The 7 Deadly Myths of Internet Copyright
Copyright © 2000 David L. Amkraut. Reproduced with permission.
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The 7 Deadly
Myths of Internet Copyright
by
Attorney David L. Amkraut
WARNING: The following is a summary of important information
regarding the use and misuse of photos on the Internet.
It is not specific legal advice. Copyright is a specialized
field of law, and there are sometimes exceptions to the
rules. If you have a specific copyright concern, you should
consult a lawyer with expertise in copyright issues concerning
the use and misuse of photos on the Internet.
AN
EXCELLENT RULE OF THUMB: If you do not have specific permission
(preferably written!) from the owner of a photo, you cannot
legally display it on a website, post it to the Usenet,
copy it, send it around by Email or other means, make photos
derived from it, sell it, or otherwise exploit it.
MYTH # 1.
"I do not need to register my photos with
the copyright office, because I 'automatically' have copyright
at the instant I snap the shutter."
This
is a serious misunderstanding of the law. Yes, you do own
copyright without registration. BUT if you want to protect
your photos from theft, you should register them with the
Copyright Office, before you publish or distribute
them. If you register your photos, you gain powerful remedies
against infringers. These can include:
* Civil
penalties ("damages"). The pirate is on the hook for up
to $150,000 for each misused photo;
* Attorney's
fees: the infringer has to pay your attorney's hourly fees
and all costs such as copies, postage, filing fees, etc.
* Restraining
orders, Preliminary and Permanent Injunctions against the
infringer, and even seizure of the pirate's computer equipment
in some cases.
An
important practical point is that if the photos are registered,
you might find an attorney to take the case on "contingency,"
which means he takes the risk of gambling on a win, rather
than you paying him by the hour. Faced with a lawsuit over
registered images-and an injunction which would likely mean
being put out of business forever-many pirates will quickly
settle up and pay.
By
contrast, if you did not register your photos, it
is almost impossible, as a practical matter, to nail an
infringer. To get any damages at all, you have to prove
how much the pirate made off your particular photos, or
exactly how much money the theft cost you. Either is almost
impossible to prove. And you do not recover attorney's fees,
so the cost of the lawsuit would far outweigh your possible
recovery.
So-if
you have registered your work, you are in good shape to
"convince" an infringer to stop, or to successfully sue
him. If you have not registered, you probably cannot do
anything about pirates.
MYTH # 2.
"I
got the photo off the Usenet (newsgroups) so it is in the
'Public Domain'."
The
above shows a misunderstanding of the term "Public Domain."
The term has the specific legal meaning that no one controls
the photo; anyone can use it as he wishes. There are two
ways for a photo to fall into in the public domain.
* the
owner clearly gives up his rights, such as by signing a
document saying, "I now give up my copyright and irrevocably
place this work in the public domain." OR
* 75
Years have passed since the owner died.
When
an owner posts a photo to Usenet, he does not lose
his rights, any more than publishing the photo in a magazine
or on his own website would. When an owner posts to Usenet,
the only license he gives is for replication and transmission
within the Usenet system. There have been many copyright
cases involving websites which got their content from the
Usenet-and courts have awarded fines in the millions of
dollars against the pirates.
In
addition, photos are often posted to Usenet against the
owner's wishes. Eg., the many infringing copies of work
owned by Playboy, Penthouse, and top photographers. Such
posts are themselves violations of copyright. Obviously
if the original post to Usenet was illegal-as many are-subsequent
copying and misuse is equally illegal.
In
short, taking photos from Usenet and using them elsewhere
such as on a website is copyright infringement, and you
risk the severe penalties of piracy.
MYTH # 3.
"My [website use, posting, whatever] is 'Fair Use' so I
haven't violated copyright"
"Fair
use" is a legal "defense" to copyright. It was created to
allow use of copyright material for socially valuable purposes
such as commentary, parody, news reporting, education and
the like, without permission of the copyright holder. A
typical instance would be a brief quotation from a book
as part of a book review. Uses allowed by "Fair Use" are
normally a small part of a work and include an author credit
and attribution. Fair uses are generally for non-profit
purposes.
