Copyright Law

Case Study intro

Playboy vs Sanfilippo Playboy sues Francesco Sanfilippo for copyright infringement after Sanfilippo posts pictures from Playboy's magazines and other copyrighted material on the web and offers them for sale. Playboy of course wins this lawsuit and what we can learn from this is:

Under U.S. Copyright Law it is illegal to use someone else's photographs without permission and post them to your website
By posting copyrighted images on the web you are exposing yourself to expensive lawsuits. The nature of the internet allows for anyone to view your website and see your images.
If someone is using your copyrighted material you can successfully sue them and collect damages.
If you are using copyrighted material, purposefully or accidentally and you are presented with a demand letter you should immediately comply because if you don't you can open yourself up to much higher damages as a result of continuing to use the copyrighted material after being informed of the infringement.

The Basics

Copyright is designed to protect "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived reproduced or otherwise communicated, either directly or with the aid of a machine or device."
Specifically:

Literary Works
Musical Works, including any accompanying words
Dramatic Works, including any accompanying music
Pantomimes and Choreographic works
Pictorial, Graphic, and Sculptural Works
Motion Pictures and other Audiovisual Works
Sound Recordings
Architectural Works

Rights of The Copyright Owner

The copyright owner has the exclusive rights to reproduce, rewrite, sell, distribute and display written or graphical works. In the case of performed works, such as music, plays and movies, the copyright owner has the rights to publicly perform the works and transmit them via radio, TV or internet.

Most commonly an infringer will reproduce the work in whole. However an often overlooked infringement is producing derivative works. The copyright act gives broad definitions to derivative works and if the final product is recognizably similar to the original an author may be infringing.

How to get copyright protection

All you need to do is create an original work and you have copyright protection under the law. However there are certain advantages to registering your work with the US copyright office

Establishes a Public Record of the Work
REgistration is necessary for an infringement suit
IF made before or within five years of publication, registration provides prima facie evidence in court
If registration of the work is made within three months after publication, or before infringement the copyright owner can receive attorneys fees and statutory damages
Provides registration with the US Customs Service for protection against importation of illegal copies of the work.

Certain restrictions to the copyright law include, works made for hire (works made by an employee under contract) and fair use doctrine

Creating a Copyright Friendly Website

Use a Good Website Development Contract

Preferably drawn up by lawyers on both sides a good contract includes the scope of the website(s) to be created, deadlines, fees, and ongoing maintenance obligations. This contract should contain a clause about copyright ownership. If the webmaster is an independent contractor he or she will retain rights to the material in the website unless a "work made for hire" clause is included in the contract. Typically this could go something like this:

"All copyrighted works created by the Developer and delivered to the Company shall be deemed "works made for hire" as that phrase is defined in section 101of the United States Copyright Act, 17 U.S.C. § 10, and used in 17 U.S.C. § 201, on behalf of the Company, and Company shall own all right, title and interest, including the worldwide copyright, in and to such materials."

Don't Publish or Allow Others to Publish Infringing Content On Your Website

Don't put content on your website unless you know who wrote it and have their permission to use it. If there is any question here the best route is to not publish the questionable content.

Under the Digital Millennium Copyright act you may be help liable for what others post on your website if you have the ability to moderate it and choose not to, profit from the infringing work or aid in the infringement.

Protect your content by posting proper copyright notices on your website

Include the full and correct name of the copyright owner.

Make sure the first year of publication is correct

Be sure the copyright notice is placed properly. The copyright act states it this way: "The notice shall be placed in such manner and location as to give reasonable notice of the claim of copyright" for web sites this is commonly at the foot of every page.

Register your work with the US Copyright office

Check out circular 66 this details the process of registering on-line works with the US Copyright Office including, how to, application and fees. You must submit an entire reproduction of your website with the application either on computer disk or a full printout, audio or videocassette.

The Digital Millennium Copyright Act (DMCA)

The Digital Millennium Copyright Act was passed into law by President Clinton in October 1998. Created in response to two treaties passed by the World Intellectual Property Organization, the Copyright Treaty, and the Performances and Phonograms Treaty. There are five titles to the act which are:

Title I, the "The WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998" implements the WIPO treaties.
Title II, the "Online Copyright Infringement Liability Limitation Act," Limits the liability of Online Service Providers for copyright infringement under certain activities.
Title III, the "Computer Maintenance Competition Assurance Act," creates an exemption for making a copy of a computer program by activating a computer for the purposes of maintenance or repair
Title IV contains six provisions which cover the functions of the copyright office, exceptions for libraries, "ephemeral" recordings, web casting of sound recordings and applicability of collective bargaining agreements.
Title V, the "vessel Hull Design Protection Act" creates a new form of protection for vessel hulls.

For the purposes of internet law the most important provisions are the first two titles. The first title covers technological protection and copyright management systems. This makes it illegal to circumvent or otherwise disable systems that copyright owners put into effect to prevent copying and redistribution of their copyrighted materials. Known as Digital Rights Management these include all the ways that authors and publishers track, manage and prevent copying of their digital works. These can be digital watermarks, key codes, copy protection found on DVD's and Music CD's and encoding used to prevent copying of digital material.

The second title limits the liability of online service providers when it comes to infringement. This title allows an ISP to designate a representative to receive infringement notices. Once the representative is located, either on the ISP's website, in their TOS or through the list of designated agents filed with the US Copyright Office you must provide some detailed information in writing to the representative. Including:

a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonable sufficient to permit the service provider to locate the material
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available and e-mail address at which the complaining party can be contacted.
a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law
a statement that the information in the notification is accurate. and under the penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed

Once the service provider receives this notification they must expeditiously remove the offending material. Then the service provider can not be liable for legal actions as long as the following conditions are not present

does not have actual knowledge that the material or an activity using the material on the system or network is infringing
in the absence of such knowledge, actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent, or
upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to, the offending material
If it does not receive financial benefit directly attributable to the infringing activity, in a case where the service provider has a right and ability to control such activity, and
upon notification of claimed infringement..., responds expeditiously to remove, or disable access to, the material that claimed to be infringing or be the subject of infringing activity

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