Protection Compilations which include public domain materials questions

[webscribbler]

What is the name of your state (only U.S. law)? North Carolina

Hello and thank you for making this resource available.


How hard is it to prove infringement on a compilation if the compilation includes a mixture of public domain works and original materials? The point of my site is sharing the individual images with folks who could make use of them but my site includes a clear copyright notice that acknowledges the individual images are in the public domain but the compilation and text are not.

If the actual infringement was done by a volunteer in a larger organization and I've sent a DMCA to that organization, do they now become liable for the infringement? (The organization and their site are US-based, the volunteer is not.)

If the site using my stolen work is self-hosted does that change the safe harbor provisions in any way?

If the infringer has been effectively through their actions condoning similar infringements on a number of other personal websites and Flickr, are they more liable than a typical community-content type site? (They even support a particular software tool for scraping content on Flickr.)

Once a DMCA has been sent, how long should I wait before contacting the infringer directly or hiring a lawyer?

 

[quincy]

What is the name of your state (only U.S. law)? North Carolina
How hard is it to prove infringement on a compilation if the compilation includes a mixture of public domain works and original materials? The point of my site is sharing the individual images with folks who could make use of them but my site includes a clear copyright notice that acknowledges the individual images are in the public domain but the compilation and text are not.

If the selection, collection and arrangement of the pre-existing material is infringed and/or original and creative text is infringed (the copyrightable part of your compilation of public domain materials), it should be no harder to prove infringement on these creative aspects than it would be with any copyrighted work. Have you registered your compiliation?

If the actual infringement was done by a volunteer in a larger organization and I've sent a DMCA to that organization, do they now become liable for the infringement? (The organization and their site are US-based, the volunteer is not.)

If a volunteer in an organization is infringing on the protected aspects of your compiliation but the organization has no involvement in the infringement itself (is just hosting the material on their site), it would be the volunteer who could be held liable. If the infringed material was published on an organization-based website by the volunteer, and the organization receives a takedown notice and does not remove the infringed material, then the website could be held liable as well, however. By not removing the infringed material, they are choosing not to take advantage of the safe harbor offered under the DMCA.

If the site using my stolen work is self-hosted does that change the safe harbor provisions in any way?

It could. If it is self-hosted, but the infringing content is provided by a third party, the web host will not (generally) be held liable for infringement - if, upon receipt of a DMCA notice, they remove the infringed material. If they helped contribute to the infringing content or encouraged the posting of the infringed content, they can be held liable for copyright infringement along with the party posting it.

If the infringer has been effectively through their actions condoning similar infringements on a number of other personal websites and Flickr, are they more liable than a typical community-content type site? (They even support a particular software tool for scraping content on Flickr.)

It depends on all facts.

Once a DMCA has been sent, how long should I wait before contacting the infringer directly or hiring a lawyer?

A site will remove the infringed material upon receipt of a DMCA notice (if they wish to take advantage of the safe harbor provision) and the site will forward the notice of infringement on to the supposed infringer. The supposed infringer has the opportunity to dispute your claim of infringement by sending a counternotice to the site - see 17 USC 512(g)(3). Upon receipt of a counternotice, your material is returned to its original place online unless you notify the site within 14 days that you have filed a lawsuit against your infringer.

You may want to sit down with an IP attorney in your area to discuss your compilation more completely.

Good luck.

 

[webscribbler]

Thank you for your reply.

I have not registered the compilation. It has changed since the original theft occurred - more materials have been added, the original materials would have very few, if any edits from when they were scraped. Does it matter that the compilation has changed and that I would be filing on a larger work than what was taken?

Should I begin working on registering the compilation on my own or do you think I need a lawyer's assistance for that as well?

 

[quincy]

Thank you for your reply.

I have not registered the compilation. It has changed since the original theft occurred - more materials have been added, the original materials would have very few, if any edits from when they were scraped. Does it matter that the compilation has changed and that I would be filing on a larger work than what was taken?

