Small & Home Office
It's Not Finders, Keepers
By Nancy Kremers
WITH the growth of the Internet, many lawyers have become both Web site publishers and advisers to Web site publishers -- whether for ourselves, our firms, or clients.
There seem to be a lot of misconceptions about the legalities of Web site publishing. For example, many otherwise e-savvy attorneys believe that anyone can copy and use on a Web site anything found elsewhere on the Web. The "fair use doctrine" is regularly presented to justify all kinds of Web site use of copyrighted material. Many of us are making some very common -- and incorrect --assumptions.
Just because a photograph or text is available on another Web site and can be easily copied and pasted onto yours, doesn't mean the material is in the public domain and therefore outside copyright protection. "Public domain" does not mean "found in a public place." In fact, nearly all of the material to be found on the Internet today is under copyright, and no obvious and public notice of the copyright is required for material to be fully legally protected under copyright law. The days of requiring all publications to display the little c-in-a-circle symbol with the year and name of the copyright holder in order for valid copyright protection to attach are gone, (though it is still a good idea for the copyright holder to provide this kind of public notice on any distribution of copyrighted work).
Copyright protection can and does extend not just to text found on the Web, but to photographs, graphics, music, sound effects, video clips, or just about anything else. In fact, anything can be copyrighted if it is original work embodying some kind of creative element and is fixed in a tangible medium, which includes being stored in digital files or displayed on a browser.
Fair use is a key area where lawyers are most likely to be mistaken in whether or not their use of another person's copyrighted material is a legal or infringing. Fair use does not mean "fair game." The fair use doctrine is a judicially developed doctrine of intellectual property law, now statutorily codified in Section 107 of the Copyright Act of 1976. It allows for limited use of copyrighted material without permission of the copyright holder in certain cases: for purposes of criticism, commentary, satire, research, news reporting and teaching, so long as such fair use does not result in infringement of the copyrighted work.
Even if your use constitutes one of the enumerated purposes, that alone doesn't mean it will qualify as a fair use. Courts also consider four factors concerning the facts surrounding any particular use, including:
1) Its purpose and character, especially whether is it is commercial or nonprofit and educational;
2) The nature of the copyrighted work;
3) How much of the copyrighted work is being used and how substantial that portion is; and
4) The effect of the enumerated use on the potential market or value of the copyrighted work.
A popular misconception is that these factors can be reduced to some magic word-count number or safe proportion/percentage use of a copyrighted work, but this is not true. Judicial decisions in the fair use area are very fact-specific, and it is difficult to predict the outcome of any particular situation in advance.
Take a close look at your Web site content. Who wrote the text? Where did you get the music or other sound effects? Each picture? Every graphic? Unless you personally wrote, composed, photographed and designed it all yourself from scratch, without benefit of clip art and music, the chances are you've got some copyright licensing issues to address before you are safe going online.
Unless your site is part of an educational institution or other nonprofit organization, your best approach is to assume that you are operating a commercial Web site, and that fair use does not apply to anything you are doing. In this scenario, you will need to contact the copyright holders of all third-party material and get permission (known as a copyright license) to use it on your Web site.
If you are seeking an exclusive license, you must get it in writing, signed by the transferor, and you should register it with the copyright office for maximum protection.
If you only want a nonexclusive license -- that is, you don't care if the copyright holder lets others use the same material in the same medium at the same time -- there is no legal requirement for the license to be written, although this is still a good practice for your own recordkeeping or in case of later disputes.
Because the original copyright holder may license many others to use the copyrighted material in a variety of ways and for a variety of time terms, you must be sure you are obtaining your license from the actual owner of the rights you seek, not just from another license holder up the publishing chain from you.
There can be many levels of license holders between the original copyright holder and you, depending on where you found the material you wish to use.
Another licensee may not hold a broad enough license to grant you the license you seek, so, if the party from whom you obtained the material is not the actual copyright holder, it is a good idea to obtain a copy of that party's license to determine whether the rights you need can be properly sublicensed from that party.
If you are using multimedia material from someone else, you will need to follow up on the licensing angle for each component of the work, because it is very common for different parts of the work to be owned by one or more different parties, each of whom must grant you the appropriate license.
Once you have proper licenses for your Web site content, the entire Web site needs to be reviewed, with all parts (music, pictures, video clips, etc.) as they will be shown or heard in context with other parts of the finished product. This is the time to think about publishing torts, especially defamation (slander and libel), invasion of privacy, and violation of rights of publicity. Make sure all statements about other people (natural or legal) are true and accurate.
Be particularly careful if material you use refers to private facts about another identifiable person, especially if those facts involve material that an ordinary person would likely find embarrassing or offensive. Either get that individual's written consent before publishing, or consider deleting the material altogether.
Be sure you have prior written permission before you use anyone else's likeness, name or signature on your site, including those of employees, co-workers, friends and their children. Take a close look at all pictures and text as they actually appear on your site, and notice which music lyrics are heard in juxtaposition with contemporaneously appearing visuals. Make sure the context in which information appears about any given person or organization does not present that actor in a false, inaccurate or misleading light.
Needless to say, there are many other considerations involved in Web site publishing, but these are the basics we all need to grasp before we venture online.
Houston-based attorney Nancy Kremers advises software development and e-commerce clients.