April 12, 1999
IN THE EUPHORIA of surfing around the Web looking for just the right photo, music bite, or graphical embellishment to add to a page design, it’s easy to forget that those tidbits were created by someone. And the creators might be quite annoyed to find their creations redeployed without credit or payment–perhaps annoyed enough to sue. If they do sue, they can potentially collect statutory damages of up to $100,000 per unauthorized use, even if it didn’t cost them a dime in actual damages.
Michael Simon, in-house counsel to Web design house Razorfish since 1996, and a copyright lawyer by training, delivers a twice-yearly lecture on copyright to employees who haven’t heard his spiel before or who didn’t understand it the first time. He says the company can’t afford to have anyone be fuzzy about these issues.
“It’s easier to pay $2,000 to clear something than $150,000 from a copyright lawsuit,” he said. “I make sure our designers understand you can’t just grab copyright-protected visual or audio material without clearing it.” Razorfish also requires written confirmation from its clients that they have cleared any copyrighted works they want the firm to incorporate into their designs.
Net-related copyright issues have been in the news recently with the recording industry’s fight against MP3, the file format that allows relatively easy downloading of large sound files and is widely used to distribute pirated recordings. But the simple act of borrowing a GIF from another Web site can land someone in water just as hot as if he were a professional music pirate.
It’s easy for a legal layman to assume copyright issues don’t apply if you just use a little piece of a work, or if it’s not recognizable after you get done with it.
But think again. “A drummer can tell from hearing one stroke whether a recording is one of his,’ Simon said. “My rule is, if you take something, I’m not going to make an independent judgment on whether someone could identify it. Alteration makes it operationally easier to infringe a copyright, but it’s still legally an infringement.”
And what about “fair use”–the provision in copyright law that lets newspapers quote from books without permission when writing a review, or allows a parodist to modify a copyrighted image for the amusement of the public? Forget about it, said Eric Goldman, an intellectual property attorney with Cooley Godward, Palo Alto, Calif., who has published articles about online copyrights. Fair use is a last-ditch defense after you’ve been hauled into court by the copyright holder, he said. Because many factors figure into whether a particular use is “fair” [see box, above], and because they rarely all point in the same direction in a given case, “you never know whether a fair-use defense will work until the gavel has hit the wood.”
It’s particularly crucial for Web design firms to make sure all material is cleared, because if they don’t, their client will be on the hook in any lawsuit by the copyright holder.
Goldman recalls paying a noted Web design firm (which shall remain nameless) a six-figure sum to design a site. “When I asked what third-party components had been incorporated into the design, and whether we had a license for them, there was dead silence at the other end,” he said. “Then I asked whether they had kept a log of where all those things were coming from, and there was more dead silence. It was very disconcerting.”
Getting clearance can be a complex task. Virtually every graphic, photo, sound file, article, or scrap of source code created since 1909 (the year the U.S. copyright law went into effect) belongs to somebody, and they automatically have a copyright in it, even if they don’t file any documents with the U.S. Copyright Office or append a copyright notice to the item. (They do, however, have to register the copyright before someone infringes on it if they want to be able to collect statutory damages, up to $100,000 per use.)
Not only do you have to clear the rights with the content’s original owner, you may have to get permission from people pictured in a photo, the actors in a film clip, or even the advertisers whose billboards or promotions are visible in an image.
“We had a particularly good time clearing film clips from NASCAR,” said Jill Alofs, president of Total Clearance, a firm that specializes in obtaining permissions for materials used in multimedia. “We had to contact the owners of all the logos used on the cars, and for a 30-second clip, that could mean hundreds of owners.”
And there’s no single clearinghouse or any set rates for most types of content. While licensing for millions of songs is handled by Broadcast Music Inc. (BMI) and the American Society of Composers, Authors and Publishers (ASCAP)–both groups have special licenses for Web use–those licenses cover only the music itself, not the particular performance of it. Unless you play it yourself, you have to track down the record company that issued the recording, and perhaps the artist.
Stock houses are the safest source for photographs and other images, and have varying fee schedules, but they should be able to confirm in writing that their materials are cleared for the uses a developer is planning.
Otherwise, it’s usually a matter of tracking down the owner, and licensing items for Web use can cost anything from hundreds of thousands of dollars in fees to a simple “please.”
“Web rights are my favorite type of negotiation,” said Alofs of Total Clearance. The fee can be based on simple duration of the use, the number of page views that include the specific item, a percentage of the revenue generated by the site, or any other factor agreed on. Alofs said she can frequently negotiate prices downward by striking deals with the copyright holder on behalf of several clients at once.
The easiest legal course is to stick with stock houses for images and purchase blanket BMI and ASCAP licenses for music (costing $250 and up per Web site, depending on site traffic and revenue, and covering each organization’s entire catalog).
Tempted to play the odds that an infringement won’t be spotted? BMI’s MusicBot prowls the Web looking for infringing sound files, and digital watermark technology can stick with an image through many alterations. Large copyright holders, such as movie studios, are beginning to see a significant revenue stream from licensing material for the Web, Alofs said, and even individual artists know how to spot an opportunity.
“Online rights are a more prevalent discussion now,” said Razorfish’s Simon. “And I’ve never found people to be less than savvy about protecting their rights.”
Sidebar: Is There Such a Thing as Fair Use?
According to the U.S. Copyright Office, “Section 107 [of Title 17 of the [iS. Code, which covers copyrights] contains a list of the various purposes for which the reproduction of a particular work may be considered fair.” It also lists four factors that are relevant to determining fair use:
* Purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes
* The nature of the copyrighted work
* The amount and substantiality of the portion used in relation to the copyrighted work as a whole
* The effect of the use upon the potential market for or value of the copyrighted work