something could possibly happen with other issues.)

      I've been appreciating your 'no dog in the fight' tendency of yours to look at both sides of issues lately, and add good info to these topics.
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  • Profile picture of the author reboot38
    How does 'fair use' and content creation fit into the mix?

    Take thechive.com for example - they have 100s of 1000s of images posted with only a very small percentage being their own work.

    I'm guessing the fact that most of the images are 'user submitted' probably helps them stay out of dutch. If I remember correctly there's a section in the DMCA that protects website owners from content uploaded by users.

    But then theChive takes submissions via email and uploads those images to the site which blurs the line between users and website owners.

    Thoughts?
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    • Profile picture of the author SunilTanna
      Originally Posted by reboot38 View Post

      How does 'fair use' and content creation fit into the mix?

      Take thechive.com for example - they have 100s of 1000s of images posted with only a very small percentage being their own work.

      I'm guessing the fact that most of the images are 'user submitted' probably helps them stay out of dutch. If I remember correctly there's a section in the DMCA that protects website owners from content uploaded by users.

      But then theChive takes submissions via email and uploads those images to the site which blurs the line between users and website owners.

      Thoughts?
      I don't know anything about this specific site you mention, but generally speaking:

      Just because somebody gets away with, doesn't mean you will. If you see a site that you think might infringe....

      Maybe they have got licenses for the more obvious stuff

      Maybe they haven't been caught yet.

      Maybe they have already had settlements

      Maybe they are being sued, right now

      Maybe they are overseas

      And maybe they can use the DMCA safe harbor provisions to protect themselves - note: there are specific legal requirements you must meet to rely on them
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    • Profile picture of the author Mark Alan
      I was away for a while and was glad to see this thread get a little action in my absence.


      Well user submitted content is what some sites do to get around copyright. If you want to go this route make sure you are very well versed on DMCA procedures. In short you have to provide copyright holders a way to contact you with notices of infringement and you have to remove their content within a certain time frame to maintain your safe-harbor.

      Originally Posted by reboot38 View Post

      How does 'fair use' and content creation fit into the mix?

      Take thechive.com for example - they have 100s of 1000s of images posted with only a very small percentage being their own work.

      I'm guessing the fact that most of the images are 'user submitted' probably helps them stay out of dutch. If I remember correctly there's a section in the DMCA that protects website owners from content uploaded by users.

      But then theChive takes submissions via email and uploads those images to the site which blurs the line between users and website owners.

      Thoughts?
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  • Profile picture of the author reboot38
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    • Profile picture of the author Mark Alan
      Of course you can do that, but it is possible one or more of the people that made those pictures could sue you, and it is problematic because other than withdrawing the book from the market there is no way to correct the infringement after the fact. A book would also provide a paper trail of profits making you a better target than some anonymous website. My advice would be if you don't know who holds the copyright don't publish it. The best way to do it would be to contact the people that made the images and get a written release from them to include the images in your book.


      The other way to do it would be to offer commentary and or criticism of the pictures in question. That way you could claim fair use. However, if you want to go that route I would strongly suggest seeing an attorney that is up on the current limitations of fair use and how much original content of your own you must add to be able to claim fair use.



      Originally Posted by reboot38 View Post

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  • Profile picture of the author geekyfox
    Interesting point about copyright racket... Thanks for the info.
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  • Profile picture of the author Moneymaker2012
    A great topic,
    an eye opener, thanks.
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  • Profile picture of the author danr62
    Yeah, good topic. I often hear so-called experts advising people to just go and grab something from Facebook or Google search and to use those images on their sites or social networks. Or even worse, in ppc/cpm advertising.
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  • Profile picture of the author TerryX
    Good Information! Important to know, the consequences can be big.
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