Legalities 9: Online Works: Registration and Copying
Q. I have 20 years worth of artwork I have created – most will never be seen unless someone looks through my pile of sketchbooks. I’ve assembled artwork and comic strips on my website portfolio. Most of these are works in progress (especially the strips).
First question: How important is it I register these for copyright? Since they develop and change, at what point in the creation process should I register them?
Second question: Though I have installed the usual files to prevent a search engine from cataloging my site, I know it has been done and will be done in the future. What are my rights in protecting my artwork from being freely available to anyone who can access Google, Alta Vista, etc?
A. It is important to get copyright registration for any images that you are making available to the public, including especially works posted on your website. As you’ve noted, online images are particularly easy to copy and often are copied.
This includes works in progress, because once those works are publicly available they are subject to being copied. Under the copyright law any image is protected by copyright and eligible for registration as soon as it is created – it doesn’t matter that you may continue to refine the images. So you should register the image in the first version that appears online.
You can register later versions as derivative works based on the first one. The safest policy is to register each version that you share with the public, online or otherwise, unless the revisions are trivial. Images that remain only in your sketchbooks need not be registered because as a practical matter, they are not vulnerable to infringement.
Your legal rights when images are copied online depend upon the type of copying that occurs. Your copyright entitles you to stop unauthorized copying and use of your images for most commercial purposes. That would include, for example, copying and use of your cartoons by another artist, or an entity such as a newspaper or design firm.
The exception is “fair use,” which is unauthorized copying that is legally excused under certain circumstances, including for example, use for parody or educational purposes. One court has held that low-res thumbnail collections of images created through search engines qualify as fair use. The court reasoned that this was essentially providing a directory service to consumers rather than being a commercial infringement. However, reproduction of the individual images in high res online constituted infringement.
To be proactive about online copying,
- Register your copyright in your online images. You can register the entire website under one registration. See Legalities 2.
- Put a prominent copyright notice on your site, on every page where artwork appears. Consider watermarks or notices directly on the images.
- If you discover an online copy of your work, try using the provisions of the DCMA to get it taken down quickly (see my answer to the next question below).
You or your lawyer can also send a cease and desist letter to the infringer. If you already have copyright registration for the infringed image when you discover the copying, you are entitled to collect statutory damages and attorneys fees in the event you win in litigation. Even if you can’t afford to actually litigate, this possibility gives you stronger bargaining power to get the image taken down, and perhaps recover some monetary damage in settlement of the infringement claim. See Legalities 1.
Q. I was checking a news web the other night and came across one of my drawings being used without credit. The site lifted a drawing off of my website. I sent them an email but the webmaster has chosen to ignore me. What are the odds of me coming across this plagiarism with the millions of web sites in existence?!!
Anyway, should I just ignore it like the webmaster has ignored me? What action should I take?
A. This looks like a blatant taking of your image, which is classic copyright infringement. Unfortunately, such online plagiarism is not unusual. Because it is so easy to copy things online, I see this happen a lot.
Legally, you have copyright infringement claims against both the website owner and the hosting Internet Service Provider (ISP). The website owner is liable for willful infringement, as he presumably knew that he was copying your image and posting it on his own site. The ISP is liable for infringement because it is enabling the infringing image to be seen online.
I don’t advise that you just ignore this infringement. Even if you don’t get cooperation from the webmaster, you can take steps to get the infringement removed under the new law called the Digital Millennium Copyright Act (DMCA). The DMCA established very specific “notice and take-down” procedures, under which an ISP can have immunity from infringement if it takes down the infringing content when you send them notice in a particular way.
To find out who owns a website and who hosts it, try doing a “whois” search at the Network Solutions site. The search results will give you the name of the domain name registrar, and, if available, the identity and contact information for the owner of the web site (“Registrant Info”) and the ISP (“Technical Info”). If not, you can try going to the listed registrar’s website to do a search.
With that information, the next step is to find out if the ISP has a registered agent to receive an infringement complaint under the DMCA (most service providers do). The law requires that these agents be registered with the Copyright Office in order to qualify for the notice and take-down immunity. They can be searched online at the Copyright Office web site (go to www.copyright.gov, click on “Online Service Providers” under “Search Copyright Records,” then click on “directory of agents”). Most ISPs also list their agent on their own site, along with a step-by-step explanation of how to follow the DMCA complaint procedure. For example, see Comcast’s Acceptable Use Policy at http://www.comcast.net/terms/use/. You can also look up the statute itself on the Copyright Office site (go to “Online Service Providers” and click “Digital Millennium Copyright Act,” then look for Section 512©); however, the statutory wording is a bit more obtuse. Under these procedures, the ISP is required to take down the infringing material when duly notified by the copyright owner.
If you are not able to find a registered agent for the ISP on the Copyright site, that means the ISP will not be eligible for immunity from copyright infringement under the DMCA. However, you or your lawyer should still write a “cease and desist” letter to the ISP demanding removal of the infringing web page. Most ISPs will comply with such cease and desist letters in order to avoid a copyright infringement lawsuit
You can also contact the registrar for the website’s domain name. While the domain name registrars don’t have direct control over the operation of their registrants’ websites, most have policies in their registration agreements which prohibit the registrants from using their domain names to infringe the rights of others. So you can tell the registrar that the website is infringing your copyright in violation of its policy, and ask it to take corrective action.
Before you contact the ISP or registrar, you might want to try one more communication with the website owner, this time warning him that if he does not respond, you will have to take further action against him and his ISP for copyright infringement. You (or your lawyer) could demand that the image be removed immediately, or you could demand a license fee for continued use of the image on his site (if that would be all right with you). If he still doesn’t respond, you can contact the ISP and demand that they take it down.
Q. A children’s magazine has commissioned me to write and illustrate an article on the Dragon Boat Festival. I would like to submit some photographs with this article, however, the only photographs I could find were on websites. Are these pictures copyrighted? And if they are, how do I go about requesting permission to use them?
A. Photographs are copyrightable works which do have full copyright protection from the moment they are created. Displaying a photograph online doesn’t change its copyright status (notwithstanding some myths that everything online is in the public domain). So you should always assume that photographs online are copyrighted, unless you see a clear disclaimer to the contrary. (The exception would be very old photographs for which copyright has expired.)
To request permission to use the photographs, contact the webmaster on the site where you found them. Ask for referral to the copyright owner of the photographs (usually this is the photographer, unless she assigned her copyright to someone else, such as the website owner or the original publisher of the photos). What you are looking for is a limited usage right (or “nonexclusive license”) to publish the photographs as part of the article.
You might also enlist the magazine’s help in this process. Some publishers have personnel who routinely work on getting usage rights.
Legalities is a service mark of Linda Joy Kattwinkel. © 2004 Linda Joy Kattwinkel. All Rights Reserved. The information in this article is provided to help you become familiar with legal issues that may affect graphic artists. Legal advice must be tailored to the specific circumstances of each case, and nothing provided here should be used as a substitute for advice of legal counsel. Linda Joy Kattwinkel is an attorney, painter and former graphic artist/illustrator. She practices intellectual property law, arts law and mediation for artists with the firm Owen, Wickersham and Erickson in San Francisco. She can be reached at 415-882-3200 or .
An archive of previous Legalities articles is available at Linda Joy’s website.
- Legalities 10: Making Greeting Cards from Photographs; Copyright for Old Works; Publishing Contracts; Agents
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