Social Networking Sites Present Challenges for Copyright Protection

A recent survey by public-relations firm Ruder Finn indicated that almost 38% of mobile phone users go online to post photographs or videos on social networking sites like Facebook and Twitter. These photographs or videos can actually be “original works” under copyright laws.

Many social networking site users are likely to be unaware of the potential copyright issues associated with posting such original works. Once the work is on the Internet, it must be assumed that it will be available to all parties, both intended and unintended. What legal remedies are available if somebody copies a photograph or video and uses it for his or her own purposes without the owner's consent?

Registration

Under the copyright laws, different remedies are available based on the status of a work. For example, the remedy may depend on whether the work is registered, unregistered, published or unpublished. Generally, under the copyright laws, an author has rights as soon as an original work of authorship is fixed on a tangible medium of expression. Therefore, rights can exist as soon as photos of your child's birthday party or your vacation are taken. However, the work must first be registered with the Copyright Office in order to enforce those rights.

Whether a work is registered or unregistered with the Copyright Office is a simple determination. What is more difficult is determining whether a work, such as a picture or video, is published by virtue of being available online. In the context of social networking sites, this issue is particularly unclear.

Why is the determination of whether a work is “published” important? Copyright law allows recovery based on actual damages or statutory damages. In many cases, actual damages can be difficult to determine or can be substantially less than statutory damages. Statutory damages under 17 U.S.C. '412 and attorney fees are available for unpublished works only if the work was registered before the infringement. For published works, statutory damages are available if the work was registered before infringement or if the work was registered within three months of the first publication.

The copyright statute defines a “publication” as the distribution of copies of a work to the public by sale or other transfer of ownership or by rental, lease or lending. In addition, offering to distribute copies to a group of people for purposes of further distribution or public display also constitutes a publication. Mere public display of a work does not constitute a publication. See, 17 U.S.C. '101.

Posting As Publishing

With some forms of tangible medium, the determination of whether the work is published can be relatively simple, such as with physical prints of photographs, CDs or DVDs. For example, the reproduction of photographs or DVDs to offer for sale would clearly be considered a publication. Determining whether an online transmission is published can be a more difficult task.

For instance, the Copyright Office circular relating to photographs, circular FL-107, states: “The definition of publication in the U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding the distribution of their works to determine whether works are published.”

In Getaped.com Inc. v. Cangemi, the U.S. District Court for the Southern District of New York held that when a Web page goes live on the Internet, it is distributed and “published.” In that case, Getaped filed an action against Cangemi for allegedly copying portions of its Web site directed to selling scooters, and sought statutory damages. Cangemi based its defense on the theory that making a Web site available to the public was akin to a public display of art or the public performance of a play and did not constitute a publication.

The district court disagreed, reasoning that “merely by accessing a [Web page], an Internet user acquires the ability to make a copy of that [Web page], a copy that is, in fact, indistinguishable in every part from the original. Consequently, when a [Web site] goes live, the creator loses the ability to control either duplication or further distribution of his or her work. A [Web page] in this respect is indistinguishable from photographs, music files or software posted on the Web ' all can be freely copied.”

The holding in Getaped.com begs the question of whether posting a work on a Facebook or Twitter account is the same as posting the work on a stand-alone business Web site. A business has an incentive to have others view, print and distribute its ads from its Web site. But social networking users often grant limited access to selected groups.

If the work is only available to a select group of friends, for example, it's arguable that the work is more akin to a public display and not a publication. On the other hand, according to Facebook's Terms of Use, it claims to have a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.” Based on the holding in Getaped.com, one could argue that such a license transforms each post of content from a public display into a publication.

If posting a work like a photograph on a social networking Web site is determined to constitute a publication, then the date the work is posted initiates the three-month clock for filing a registration with the Copyright Office. If the work remains on the site for more than three months without a registration and is copied after the three-month period, the owner would then have to prove actual damages in order to recover under a claim of copyright infringement. If posting the work on a social networking site is not determined to be a publication, then the user would have to register the work before any infringement occurred in order to recover statutory damages.

This uncertainty in the law raises a number of concerns:

• How should the typical social networking site user prevent others from unauthorized copying and use of the user's material?
• Should every work posted on a social networking site be registered with the Library of Congress?
• Many social networking site users post images weekly or even daily; the frequency of copyright updates could be burdensome and costly. Is securing protection worth the cost and effort?

Conclusion

The widespread use of online social networking will require the copyright laws to address these issues with greater specificity in the near future. It is possible that statutory definition of “publication” may need to be changed to keep pace with current technology.

