A niche website for artists and authors recently went offline. We want to resume their work, and rehost the old art/stories

[Virgil Vulpes]

Some members of my community saw this coming (because of bad or non-existent management) and took the time to archive the works hosted on the website in question.
Said website had no ads, and accepted no donations. It was a passion project.
Our new website will be the same sort of unpaid passion project, intended to continue our 8-year fandom.
The torch was not passed to us, but we want to pick it up and carry on.
I am concerned about the previous site's last owner trying to exert copyright law to extinguish and erase the works from these last eight years.
Details can be provided as needed.

 

[quincy]

What is the name of your state or, if not in the US, what is the name of your country?

 

[Virgil Vulpes]

I'm located in Georgia, USA.

 

[quincy]

Thank you for providing your state name.

Did the website have a Terms and Conditions of Use which included the grant of a perpetual license to all content?

 

[zddoodah]

I am concerned about the previous site's last owner trying to exert copyright law to extinguish and erase the works from these last eight years.

A reasonable concern.

Do you have a question?

Do you have reason to believe that the owner(s) of the work(s) in question would give you a license do what you are proposing to do? Have you contacted the owner(s) to ask?

 

[quincy]

And clarification, please: Do you (or your “community”) want to take over the website itself (domain name, web design, site name, etc) or do you want to set up your own website using content published on the old website?

 

[Virgil Vulpes]

Thank you for providing your state name.

Did the website have a Terms and Conditions of Use which included the grant of a perpetual license to all content?

The original site's ToS states:

9. Your content: licence

9.1 In these terms and conditions, "your content" means all works and materials (including without limitation text, graphics, images, audio material, video material, audio-visual material, scripts, software and files) that you submit to us or our website for storage or publication on, processing by, or transmission via, our website.

9.2 You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence to use, reproduce, store, adapt, publish, translate and distribute your content in any existing or future media / reproduce, store and publish your content on and in relation to this website and any successor website / reproduce, store and, with your specific consent, publish your content on and in relation to this website.

9.3 You grant to us the right to sub-license the rights licensed under Section 9.2.

9.4 You grant to us the right to bring an action for infringement of the rights licensed under Section 9.2.

9.5 You hereby waive all your moral rights in your content to the maximum extent permitted by applicable law; and you warrant and represent that all other moral rights in your content have been waived to the maximum extent permitted by applicable law.

9.6 You may edit your content to the extent permitted using the editing functionality made available on our website.

9.7 Without prejudice to our other rights under these terms and conditions, if you breach any provision of these terms and conditions in any way, or if we reasonably suspect that you have breached these terms and conditions in any way, we may delete, unpublish or edit any or all of your content.

A reasonable concern.

Do you have a question?

Do you have reason to believe that the owner(s) of the work(s) in question would give you a license do what you are proposing to do? Have you contacted the owner(s) to ask?

I currently have no way to contact the previous site's owner. He has "gone dark" from all of our discussion platforms. But the sole moderator for the site is making vague threats regarding anyone re-hosting the art/stories, and so I feel that it is best to be forearmed before letting our new site go public.
If you haven't had the joy of dealing with artists and authors yet, just know that absolutely everything has to be done dramatically.

EDIT: Some of the artists in question are already invited to the new site and approve of the direction in which we're going.
They simply want a place to post their artwork and stories.

And clarification, please: Do you (or your “community”) want to take over the website itself (domain name, web design, site name, etc) or do you want to set up your own website using content published on the old website?

Nobody was allowed a chance to step up and take on the duties involved in keeping the website online. The plug was pulled on it in the middle of the night. The site owner is nowhere to be found. Because of this I have taken the initiative to set up a new website using a more modern software than the previous one.
EDIT: I realized that I hadn't properly answered your question.
Yes, there are some among us that would have taken on that task if we had been given the opportunity.

 

[Taxing Matters]

9.2 You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence....

Two observations here. First, since all the site obtained was a nonexclusive license you'd need to worry not just about the rights asserted by the site holder, but also the artists that contributed to it should you decide to start up a new site and use what you archived from the old one. (And indeed, simply archiving that work may itself be copyright infringement). Second, from the spelling and use of terms in the site TOS I'm guessing that the site was not located in the U.S. and/or provided service to countries outside the US. As a result, there may be copyright issues in other countries to consider as well.

 

[Virgil Vulpes]

Two observations here. First, since all the site obtained was a nonexclusive license you'd need to worry not just about the rights asserted by the site holder, but also the artists that contributed to it should you decide to start up a new site and use what you archived from the old one. (And indeed, simply archiving that work may itself be copyright infringement). Second, from the spelling and use of terms in the site TOS I'm guessing that the site was not located in the U.S. and/or provided service to countries outside the US. As a result, there may be copyright issues in other countries to consider as well.

There are certain artists who have requested that their work be removed from the previous site. They have been put on a "Do Not Post" list, because at times some of the members would post artwork they had found elsewhere to the site. (Until lately this was a very small and loosely-knit community)
We plan to honor the previous site's Do Not Post list, and add any other artist to that list if/when they request it.

