C3 Patent and Intellectual Property Law

Steve,

Affixing a copyright notice is beneficial because it:

1. Provides notice that the work may not be used in any way that infringes its copyright. This categorizes the work as non-public domain material, acts as a deterrent to infringement, assists to persuade third party publishers to take down infringing copies, and alters the infringement remedy dynamic by characterizing the infringer as willful [as a practical matter].

2. Provides notice as to who owns the copyright in the work. This is useful to assist potential licensees in locating the owner and provides a reputational benefit to the author.

3. Provides notice of when the work was first published. This is useful because the date also informs the world when the copyright will expire, because the notice may include dates of revisions of the work, and is evidence of the owner’s use of trademarks present in the work as of the date noticed.

4. Infringers of the work may not claim their infringements were innocent. This takes away the court’s discretion to award reduced statutory damages.

5. Removing the notice may violate copyright law's prohibition against circumventing the owner's copyright management efforts.

My Anonymous Commentator "MAC": Thanks for taking the time to read my post and comment. I do appreciate it.

Now MAC, I don't disagree with you, but I don't think your points really mean anything for the vast majority of websites. The main reason is that so few are actually registered. In fact, I'm not convinced that many are even capable of being registered. Certainly many have copyrightable elements, but even for those elements, the vast majority go un-registered. The other wrinkle about noticing publication of a website is that it can be easily and quickly changed at any time. . . meaning I don't think it has any real evidentiary value.

To comment on each of MAC's points:

1) I don't think a notice has any real deterrent effect; A takedown notice doesn't require a (c) notice; if the copyright isn't registered, there isn't an economic benefit to having a willing infringer.

2) For websites, one can get that through a whois query.

3) If I'm a content provider, I really don't care if someone can figure out when my work enters the public domain. I'd like them to assume it's protected forever. I'm also not convinced that a publication date I put on a website is good evidence of the real date of publication. I can put "(c) 1985" on a page where I post a copy of the book Twilight; that certainly isn't going to carry the day if I sue, or get sued by the real copyright holder.

4) That only matters for registered works, and the vast majority of people are not registering their websites or blog posts.

5) Do you mean the DMCA MAC?? Interesting thought, but without some DRM, I'm not sure how that would come up. Am I missing something?

I don't think you're gaining anything by having a notice on your website. . . but you're also not hurting anything. If you want to use one, use one, but don't worry that forgetting a notice means your work is dedicated to the public domain.

I agree that Creative Commons is the way to go here. In many ways, it has saved the Internet.

Flickr's Creative Commons section is my favorite place to go looking: http://www.flickr.com/creativecommons.

A lot of folks fall for common myths about copyright. People think that copyright protection is granted by the copyright office. In truth, this protection is automatic the moment an original work is created.

And just because something's published on the internet, doesn't mean it's up for grabs.

Here's a great site which explodes 10 common copyright myths:
http://www.templetons.com/brad/copymyths.html

Thanks for the excellent post!

Please justify your opinion that linking to an image constitutes copyright violation. Such a link is merely the address on the internet where the image may be found; the creator of the linking page has not made a copy of the image. Further, its availability on the internet through a link indicates that it has been made available for access, so the reader of such a page is not violating copyright either. As far as I know, the outcomes of all "deep-linking" lawsuits have been favorable to the linkers.

Hyman,
I'm a lawyer. Are you? If not, I see no reason to justify my legal opinion to you.
My post was for general legal advice and not for any specific client or fact-pattern.
Copyright protects the author's rights to reproduce, perform, and make derivative uses of their work. http://www.law.cornell.edu/uscode/17/usc_sec_17_00000106----000-.html Depending on one's actual fact pattern and perhaps where a lawsuit is litigated, it is far from clear whether an infringement exists or not for an inline link. The goal of my post was to alert bloggers to the possibility of legal action so that they can make somewhat informed decisions.

I'm sorry I just don't see how any rational person could construe an inline link as infringing. It may not be a good idea for other reasons, but certainly not copyright.

Steve, our agency is starting a blog this month and I often wondered what were the rules for using pictures. I appreciate the advice!

Steve: as a lawyer I can confidently say that the law is not necessarily rational.

I'm not saying that the law should be, or is, rational, I'm saying that I don't know of any language in the law that would make a link a possible infringement. Granted I'm not a lawyer, but I have read much of the federal copyright laws.

As you said: Copyright protects the author's rights to reproduce, perform, and make derivative uses of their work...

Linking (embedding, hotlinking) does nothing of the sort. I do see the infringement if you grab an image and distribute it from you own server/domain, but to link/embed an image you do not at any time distribute that image. Unless you are going to argue that telling people where an image can be found is infringement (of course we are assuming that the original placement of the image was non-infringing) I can't imagine where you are coming from.

Steve, the public performance right does not require copying in order to be infringed. Take a look at this case from NDTX.

The defendant was pro se, and it settled before a final judgement, so we can only guess what would have happened if he was represented by counsel and the case went through an appeal.

This is a developing area of law. One thing everyone agrees on is that there is no infringement if you have permission to use an image/inline link. Other than that, it's going to depend on the jurisdiction and the specific facts of the case.