When it does happen, what should you do?

Document first

The first thing you should do is to document the act of infringement itself.  Since there are so many things for you to document – from screenshots to various site stats and rankings – I’ll just point the way to other articles that have covered the documentation process exhaustively:

• Dealing With Online Copyright Infringement from MarketingDock.com
• FAQ: What Can I Do About Internet Copyright Infringement? at SEO Logic

Try to communicate

Unless the theft seems malicious or has serious consequences, it often helps to take a calm, but firm approach.  While you may be hurt initially, don’t get emotional when writing that first email or making that call.  After all, they might not have had proper knowledge of copyright law when they did it, or it might be an honest mistake (such as what happened to fellow WWD blogger Aliza Sherman a few months back).  Show them the facts and tell them what they need to do to set things straight.

Of course, this doesn’t mean you should have warm, fuzzy feelings for copyright violators.  There is a huge difference between a scraper site and 10 year old girl who is a first-time blogger.  It’s perfectly fair to get web hosts and search engines to ban the former, but it would be an unnecessarily scathing experience for the latter.

The point I am trying to make is that when you communicate with the person at fault, do it formally.  Don’t send a flaming rant or make a defamatory post in your blog.  (Yet.)  Remember that you’re a professional, and everything you send out must show this.  If it is an obvious, honest mistake that can be fixed with a little communication, then it’s best to take that route.

Get help

If you’re unsure how to approach this situation, look at the legal facts and turn to a professional.  There are some websites where you can get free legal advice, which you can use as a starting point to clear up the legal aspects of the violation.  Also, familiarize yourself with the actual provisions and exceptions of the DMCA (Digital Millennium Copyright Act).  If reading the actual text seems too tedious for you, at least read the Wikipedia page on the DMCA.

It’s important to remember that nothing beats the advice of a licensed lawyer that you can discuss all these things with.  That’s why I noted in a previous post that a lawyer is one of the most important contacts you could ever have.

This is especially important if the case is vague, such as two blog posts discussing the same subject with the same angle, or two website templates that look similar.

Copyright infringement may be rampant, but many internet users are starting to take it seriously.  There might come a day when it no longer happens, but until then, we should be standing up for our rights to our work.

Has your work been stolen online? What did you do about it?

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The photographer was not satisfied. He asked that I pay him retroactively for using his image. I argued with him that the blog was not a commercial one, it didn’t get very much traffic at all, and even though I did not link back to his image, it was embedded using the actual image HTML code from his site so all anyone had to do was view the image to see the source. He persisted. After further research, I learned that I was in the wrong.

To find out more about photo rights on the Web, I turned to a lawyer, Deena B. Burgess, Esq., Managing Partner with the Law Offices of Deena Burgess, and gave her a few scenarios to comment on. Here is what she had to say.

Scenario 1: I copy someone else’s image onto your computer and upload it onto my FTP site but I include a copyright notice and link back to the photographer’s site (I do not notify them that I have done this).

From Burgess:

The first thing that needs to be understood is that every photograph is the intellectual property of the person who took the photograph.  Copyright protection attaches even where the person has not put a copyright notice and even if the copyright is not registered with the Copyright Office.  (You do, however, need to register with the Copyright Office in order to sue on your rights.)

Every copyright holder has certain exclusive rights that attach to their work.  These include the right to reproduce, distribute, display and create derivative works from the work (there are others that don’t apply to photography).  Without permission, even if you were to give credit to the copyright holder, you would still be infringing their work.

As far as my liability for you loading the copyrighted of the work onto my computer and uploading it from there, I could be subjected to vicarious liability for my part (or, more accurately, my computer’s part) in the copyright infringement.

If you were to contact the photographer and ask for permission to use the photo, you then would not be violating the rights of the photographer provided you abide by whatever terms the two of you agree to.

Scenario 2: I don’t copy their image at all but instead embed it onto my site using the URL of the image that resides on their site – so it appears on my site. I include a copyright notice and link back to the photographer’s site (I do not notify them that I have done this).

From Burgess:

Again, since the copyright holder has the exclusive right to distribute, display and create derivative works from their work, even embedding the photo on your site would violate the copyright on that work.

If you were just to include the link on your site where the image is not displayed, rather than the photo, you would not be violating the photographer’s copyright to the work.

Scenario 3: I don’t copy their image at all but instead embed it onto my site using the URL of the image that resides on their site – so it appears on my site. In this case, I DO NOT include any credit or link back (I do not notify them that I have done this). But if someone were really interested in the source, all they would have to do would be view the image to see where it came from.

From Burgess:

Similarly to the answer to question 2, the display of the image on your site without permission is a violation of the exclusive rights of the photographer.

You need to either ask permission to use the work (which is often freely given when you explain that you’re crediting the source in any way that they’d like) or you need to include the link rather than the picture itself.

Back to my bad move on using a photographer’s image without permission, without credit and without a link. Learning that I could negotiate something other than pay for my infringement, I offered to feature him in an interview on my blog and include a small ad on the blog linking to his site. He was thrilled with the offer and accepted both as payment for the past use of his image.

Have you infringed on someone else’s copyright or had someone infringe on yours? How did you resolve the issue?

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I’m wondering what my rights are in terms of reproducing my own work on a portfolio-style Web site. I’m a designer, developer and writer/editor, and have been developing a site to showcase my work. Trouble is, much of it (perhaps even all of it) is now owned by other firms and individuals.

Given that, am I allowed to reproduce the work on my own Website for informational purposes? I wouldn’t be profiting directly from having the work present there (i.e. I wouldn’t re-sell my work to another client), but I could see how a case could be made that I’m profiting from it in the sense that I’m using it as part of my marketing materials.

Obligatory disclaimer: I am not a lawyer. But I’ve been working with copyrights for decades now, so I’ve certainly got some thoughts on this.

It sounds like you’re worried mainly about copyrights, and wondering if you can raise a “fair use” defense. First, let’s clear up a common misunderstanding: fair use of copyrighted materials has nothing to do with whether you make a profit off of the use. If you print copies of someone else’s book, and give them away, you’re engaged in copyright violation even though you made no money at all.

The applicable law (section 107 of Title 17 of the US Code) sets out a list of purposes that may fall under fair use:

purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research

This isn’t an exhaustive list, though, so portfolio presentation might still be fair use. You need to turn to the list of factors that the law specifies in judging whether a particular use falls under fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Naturally, the courts have gotten involved in interpreting what this means. The closest case that I know of to your question is Kelly v Arriba Soft Corporation, in which a publisher sued a search engine over displaying thumbnails of images, and inline frames containing the publisher’s images. The thumbnails were found to be fair use. What weighed in this decision? That the purpose of the thumbnails was different from that of the original site, that they weren’t using the entire original work, and that they did not have a negative effect on the market for the originals.

So – if you want to make a fair use claim for screenshots of sites you’ve worked on as part of a portfolio, you’re probably in good shape if you ever have to defend a copyright suit. It seems to me that your use is clearly different from that of the original; presumably you won’t reproduce the entire sites; and you won’t affect the market for those other sites.

That said, the copyright question is not the end of the story here. Even if you win a lawsuit, you still lose in lost time and legal expenses. The best bet is to make sure you don’t get sued in the first place. I would strongly urge you to simply ask your clients whether they mind you featuring their sites as screenshots – perhaps even with links back to the full sites – on your portfolio site. In the future, a best practice is to spell out any reuse you might make of work done in any contract you sign. For example, my own software consulting contracts generally reserve to me the right to use segments of code as examples when I am developing books or articles. Settling these questions up front is vastly preferable to litigating them later.

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