 

[quincy]

The original site's ToS states:

9. Your content: licence

9.1 In these terms and conditions, "your content" means all works and materials (including without limitation text, graphics, images, audio material, video material, audio-visual material, scripts, software and files) that you submit to us or our website for storage or publication on, processing by, or transmission via, our website.

9.2 You grant to us a worldwide, irrevocable, non-exclusive, royalty-free licence to use, reproduce, store, adapt, publish, translate and distribute your content in any existing or future media / reproduce, store and publish your content on and in relation to this website and any successor website / reproduce, store and, with your specific consent, publish your content on and in relation to this website.

9.3 You grant to us the right to sub-license the rights licensed under Section 9.2.

9.4 You grant to us the right to bring an action for infringement of the rights licensed under Section 9.2.

9.5 You hereby waive all your moral rights in your content to the maximum extent permitted by applicable law; and you warrant and represent that all other moral rights in your content have been waived to the maximum extent permitted by applicable law.

9.6 You may edit your content to the extent permitted using the editing functionality made available on our website.

9.7 Without prejudice to our other rights under these terms and conditions, if you breach any provision of these terms and conditions in any way, or if we reasonably suspect that you have breached these terms and conditions in any way, we may delete, unpublish or edit any or all of your content.




I currently have no way to contact the previous site's owner. He has "gone dark" from all of our discussion platforms. But the sole moderator for the site is making vague threats regarding anyone re-hosting the art/stories, and so I feel that it is best to be forearmed before letting our new site go public.
If you haven't had the joy of dealing with artists and authors yet, just know that absolutely everything has to be done dramatically.


Nobody was allowed a chance to step up and take on the duties involved in keeping the website online. The plug was pulled on it in the middle of the night. The site owner is nowhere to be found. Because of this I have taken the initiative to set up a new website using a more modern software than the previous one.
EDIT: I realized that I hadn't properly answered your question.
Yes, there are some among us that would have taken on that task if we had been given the opportunity.

Okay. Well, it is not a problem for you and the other artists and writers who contributed on the other site to start your own website, with a new name and new domain name (Internet address) and your own new content. You can do that without infringing on anyone else’s rights. You and the others can publish your own works.

The contributors to the former site did not transfer any rights in their works to the previous website/owner. They have retained all copyrights in their works. However, these contributors also have given the previous website “equal” non-exclusive rights in their works by granting the previous website/owner a perpetual license. The website/owner can exercise his rights in all of the previous contributions and does not have to pay the contributors for his uses of their works, regardless of how he chooses to use them.

Even though the U.S. is a Berne Convention signatory nation and the Berne Convention recognizes “moral rights,” there are no “moral rights” specifically recognized in the U.S. A number of U.S. statutes, however, provide equivalent protection. These moral right protections include the right to claim authorship of your own work, or disclaim authorship, and the right to legally object to any unauthorized use or abuse of a work that could tarnish the author’s reputation.

It sounds as if the previous website, therefore, either originated in a country other than the U.S. or accepted content contributions from other nations.

You cannot use on your website any material without express permission from the original author/artist.

 

[Taxing Matters]

We plan to honor the previous site's Do Not Post list, and add any other artist to that list if/when they request it.

That's a good start. But you still will need to get permission from the other artists, too. Just because they allowed that site to post their work does not mean they agree to let you do that on a new site.

 

[quincy]

That's a good start. But you still will need to get permission from the other artists, too. Just because they allowed that site to post their work does not mean they agree to let you do that on a new site.

All material published on the new website, in other words, cannot be published without authorization from the original author, unless the previous website owner wants to sublicense the works that appeared as content on his site.

 

[Virgil Vulpes]

While I may not have gotten the answers I was hoping to hear, I truly thank you all for your time and knowledge.
If you'll pardon me, I need to put my team to work contacting a few thousand semi-anonymous or fully anonymous people.
This experience leads me to believe that a Creative Commons licensing is the best for our new site.

 

[quincy]

While I may not have gotten the answers I was hoping to hear, I truly thank you all for your time and knowledge.
If you'll pardon me, I need to put my team to work contacting a few thousand semi-anonymous or fully anonymous people.
This experience leads me to believe that a Creative Commons licensing is the best for our new site.

It can be a lot of work to set up a website for creative works because of the intellectual property rights involved. I am happy that you are considering the creation of such a site, though.

My recommendation is to have an IP attorney help you draft the terms and conditions for your site and also have a publishing law professional personally review the site once it’s set up to make sure there are not other areas that could create legal issues for you.

You might want to speak to your insurance agent to ask about insurance coverage for your website, too.

Good luck.

 

[Virgil Vulpes]

...
My recommendation is to have an IP attorney help you draft the terms and conditions for your site and also have a publishing law professional personally review the site once it’s set up to make sure there are not other areas that could create legal issues for you.

You might want to speak to your insurance agent to ask about insurance coverage for your website, too.

Good luck.

Both of those are ideas I had not yet thought of. I will be giving them both heavy consideration.
And thank you, I'm fairly certain I'll need the luck.