Fair
use is rarely allowed where the use competes directly with
the work or harms its commercial value.
Most
fair use situations involve text. It is difficult
to imagine any situation involving the Internet where someone
copying a photo could claim the fair use defense. In typical
infringement activities, such as unauthorized posting to
Usenet, stocking websites from Usenet trolling, scanning
from Playboy magazine, or simply copying from other websites-the
fair use doctrine does not apply. Because the pirate is
taking 100% of the work, not acknowledging the creator,
hurting the work's market value, competing directly with
the creator or licensed users of the work, and for other
reasons.
So
if you are a photo pirate, do not even think about the fair
use doctrine. In your context it is a myth. Your lawyer
will laugh at you, and the judge might not have a sense
of humor where thievery is concerned.
MYTH # 4.
"If it does not have a copyright notice on it, it is not
copyrighted-so I can use it freely."
This
myth results from past law, and misunderstandings of past
law being passed along. In virtually all cases, photo copyright
is valid whether or not there is a copyright notice.
A copyright
notice has two main functions. First, it warns off at least
a few would-be pirates that the work is not to be stolen.
Second, it has some useful legal effects, because it prevents
the infringer from claiming he was making an "innocent"
mistake.
The
copyright notice may be omitted because the owner or legitimate
user does not want to deface the photo, or even because
an intermediary infringer has deliberately removed the notice.
(Removing a copyright notice is itself a serious legal violation.)
And of course, if someone has illegally scanned and posted
Playboy pictures or the like, there will not be a notice.
However, the absence of a copyright notice does not change
the fact that a work is copyrighted.
We
are reminded of an anecdote about a thief who stole a bicycle
from a public place. When caught by the owner, the thief
protested, "I didn't know that it was your bike."
Replied the owner, "You sure as blazes knew that it wasn't
yours!"
A proper
notice has the © mark, or word "Copyright" or abbreviation
"Copr."; the year, and the name of the owner. For example,
if this author took and published a photo in 2000, it might
be marked "© 2000 David L. Amkraut" or "Copyright 2000 David
L. Amkraut" or "Copr. 2000 David L. Amkraut." You can add
"All Rights Reserved" if you want-it has no real significance
in the U.S. and most countries but has a bit in several
3rd world countries.
The
commonly-seen parenthesis "(c)" instead of the proper copyright
mark "©" has no legal significance and may invalidate the
notice. So, if you do not see a copyright notice, do not
assume the photo is yours to use; someone owns copyright
and you have to get his permission before using it.
MYTH # 5.
"If
I am not making money off the photos, I am not violating
copyright."
Copyright
infringement is not excused if you are doing it for some
reason other than profit, such as malice or the collectivist
notion that an individual's creative work "should be free
for all to share." These are the typical motives of some
people who post thousands of Playboy photos to newsgroups.
The court may fine you more or treat you more harshly if
you have a profit motive. But you can still get punished-badly-if
your actions are harming the commercial value of the infringed
pictures. Or if you infringed "knowingly" or "willfully."
Or if the judge thinks it appropriate to "send a warning"
to discourage other would-be infringers.
Violating
copyright is illegal whether you do it for money, love,
competitive advantage, malice, or any other reason.
MYTH # 6.
"I'll
win. I have a lot of rights in court. And they can not do
much to me anyhow."
Very
wrong. A pirate is far more likely to be sued in civil court
than to be arrested and criminally charged. As a civil defendant
you have far fewer rights than in a criminal case. The Plaintiff
only has to convince the judge that he is more right than
you. He does not have the heavy burden of "beyond a reasonable
doubt" as in a criminal case.
A copyright
Plaintiff does not have to prove much to win. He just needs
to show two things: (1) Ownership of the copied work; and
(2) Copying or other misuse by the Defendant. He proves
the first by showing his Certificate of Registration from
the copyright office. He proves the second by showing his
photos and your infringing copy side-by-side. End of story.
And
a copyright suit, in federal court, moves surprisingly quickly.
