Trademarks of Photos on Internet

[MysteryJock]

What is the name of your state?
New York

I have been searching for a while for the answers to a couple of questions regarding copywrite infringement on the internet.

I am an American living in Aukland, and am moving back to the US just after Christmas. I am intending on purchasing a few internet humor sites, but am spooked because of a recent experience a buddy of mine has had. He is in NY and has several humor internet sites. He was telling me about his woes recently when he got slapped with a lawsuit for copywrite infirngement for posting a picture on his site, that the author claims was theirs. The lawsuit names several completely unrelated defentants, and several plaintiffs for differnet photos.

He received this, as well as all of his photos from subscribers to his site, and asks for, and receives contributions to his site all the time. He has no idea where each contribution comes from , but he knows that the author is really probably not the person sending the photo.

a) Is he under obligation to make sure that the author is in fact the sender,a nd how can he verify this?

b) Is there a caveat that he can put on his site, that says that he only accepts works that are from the author, and he takes no responsibility for anything where the ownershp is not his?

c) When I buy the internet sites, how can I be sure that I will not get slapped with a similar lawsuit.

d) If there is no copywrite or trademark, or registered mark on the photo, does it fall under the same laws?

e) I have seen so many humor photos that have been touched up, where the sebmaster puts their own logo/url on it, and send it out. How does one know who is the correct author?

I really want to give credit/permission where I can , but from the research I have done, 99% of the sites get 99% of the material from their subscribers and have no real knowledge of who the author is.

I want to be both legitimate, and responsible and moral about this, but I will be doing this for fun, and hopefully profit, but from what he told me about his lawsuit, the fine asked($25,000) would be more than I would anticipate earning in 3 years

Any help would obviously be appreciated.

 

[divgradcurl]

"a) Is he under obligation to make sure that the author is in fact the sender"

Hard to say. There is the concept of "contributory infringement,"

one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a "contributory infringer".

Gershwin Publishing Corp v. Columbia Artists Management Inc. Check out A&M Records Inc. v. Napster Inc as well.

Based on this, as long as he didn't know that the material was infringing -- that is, he didn't know the material didn't belong to the person who was sending it too him, then he wouldn't meet the "knowingly" part of contributory infringement.

However, there is also the concept that you can't "turn a blind eye" to infringing activites to protect yourself -- that is, you can't just say "I don't want to know" and then claim you didn't know; if you reasonably SHOULD have known, that will be enough to find contributory infringement.

"a nd how can he verify this?"

You really can't. If the picture has a registered copyright associated with it, then you could check ownership on the U.S. Copyright Office webpage. However, the vast majority of works out there do not have a registered copyright associated with them.

"b) Is there a caveat that he can put on his site, that says that he only accepts works that are from the author, and he takes no responsibility for anything where the ownershp is not his?"

He could, but it wouldn't help him any.

"c) When I buy the internet sites, how can I be sure that I will not get slapped with a similar lawsuit."

You can't -- anyone can sue anyone for anything.

You could minimize the risk of such a lawsuit by only accept materials where ownership can be proved, and a written license outlining the scope of your usage rights is signed by the copyright owner.

"d) If there is no copywrite or trademark, or registered mark on the photo, does it fall under the same laws?"

Yes. You do not have to mark a copyrighted work with a copyright notice; all works are automatically covered by U.S. copyright laws as soon as they are "fixed in a tangible medium," that is, created. Registration of copyrighted works with the U.S. Copyright office gives some added protections, but works are not required to be registered for a copyright to exist.

Trademarks are a bit different. You still don't have to mark a registered trademark, though.

"e) I have seen so many humor photos that have been touched up, where the sebmaster puts their own logo/url on it, and send it out. How does one know who is the correct author?"

Tough call. If the work could be construed as a parody, then the person modifying the photo would be the owner of the copyright on the modified work. See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

If the work is not a parody, but is some other type of humor, then, unless the modifier has a license from the holder of the copyright on the original work to make the modifications, the modified photo is infringing on the original work's copyrights.

"I want to be both legitimate, and responsible and moral about this, but I will be doing this for fun, and hopefully profit, but from what he told me about his lawsuit, the fine asked($25,000) would be more than I would anticipate earning in 3 years"

If you are going to get material from subscribers, as you have found, the overwhelming majority of the materials is from "indeterminate" sources, which means in all likelihood it is someone else's work (other than the person contributing). If you use the materials without permission from the copyright owner, you could be sued for copyright infringement. Even if, as I noted above, you don't "know" that the material is infringing, if you get sued, you'll have to hire a lawyer to defend you. Maybe a court will find that you didn't really know, and you will be found to be not liable for infringement, but you'll have to pay your lawyer.

If you can't come up with a way to ensure that every submission is properly licensed, then you'll simply have to determine how much risk you are willing to take in order to run one of these websites. Certainly the majority o fpeople who put stuff on the web are likely not going to be running to lawyers to protect their rights, but as your friend is finding out, it only takes one...

