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By Adultinternetlaw.com.

Okay, class, welcome to Copyright 101, otherwise known as "A Webmaster's Introduction to Copyright Law". Please note that the purpose of this lecture is to comment on general legal principles and to educate. Your teacher is not giving specific legal advice, and nothing herein creates an attorney-client relationship. Should you wish to consult with an attorney, feel free to contact the email address below for a referral.

The basic premise of copyright law is that the owner of an original work has the exclusive right to reproduce the work, to prepare derivative works, to distribute copies, and to display the work publicly. An original work is any creative work that is not copied from someone else. Federal copyright law provides that should someone intrude upon these rights, the owner of the original work may bring an action for copyright infringement.

What does this mean in the simplest terms? Someone who takes, for example, a photograph, has the exclusive right to make copies of the photograph or to display the photograph publicly. He or she can publish the photo in a book, in a magazine, on a web site, in a newsgroup, etc. Once an original photograph is so published, the owner's copyright protection is not extinguished simply because it is now available for view by anyone with access to the medium used. Any person who makes a copy of a photograph that the owner puts on public display commits copyright infringement in doing so. The copyright owner, however, may consent to another's copying of the photograph, or may sell the right to publish the photograph outright.

Under prior copyright law, a copyright notice had to be affixed to the work in order for the work to receive copyright protection (for example: Copyright 2000 by John Doe). As of 1989, the notice requirement has been dropped. Accordingly, one should not assume that if a published work does not have a copyright notice on it, the work is free game to be utilized by anyone in any manner desired. This is an important point that a lot of people miss. You in the back: stop daydreaming and pay attention. To repeat: it is never proper to copy and republish a work owned by another, even if the image does not have a copyright notice on it, unless the express permission of the owner is granted.

Despite the lack of a notice requirement, anyone who does create original works should place a copyright notice on the works. To do so makes it that much easier to prove ownership of the work if another improperly appropriates the work. The work does not have to be registered with the U.S. Copyright Office before a notice is placed on the work - the work is protected regardless of whether or not a registration has been filed. In order to bring an action for copyright infringement of a specific work, however, the work must be registered with the Copyright Office, either before or after the infringement occurs.

The notice also deprives the defendant of making an argument that the infringement was innocent. This is an important point. In a copyright infringement lawsuit, whether or not the defendant knew he was misappropriating the copyrighted work of another is irrelevant. If the judge deems that the image the defendant published is in fact the original work of the plaintiff, the defendant has committed copyright infringement. This outcome holds despite the fact that a third party may have told the defendant that the third party owned the image and that the defendant had permission to use the image. "Strict Liability" applies in copyright infringement situations - either the defendant had permission to publish the images, or he didn't. If he didn't have permission, he loses the lawsuit (assuming the plaintiff proved he did own the work). A defendant's lack of knowledge of infringement, however, may help to mitigate the damages awarded against the innocent infringer.

An illustration may make this clearer. Acme Content Provider gives Wendy Webmistress a license to utilize the content on a particular CD. Unbeknownst to Wendy, Acme Content Provider obtained the images on the CD by downloading photographs off of a newsgroup, without the permission of the owner of the images. In the licensing agreement, however, Acme represents that it has exclusive ownership of the images. Wendy Webmistress then publishes the content of the CD on her Internet web site. Phil Pilfer then copies the photographs, which have no copyright notices on them, off of Wendy's site and publishes them on his own pay site. Paul Photographer sees the images on both Wendy and Phil's sites, and he files a lawsuit against Wendy and Phil for copyright infringement.

Wendy Webmistress claims in her defense that she obtained the photographs from Acme Content Provider, and shows the court the licensing agreement, wherein Acme represented it had ownership of the photos. Wendy is unable to present any evidence, however, indicating that Acme did actually own the photographs, because Acme has no such evidence. Phil Pilfer on the other hand admits that he copied the images straight from Wendy's site, but argues that since the photos had no copyright notice, his actions were justified. Paul Photographer produces negatives for all of the images in question.

Result? Paul Photographer prevails against both Wendy and Phil. Paul proved that he "created" the photographs, and no evidence was presented indicating that Paul had given anyone else permission to use the images. Even though Wendy had a good-faith belief that she was entitled to use the photographs, she still loses, because she can't prove that Acme owned the photos, or, conversely, that Paul did not own the photos. Phil Pilfer also loses, as he has no right to use the images even though there was no copyright notice on the photos.

In awarding damages against the defendants, the judge may be a little lenient with Wendy, since she was unaware of any infringement. Phil on the other hand gets no leniency, since he reasonably should have known he had no right to download and publish the photos.

So what about poor Wendy Webmistress, who relied upon Acme Content Provider's representation that it owned the photos when she bought the CD? Wendy can now file a lawsuit against Acme, seeking to recover the damages that she was ordered to pay to Paul Photographer in the first action, since Acme had misrepresented its ownership rights.

In the second lawsuit, Acme argues that it had a right to sell the images, since Acme found the photos on a newsgroup, where the images were in the "public domain". Result? Wendy wins. Acme is wrong in its belief that anything posted on a newsgroup is "fair game" to be utilized by anyone in any manner. Acme had no right to represent to Wendy that it owned the photographs. Paul Photographer can also file a lawsuit against Acme, since Acme's downloading of the images off of the newsgroup amounts to copyright infringement.

This seems like a lot of trouble for Wendy Webmistress, doesn't it? She thought she was acting legally with everything she did, but she was forced to suffer through two lawsuits because the content provider was mistaken or lied about its ownership interest. And even though she prevails in the second action, Wendy breaks even monetarily (at best) and loses the content she had on her web site.

What can a webmaster do to protect against such a course of events? Everyone repeat after me: indemnity provision.

Whenever obtaining content from another, whether the content is bought, leased, borrowed or given, the webmaster must insist that an indemnity provision be contained within the content agreement. The indemnity provision should indicate that if the webmaster were brought into court under a claim that the content belongs to a third party, the content provider would defend and indemnify the webmaster in that action. This means that any legal fees and any award against the webmaster will be borne by the content provider. The legal fees alone may amount to tens of thousands of dollars. With such a provision in place, it is in the best interests of the content provider to make certain that it has legal right to any content it distributes. The webmaster, on the other hand, is comfortable in knowing that even if the content provider lies or is mistaken about its right to provide the content to the webmaster, the content provider will ultimately be held responsible for that lie or mistake.

In summary:
    1. It is never appropriate to use the work of another without permission, even if you don't charge money to surfers to view the images;
    2. A work receives copyright protection whether or not there is a copyright notice on the work;
    3. The public display of a work does not make the work fair game for copying or republishing by anyone but the owner;
    4. Only the true legal owner of a work may grant another permission to use the work;
    5. A creator of a work should always place a copyright notice on that work;
    6. Works that the owner wishes to protect should always be registered with the U.S. Copyright Office;
    7. Lack of knowledge of infringement and lack of intent to infringe are not defenses to copyright infringement;
    8. Always insist upon the inclusion of an indemnity provision in favor of the webmaster in content licensing agreements.

Any questions? Class dismissed.

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