You could be slapped with a restraining order immediately
after the suit is filed, meaning an end to your infringements
under threat of arrest for contempt of court. For technical
reasons having to do with the copyright law and federal
rules of procedure, final judgments may be reached within
a few months.
Perhaps
you think you can charm or fool a jury? If the facts and
issues are clear-and they generally are in such cases-the
judge will decide the case. You will never see a jury.
Think
you can fight it? Talk to a copyright specialist attorney
and think of paying by the hour for what will probably be
a hopeless defense. And do not forget, Mr. Pirate, that
when you lose you will also be stuck for the Plaintiff's
legal fees.
Can
they "do much" to you? Copyright penalties have been called
"nuclear." Penalties of up to $150,000 per photo are permitted.
And an injunction which, depending on your business method,
may put you out of business forever, is likely.
Do
not assume you can successfully defend a legitimate copyright
case, especially when registered photos are concerned. As
a rule of thumb, if you get caught, better try to settle
cheap and quickly.
MYTH # 7.
"Copyright
violation is not a crime-it is just a quarrel between two
businessmen."
Wrong.
Copyright violation is a crime as well as a civil wrong.
Read the splash screen disclaimer at the start of any video
you rent if you think otherwise. Or talk with an FBI agent.
Most of the copyright cases we see are federal felonies,
as well as civil law violations.
In
addition to the severe civil and criminal penalties of copyright
violations, the same acts leave the pirate open to additional
civil and criminal charges, for wrongdoing like "unfair
competition," and violation of the "No Electronic Theft"
law and other statutes.
We
are not saying that a pirate can expect to be arrested by
FBI agents for his theft of photos. But it is a possibility,
especially if the FBI responds to demands for action against
Internet pirates and begins pursuing such cases more actively.
And especially if the pirate is infringing on a large scale
or infringing work owned by a large corporation.
------
SUMMARY
Unless
you have specific permission, you can not distribute, copy,
publicly display, sell, or otherwise exploit or commercially
use someone else's photos.
Photos
posted on newsgroups are not yours to use. They are not
in the "public domain." In fact, with extremely rare exceptions,
no recently-created photo is in the public domain.
The
"Fair Use" doctrine almost never excuses infringement of
a photograph, particularly where the infringing use is commercial
or where it hurts the market for the photo.
Copyright
is normally valid with or without a copyright notice.
Copyright
infringement is copyright infringement regardless of the
infringer's motive.
People
who infringe photographs are likely to be crushed in Court,
and even have their businesses closed down.
Copyright
violation may be treated as a serious crime, as well as
a civil wrong.
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ABOUT THE
AUTHOR
David
L. Amkraut is a Los Angeles-based Attorney at law. His practice
emphasizes cutting-edge Internet-related copyright matters,
especially cases involving photographs. He was attorney
for the Plaintiffs in Louder v. CompuServe, a class-action
case involving publication of 930 photographs of models
by the 2nd-largest Internet Service Provider in the world.
Recently he served as counsel in KNB v. Matthews, an important
case about the relationship between copyright and the "Right
of Publicity." He has repeatedly obtained judgments in the
hundreds of thousands of dollars and represents some of
the best-known glamour photographers against web sites which
infringe their work.
CONTACT
INFORMATION
Email:
CopyrightFacts@Earthlink.net
Fax: (818) 637-7809
Mail:
Law Offices of David L. Amkraut
2272 Colorado Blvd., #1228
Los Angeles, CA 90041
-------------------------------------------------------------------------
©
2000 David L. Amkraut - All rights reserved. Permission
granted to reproduce this document provided the document
is reproduced in its entirety, including the information
about the author and his contact information, and this copyright
notice. Quotations for review, reportage, etc. are permitted
as long as there is proper attribution and full contact
information as follows:
"From
The 7 Deadly Myths of Internet Copyright, by Los Angeles
Attorney David L. Amkraut
Email:
CopyrightFacts@Earthlink.net
Fax: (818) 637-7809
Law
Offices of David L. Amkraut
2272 Colorado Blvd., #1228
Los Angeles, CA 90041"
