"COPYRIGHTED PHOTOGRAPHS IN THE DIGITAL DOMAIN: CAUGHT IN THE WEB OR FALLING THROUGH THE NET?"Final Writing Assignment for Law & the Internet at the
University of Miami School of Law.
By: Theodore J. Sabo, Jr.
The "digital domain", and more importantly the Internet, is a new frontier that challenges present copyright legislation. The genius of U.S. copyright law is that, in conformance with its constitutional foundation, it balances the intellectual property interests of authors, publishers and copyright owners with society's need for the free exchange of ideas. (1) It follows that the benefits of new technologies should flow to both the public and copyright proprietors.
This paper shall attempt to distinguish the Internet from traditional venues of copyrighted photographic material and simultaneously suggest some protections and remedies that need be afforded to photographers working in this medium.
Humanity seems bent on creating a world economy based on goods that take no material form. In so doing, we effectively eliminate any predictable connection between creators and compensation for the use or pleasure others may find in such works. (2) Since it is now possible to convey ideas from one to another without making them physical, we must claim ownership to the ideas themselves and not merely their expression. (3)
The Copyright Act of 1976 is complicated. A copyright is the exclusive right granted to "authors" under the U.S. Copyright Act to copy, adapt, distribute, publicly perform, and publicly display their works of authorship, such as literary works, databases, musical works, sound recordings, photographs, and other still images, and motion pictures and other audiovisual works.(4) Protection of these rights means an assurance that no more than some amount of copying of their works will take place once those works are released to others. (5) Protection is not absolute. Some uncontrolled copying is possible and even likely. It is without some limitations on copying that copyright owners will not be willing to release commercial materials to the public in any volume.
There are exceptions to copyright protection that fall into the area of fair use. According to Sec. 107 of the U.S. Copyright Act, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
(a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(b) the nature of the copyrighted work;
(c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) the effect of the use upon the potential market for or value of the copyrighted work.
NOTE: The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Most people are familiar with the "public domain". Technically, the phrase refers to material that has become available to the "world", free and without need for authorization, as a result of the time expired between the present and the date of origination (the time period may vary according to the copyright law at the time of origination).
For many, the public domain is perceived to be a "pool" of old and forgotten stuff. While this is not always true, the chances of your finding something on the Internet that falls into this category are slim in light of the duration of copyrights versus the age of the Internet.
Photography is the expression of one's idea. A photograph is the product of an artist's vision. It is this end product that has value. Photographs are used for many commercial purposes including: cards, posters, books, calendars, magazines, T-shirts, screen-savers and more.
Frequently photographs are the result of a "work-for-hire" scenario where the photographer is hired to create things for a particular project. In this instance, it is often agreed that the employer will have the copyright privileges in her possession. However, so too are photographs, originally taken for another purpose, used to enhance the value of a project. In this case, the photographer will most often possess the copyright, and therefore have exclusive control over the use and distribution of his art.
Many photographers depend on the royalties that they accrue as a result of licensing the use of their copyrighted images to other entities. This right must be protected.
Copyright fundamentals that should be understood by all photographers utilizing the Internet include the following:
(a) Copyright Notice: It used to be that in order to be afforded any copyright protection, one needed to put the world on notice by attaching a copyright notice of the work. While this is no longer the case, it is still customary to attach a copyright notice on copyrighted works in order to be eligible for certain types of damages. In the copyright notice below, notice the four elements that include the copyright symbol, the term "Copyright", the year of copyright, the name of the copyright holder, and the phrase "All Rights Reserved".(6)
The Internet is currently recognized as the largest threat to copyright protection. One reason for this threat is that the Internet consists of so much information, each with its own degree of copyright protection. Net "surfers" are simply confused about the rights and responsibilities they, and other parties involved, possess. Interestingly enough, most everything on the Net is protected by copyright law.