 

[MysteryJock]

Hi There,

Wow!

Thanks for all the info. It appears that it is not the easiest thing to do, what seemingly everyone out there is doing.

Let me ask one more question.

If the site was a private members only site, and members were required to confirm that they are part of an "Exchange Club" or if they were required to confirm thet they are there for enjoyment only and not to entrap, nor use any information gained on the site to use against us...would that protect me or have I been watching too much American TV?

 

[divgradcurl]

"It appears that it is not the easiest thing to do, what seemingly everyone out there is doing."

There are a number of reasons why lots of folks out there are doing things like this:

-- Very, very few copyright holders ever assert their rights in a "legal" sense, that is, actually file a lawsuit. There are usually jurisdictional issues involved, and unless the author is "damaged" in some way, or unless the copyright is registered BEFORE the infringing activities took place, there is usually not a significant award at the end anyway to make it worthwhile.

-- Many of these sites are run out of a peron's pocket, or toherwise on a shoestring budget, so evenif there are damages, oftentimes the infringers are essentially judgment-proof: if they have no assets to collect against, what's the point?

-- A lot of these operations are run on servers based overseas, or the people are overseas running on U.S.-based servers. Once infringement is occuring overseas, fuggettaboutit.

However, with all of that said -- it only takes ONE copyright holder to want to make your infringing activity his Alamo, and you might not be quite as judgment-proof as you think! Furthermore, you never know WHO the actual copyright holder is -- if it's Playboy, or the NFL, or Microsoft, well, they can afford to absorb the legal costs to make a point, even if they can't collect much from you.

That's why I suggested you figure out if the risk is worth it to you, or try and come up with some way to avoid infringing activities altogether.

"If the site was a private members only site, and members were required to confirm that they are part of an "Exchange Club" or if they were required to confirm thet they are there for enjoyment only and not to entrap, nor use any information gained on the site to use against us...would that protect me or have I been watching too much American TV?"

Too much TV. If users download infringing items from your site, upload them or share them elsewhere, and then get pinched, you don't think they are going to squeal? I guess if you had a terms-of-service contract with them to keep their mouths shut and not reshare materials you could try an enforce such activity with a breach-of-contract case, but a judge would toss it out -- you can't have a valid contract whose purpose is to conceal illegal activity.

Like I said before, you just gotta wiegh the risks and the moral issues yourself, and see which way the balance tips...

 

[MysteryJock]

Hi There,

Thanks once again. Great advice!

 

[Plane Insane]

What is the name of your state? Michigan

I have a similar situation in that I acquired a collection of niche cartoons that have been saved over several years. These cartoons are from several hobbiest's who made a funny sketch for a magazine or club newsletter. There are no known names attached to any of them, and no known copyrights.

Following the conversation above, does it matter that the person created the picture and sent it freely to a magazine or club newsletter to be published? Does it become public domain at that point?

Perhaps if I asked for mandatory donations to compensate for hosting fees and web site development in exchange for picture downloads? Is there a way around the fact I did not buy the cartoons or ask for the artists permission? Does it matter that the artists are unknown or unavailable?

I'd like to share the several hundred pictures and cartoons, but would also like to get paid for my time to set up the website and scan all the pictures. How can this be done?

 

[divgradcurl]

"does it matter that the person created the picture and sent it freely to a magazine or club newsletter to be published?"

Matter in what sense?

"Does it become public domain at that point?"

No. Works only become public domain in 3 cases:

1) if the work was originally published prior to March 1, 1989, was created in the U.S., and was published without a copyright notice;

2) if the statutory duration has expired;

3) if the creator explicitly gives the work over to the public domain.

There is no concept of "abandonment" in copyright -- an author has to deliberately and explicitly -- usually in writing -- give up his rights and place the work in the public domain.

"Is there a way around the fact I did not buy the cartoons or ask for the artists permission?"

No. If the works are not in the public domain and you do not have permission from the copyright holder to use them, you are infringing on the copyright.

"Does it matter that the artists are unknown or unavailable?"

No. If you want to use another's work, then the burden is on you to find them, not on them to make themselves available.

"I'd like to share the several hundred pictures and cartoons, but would also like to get paid for my time to set up the website and scan all the pictures. How can this be done?"

Get permission to use the pictures, or simply put them up and hope that you do not get sued by one of the copyright holders. Whether you get paid or not is really irrelevant -- evenif you did it for free, it is still infringement. All of the people sharing music files on KaZaa are doing it for free, and they are still getting sued by the RIAA for infringement.

One last thing:

"cartoons are from several hobbiest's who made a funny sketch for a magazine or club newsletter."

If the artists submitted their works to a newsletter or magazine, they may have transferred some or all of their rights to the magazine or newsletter. This may make it easier (or harder) to track down the copyright holder for permission, as you probably can simply contact the magazine or newsletter publisher instead of the artists themselves.