Should I begin working on registering the compilation on my own or do you think I need a lawyer's assistance for that as well?

Is your compilation a work in progress, then? If you are adding to and changing around the arrangement of or selections in your compilation, it could be difficult to prove infringement on anything but your original text (or illustrations).

For more information on compilations, and the copyrightable portions of a compilation when using public domain materials, you can check out 17 USC Section 101.

It is generally not necessary to have an attorney's assistance in registering the copyright in a work. You can go to http://www.copyright.gov for more information on registering a work.

Good luck.

 

[webscribbler]

The work in question is a website. By it's nature, new materials are added constantly as without regular updates it would sink in Google search results. The organization of things does change now and again from the general to the more specific. For example if there's only one picture of a dalmatian, it might be added to the dogs category but once there's several dalmatian pictures they would get their own subcategory. The overall structure/organization changes very little other than that.

 

[quincy]

The work in question is a website. By it's nature, new materials are added constantly as without regular updates it would sink in Google search results. The organization of things does change now and again from the general to the more specific. For example if there's only one picture of a dalmatian, it might be added to the dogs category but once there's several dalmatian pictures they would get their own subcategory. The overall structure/organization changes very little other than that.

Oh. Okay. A website or web page can be protected under copyright laws and be registered (see http://www.copyright.gov/circs/circ66.pdf). But the layout or design is not copyrightable. You may find some of what is on your website can be protected under trademark laws.

If you are organizing or arranging your collection of public domain works in anything less than an original or creative way, the collection will not necessarily be copyright protectable, either. For example, compiling public domain material on dogs and separating the dog material into breeds alphabetically will be neither creative nor original enough to qualify for protection. New and creative text to go along with the material would be. You can search online for Feist Publications Inc v Rural Telephone Service Co, 111 S.Ct. 1282 (1991) for the Supreme Court's look at what makes a compilation original and creative enough to be copyrightable.

Because a website can incorporate or display a lot of different media (for example, public domain films, photos and artwork), your selection and arrangement of these can have creative aspects that are copyrightable, even when the materials themselves are not - and it will be the unauthorized uses of these creative aspects that could be considered infringement on your rights.

If your compilation is, essentially, a database with specific material compiled for easy access, the data (unless original to you) will not be protectable but your selection and organization of the material can be. For more information on database protection, you can look for online access to Assessment Technologies of WI, LLC v WIREDData, Inc, 350 F.3d 640 (7th Cir 2003).

You can, therefore, register your website and the creative aspects of your compilation for greater copyright protection, providing you with the ability to collect statutory damages should your work be infringed.

The Copyright Office website is: http://www.copyright.gov. Good luck, webscribbler.

 

[webscribbler]

I hope I can ask one more question related to this issue....

If the theft does not include the organizational structure, does that in any way negate my ability to argue infringement of a compilation?

It would seem to me the organization issue is related to defining if a work is a compilation which can be copyrighted. It would further seem that anyone and everyone could steal entire compilations freely if all they had to do was not use a similar structure/organization of the materials.

 

[quincy]

I hope I can ask one more question related to this issue....

If the theft does not include the organizational structure, does that in any way negate my ability to argue infringement of a compilation?

It would seem to me the organization issue is related to defining if a work is a compilation which can be copyrighted. It would further seem that anyone and everyone could steal entire compilations freely if all they had to do was not use a similar structure/organization of the materials.

First, to even file a copyright infringement lawsuit, you need to register your copyright.

You can register all of the original and creative content on your website that remains constant, but you would have a hard time registering anything on your site as a compilation if what is compiled is constantly changing.

I think you need to sit down with an IP attorney in your area, webscribbler, for a personal review of what your website is all about. The attorney can help you protect what is protectable and the attorney can let you know what is not. You need to find out what exactly on your website is copyrighted or protectable under trademark law and what would be free for anyone to use (ie, public domain material, facts).

Good luck.