The Internet has been compared to the "wild west", where order was established according to an unwritten Code of the West, which had the fluidity of common law rather than the rigidity of statutes. Ethics were more important than rules. Understandings were preferred over laws, which were, in any event, largely unenforceable. (9)
IMPLIED PUBLIC ACCESS
There appears to be a doctrine of implied public access on the Internet. After all, the Internet was created on the basis of being able to attach hypertext links to any other location on the Internet. Hence, by placing yourself on the Internet (including your expressions of ideas), many people think that you have given implied permission to for them to link to your Internet page, and everyone else on the Internet is deemed to have given you implied permission to link to their web pages. (10)
The issue is: how do we structure and interpret the copyright law, a law developed in an age of print and now perhaps too tied to that medium to have ready application to today's information technology. (11)
FALSE UNDERSTANDING OF COPYRIGHT
As a result of not understanding the copyright laws, you will often find sites with disclaimers like the following:
A web page on the Internet is not much different than a magazine when looking to the expression of an idea. A web page can contain text, graphics, audio and video. Most people understand that the things you find in a magazine are protected by copyright. However, the same material, when found on the Internet seemingly appreciates less obvious protection to the casual browser. The reasons for this discrepancy are both psychological and technological. (13)
Copyright law was originally conceived as a mechanism for creating property rights in ideas - intangibles. Once such a right was created by Congress, it was to be exercised like all property rights, in any way the owner saw fit, with a wide scope for contractual variation in license terms, fees or sales price. (14)
The presumption of a congruence between public and private good arises from a reliance on property rights as the principal feature of commerce. The presumption is that voluntary exchange will benefit both buyer and seller, and voluntary exchange is facilitated by property rights. In a copying context, it would mean a presumption that both the author and the public would benefit from the existence of a property right in information.
Contrary to this, today there is a tendency to see copyright law as a means of defining specific rights and duties with regard to the use of intangibles. In other words, the traditional property view sees the copyright statute as simply providing a backdrop for individual bargains and negotiations over licenses, whereas the modern view sees the statute as specifying what are essentially the actual quite specific terms of large classes of "bargains" over the use of intellectual property. (15)
Under the modern interpretation of copyright, what seemingly sees copyright as a liability, contracts that limit what would otherwise be a fair use, a first sale, or other users' right of copyrighted material may perhaps not be allowed. These limits will likely be challenged on grounds of federal preemption. Such parties will argue that Congress's definition reflects a careful balance of interests and individuals are not free to undo the resulting scheme. Particularly, if Congress has said that a user is not liable for a certain "fair use" of copyrighted material, then it should not be within the seller's power to redefine that liability.
The traditional recipe for successful deterrence is now challenged by the Internet. Digital communications permit faster, better and cheaper copying of works of authorship. Technology now permits nearly instantaneous creation of virtually perfect copies of the original. (16) This diminishes the role of traditional copying limitations.
Protection against copying does not exclusively stem from copyright law and its restrictions. Owners of copyrights have traditionally relied on many things to protect their expressions. They have looked to the aggregate deterrence of four methods for limiting copying of their works: the state of the copying art, copyright law, special technical devices, and contract law. (17) The Internet has all but eliminated the first deterrent.
STATE OF THE COPYING ART
Some copyright protection in the past has stemmed from the "quality of experience" one has when viewing the once glossy photographs or magazine pages on a low resolution computer monitor coupled with slow browsing due to the downloading of images. More often then not, a person interested in a "work" was willing to pay for it in order to have greater satisfaction. However, this is no longer the case.
The state of the photocopy art has become such that every home has a machine that can make a near perfect copy of a magazine or photograph. Photographers and publishers of any such magazine, have a lot to worry about. Copyright owners are now compelled to resort to the copyright laws and special technical devices that can afford the necessary protection.
The Commerce Department has created a working group to investigate issues arising from the "National Information Infrastructure. This group formed a subgroup to address intellectual property issues and has since issued a report known as the "White Paper". This paper proposes several changes to the Copyright Act to accommodate those involved in digital transmission of their works.
