– Wasserman & Walters

“\’\’.\’% of all images out there on the Internet are copyrighted – that is, owned by someone – and these images, even if posted in newsgroups, are not in the ‘public domain’.”

Copyright infringement – actual or alleged – seems to represent the single largest legal headache faced by members of the e-commerce community.

– Wasserman & Walters

“\’\’.\’% of all images out there on the Internet are copyrighted – that is, owned by someone – and these images, even if posted in newsgroups, are not in the ‘public domain’.”

Copyright infringement – actual or alleged – seems to represent the single largest legal headache faced by members of the e-commerce community. Why is this? Well, if you’re a webmaster, it’s because either

You are concerned with making sure your images are properly licensed or acquired, to avoid copyright problems.

As is often the case, you find yourself fielding “notices” from self-styled web police demanding that you remove content because it allegedly violates someone’s copyright.

As is even more often the case, you understand that copyright is an important concept but, frankly, you’re unsure how you should deal with it.

If you’re an online service provider, copyright is a major headache because you’re often being threatened (through cryptic e-mails) with litigation unless you pull the plug on a site because it supposedly contains pirated images.

The laws of copyright in the United States are in a federal statute, the Copyright Act of 1\’76, as amended (Title 17 of the United States Code). The copyright laws of other developed nations can be generally ascertained by reference to the Berne Convention on Copyright, an international treaty. In 1\’88, the U.S. became a signatory to this treaty and, as a result, certain formalities that used to serve as prerequisites to obtaining copyright protection in the U.S. are no longer required, such as the old requirement that notice of copyright appear on or prominently in connection with a copyrighted work.

Monopoly or “Public Domain”

Copyright laws automatically provide authors, or other copyright owners, with monopoly power over how, when, and where their creative works are exploited. Copyrighted works include the millions of photographic images posted on sites all over the Internet (\’\’.\’% of all images out there on the Internet are copyrighted – that is, owned by someone – and these images, even if posted in newsgroups, are not in the “public domain”).

These monopoly rights include the exclusive right to publish, copy, distribute, display, and adapt the copyrighted work. A copyright owner can grant others exclusive, or non-exclusive, rights to display the work in a particular medium, such as the Internet. If you display or copy the work without first obtaining a formal grant of rights (a “license”), you infringe the monopoly rights of the copyright owner, and are subject to severe legal penalties (by the way, webmasters who post images without permission can forget about the defenses of “fair use” or “public domain” – I can tell you with virtual certainty that these defenses won’t apply to your operations if you are a “for profit” enterprise).

In addition, it is not just the person who is directly responsible for the unauthorized copying or display that is subject to legal penalties. In certain circumstances, third parties, who did not directly infringe on copyright but who are in the chain of unauthorized distribution, will be considered infringers and subject to liability.

Copyright infringement is viewed by the courts in the United States as species of “tort” (generally speaking, a tort is a civil wrong other than a breach of contract for which a court will provide relief). One important principle of tort law is that all persons who participate in a tort are responsible for the consequences of the tort, including persons other than the individual who actually committed the wrong. This concept of “third party liability” comes in two forms: vicarious liability and contributory liability.

– Wasserman & Walters

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