NEWSGROUP CONTENT: PROTECTED PROPERTY OR FAIR GAME?

Due to recent postings on YNOT's chat boards, it has become painfully obvious that there is widespread confusion among webmasters as to a number of copyright issues. Questions have arisen regarding the legality of appropriating for one's own use content posted on a newsgroup, content contained on someone else's website, or content published in a magazine. For example, some have opined that once an image is posted on a newsgroup, it has become part of the "public domain". They argue that newsgroup images are fair game for use by anyone, in any manner, without compensation to the owner of the image and without the owner's permission. The following is intended to educate webmasters on this topic. The other topics will be addressed in later issues. Please note that the following is for informational purposes only, and is not and should not be considered legal advice.

A recent California Court of Appeals case, published on February 17, 2000, is informative. In KNB Enterprises v. Matthews, plaintiff KNB owned the rights to a number of sexually explicit photographs, which it published on its own website. To promote the website, KNB posted portions of its content library on Usenet newsgroups, where anyone who had access to the Usenet could view those photographs for free. Defendant Matthews copied photographs posted on the Usenet, including images posted by plaintiff KNB, and published them on his own commercial website, without plaintiff's permission.

Defendant Matthews argued that anyone with access to the Usenet could view the images posted by plaintiff KNB on the Usenet without charge, and could download those images onto their own computers. Matthews claimed that by his copying those photographs and publishing them on his own website, albeit without permission, he was simply providing a means for people to see those images who otherwise did not have access to the Usenet. Of course, Matthews argued that by taking these actions, he did not infringe on plaintiff's ownership rights in the images, as the pictures were already in the "public domain" when the appropriation occurred.

The primary focus of the court was to determine whether Federal copyright law preempted the adjudication of the case in a California Superior Court applying California State law. Nonetheless, the court made specific determinations that are instrumental in answering the questions above.

Most importantly, the court held that simply by placing photographs in a newsgroup, the owner of the images is not placing them in the public domain or permitting their unauthorized commercial use, display, or publication. Though not considered directly by the court, one can conclude by inference that the unauthorized posting of photographs by a copyright infringer on a newsgroup does not exonerate any subsequent individual who appropriates those images off the newsgroup for his own use. The taint trickles down with each subsequent unauthorized use.

Further, California has enacted a statute to protect against such appropriation. California Civil Code Section 3344 provides that any person who knowingly uses another's photograph in any manner, without the owner's consent, shall be liable to the owner in the minimum amount of $750 per use.

The $750 amount may be used as a default penalty where it is difficult to ascertain what damages were actually incurred by the improper usage. Where damages can be proven, however, an award may be exponentially greater. Courts will take into consideration the income that was earned by the offending party in posting the ill-gotten images on one's own website, both through new memberships and recurring fees. Also taken into consideration is the money saved by the defendant in appropriating the images. For example, the court may look at both time and money saved in scouting for and casting models, photographer fees, model fees, film and processing, studios, photo scanning and digitizing, and other direct and incidental expenses.

Of course, this specific statute pertains only to California, but as "Internet law" continues to develop, it is likely that harsh penalties such as those under the California statute will become the norm rather than the exception. Additionally, since the Internet is all-pervasive, it is foreseeable that an injured party will seek to bring an action against a copyright infringer in whichever state has the toughest laws, since the infringing publication may presumably be viewed by anyone with a computer in any state. In any event, the KNB Enterprises court further noted that defendant's unauthorized publication of plaintiff's photographs constituted an infringement of plaintiff's rights under Federal copyright law, in addition to violating California law.

Bottom line: It is never appropriate to copy images off of a newsgroup (or off any medium, for that matter) without permission and publish those images in any manner. The fact that the person who posted the images on the newsgroup may have done so without permission does not excuse any subsequent misappropriations. By copying newsgroup images without permission, a webmaster is susceptible to harsh penalties, whether state or Federal law is applied.

---