Legislatively, the paper seeks an amendment to treat digital transmissions of works as distributions of copies to the public; a new provision making it unlawful to tamper with copyright management information; and a new provision to prohibit devices or services aimed at circumventing technological protection for copyrighted works. (18)
Practically speaking, "the eight interrelated parts of the white paper's agenda intend to:
(a) Give copyright owners control over every use of copyrighted works in digital form by interpreting existing law as being violated whenever users make even temporary reproductions of works in the random access memory of their computers;
(b) Give copyright owners control over transmission of works in digital form by amending the copyright statute so that digital transmissions will be regarded as distributions of copies to the public;
(c) Eliminate "fair use" rights whenever a use might be licensed (there is no piece of a copyrighted work small enough to justify not charging);
(d) Deprive the public of the "first sale" rights it has long enjoyed in the print world (the rights that permit you to redistribute your own copy of a work after the publisher's first sale of it to you);
(e) Attach copyright management information to digital copies of a work, ensuring that publishers can track every use made of digital copies and trace where each copy resides on the net;
(f) Protect every digital copy of every work technologically (e.g. by encryption) and make illegal any attempt to circumvent that protection;
(g) Force on-line service providers to become copyright police, charged with implementing pay-per-use rules; and
(h) Teach the new copyright rules of the road to children throughout their years at school" to raise "copyright conscious" people. (19)
Amendments like those found in the "White Paper" are important to those utilizing the digital domain. They too are controversial in that they are seen as a threat to the interests of readers, researchers and other copyright consumers. Proponents think the "white paper" merely confirms copyright protections in cyberspace equivalent to those appreciated in other forms of distribution. Opponents, however, argue that this interpretation of copyright law is not consistent with history and good public policy. If parties challenge proposed amendments, there may ultimately be a compromise in changes made to the Copyright Act, leaving the burden of protection on only the two remaining sources: technical restrictions and contractual restrictions.
To anticipate the survival of copyright protection is logical, for it has weathered many "storms". To expect survival without change in copyright legislation is impractical. In fact, the industries the copyright laws protect may indeed themselves need to adapt to this new digital medium.
Copyright law, in relation to photographs on the Internet, is certainly a matter for concern. The ease of reproducing digitized materials, and the ease of forwarding such materials over computer networks, may be pushing the notion of authorial control to its limits. (25)
The state of the copying art for digitized materials is quickly becoming a facilitator to unauthorized copying. Digital photographers, and others placing their works on the Internet, will be forced to turn to other forms of protection like scrambling devices; amendments to the Copyright Act that expand the definition of "infringement" in the digital world; and contractual restrictions.
1. Pamela Samuelson, The Copyright Grab, http://www.hotwired.com/wired/,April 1996, at 2.
2. Id. At 3.
3. Justice Sandra Day O'Connor, Feist Publications, Inc. V. Rural Telephone Service Co., 499 US 340, 349 (1991)
4. J. Dianne Brinson and Mark F. Radcliffe, Multimedia Law Handbook, a Practical guide for Developers and Publishers , Ladera Press at 132.
5. I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital World , Richmond Journal of Law and Technology, April 17, 1995, at 3.
6. P.J. Benedict Mahoney, The Copyright Website , "Copyright Fundamentals", at www.benedict.com.
7. Benedict at "Duration of Coyright"
8. The Software Publishers Association Legal Guide to Multimedia, by Thomas J. Smedinghoff, Addison-Wesley Publishing Company.
9. John P. Barlow, The Economy of Ideas: A Frame work for Rethinking Patents and Copyrights in the Digital Age , WIRED, Mar. 1994, at 86.
10. The Copyright Website, "Implied Public Access", by P.J. Benedict Mahoney, at www.benedict.com.
11. John P. Barlow, The Economy of Ideas: A Frame work for Rethinking Patents and Copyrights in the Digital Age , WIRED, Mar. 1994, at 86.
12. Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: A Preliminary Draft of the Working Group on Intellectual Property Rights (July 1994).
13. P.J. Benedict Mahoney, The Copyright Website , "Content", at www.benedict.com.
14. Paul Goldstein, Copyright ¤1.1, at 5 (1989)("The constitutional clause empowering Congress to enact copyright statute reflects the belief that property rights, prperly limited, will serve the general public interest in abounding national culture").
15. . I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital World , Richmond Journal of Law and Technology, April 17, 1995, at 38.
16. Congress responded to the problems of digital music recording with the Audio Home Recording Act of 1992, U.S.C. ¤¤ 1001-1010 (Supp. V 1993)
17. Id at 11.
18. Christopher J. Newman, Men on the Net , http://www.contrib.andrew.cmu.edu/~nifty/men.html, 1996.
19. Id at 87.
20. 17 U.S.C. ¤301 (1988)
21. U.S. Const., Art. VI.
22. Hines v. Davidowitz , 312 U.S. 52, 67 (1941), reaffirmed in Sears, Roebuck & Co. V. Stiffel Co., 376 U.S. 225, reh'g denied, 376 U.S. 973 (1964)
23. I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital World , Richmond Journal of Law and Technology, April 17, 1995, at 26.
24. I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital World , Richmond Journal of Law and Technology, April 17, 1995, at 13.
25. Id at 45.