Copyright advocates have also requested the installment of a small claims court for copyright cases in order to lower the financial burden of litigating in federal court. Until then, copyright and Internet law are sure to be faced with new and challenging issues that will lag behind technology.

Based on the current landscape, the following should be taken into account before posting media to the social networking sites:

• Read the fine print before uploading. Many social networking sites will list the rights that you waive by uploading media.
• Register any important or commercial work. If you plan to offer items for sale or a work is particularly valuable to you (either commercially or personally), register it with the U.S. Copyright Office.
• Mark your documents. The Digital Millennium Copyright Act (“DMCA”) protects the rights of artists whose works are exploited over the Internet. The DMCA assists copyright owners by punishing anti-circumvention techniques and devices. Photographs should be marked with clear language indicating the source of the material and whether it may be reproduced without consent. There is free software available that can mark your documents.

Most importantly, be careful. Be mindful that anything you post online can be counterfeited and fall into anyone's hands. You should be careful not to post anything that you are not willing to give up.

A recent survey by public-relations firm Ruder Finn indicated that almost 38% of mobile phone users go online to post photographs or videos on social networking sites like Facebook and Twitter. These photographs or videos can actually be “original works” under copyright laws.

Many social networking site users are likely to be unaware of the potential copyright issues associated with posting such original works. Once the work is on the Internet, it must be assumed that it will be available to all parties, both intended and unintended. What legal remedies are available if somebody copies a photograph or video and uses it for his or her own purposes without the owner's consent?

Registration

Under the copyright laws, different remedies are available based on the status of a work. For example, the remedy may depend on whether the work is registered, unregistered, published or unpublished. Generally, under the copyright laws, an author has rights as soon as an original work of authorship is fixed on a tangible medium of expression. Therefore, rights can exist as soon as photos of your child's birthday party or your vacation are taken. However, the work must first be registered with the Copyright Office in order to enforce those rights.

Whether a work is registered or unregistered with the Copyright Office is a simple determination. What is more difficult is determining whether a work, such as a picture or video, is published by virtue of being available online. In the context of social networking sites, this issue is particularly unclear.

Why is the determination of whether a work is “published” important? Copyright law allows recovery based on actual damages or statutory damages. In many cases, actual damages can be difficult to determine or can be substantially less than statutory damages. Statutory damages under 17 U.S.C. '412 and attorney fees are available for unpublished works only if the work was registered before the infringement. For published works, statutory damages are available if the work was registered before infringement or if the work was registered within three months of the first publication.

The copyright statute defines a “publication” as the distribution of copies of a work to the public by sale or other transfer of ownership or by rental, lease or lending. In addition, offering to distribute copies to a group of people for purposes of further distribution or public display also constitutes a publication. Mere public display of a work does not constitute a publication. See, 17 U.S.C. '101.

Posting As Publishing

With some forms of tangible medium, the determination of whether the work is published can be relatively simple, such as with physical prints of photographs, CDs or DVDs. For example, the reproduction of photographs or DVDs to offer for sale would clearly be considered a publication. Determining whether an online transmission is published can be a more difficult task.

For instance, the Copyright Office circular relating to photographs, circular FL-107, states: “The definition of publication in the U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding the distribution of their works to determine whether works are published.”

In Getaped.com Inc. v. Cangemi, the U.S. District Court for the Southern District of New York held that when a Web page goes live on the Internet, it is distributed and “published.” In that case, Getaped filed an action against Cangemi for allegedly copying portions of its Web site directed to selling scooters, and sought statutory damages. Cangemi based its defense on the theory that making a Web site available to the public was akin to a public display of art or the public performance of a play and did not constitute a publication.

The district court disagreed, reasoning that “merely by accessing a [Web page], an Internet user acquires the ability to make a copy of that [Web page], a copy that is, in fact, indistinguishable in every part from the original. Consequently, when a [Web site] goes live, the creator loses the ability to control either duplication or further distribution of his or her work. A [Web page] in this respect is indistinguishable from photographs, music files or software posted on the Web ' all can be freely copied.”

The holding in Getaped.com begs the question of whether posting a work on a Facebook or Twitter account is the same as posting the work on a stand-alone business Web site. A business has an incentive to have others view, print and distribute its ads from its Web site. But social networking users often grant limited access to selected groups.

If the work is only available to a select group of friends, for example, it's arguable that the work is more akin to a public display and not a publication. On the other hand, according to Facebook's Terms of Use, it claims to have a “non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook.” Based on the holding in Getaped.com, one could argue that such a license transforms each post of content from a public display into a publication.

If posting a work like a photograph on a social networking Web site is determined to constitute a publication, then the date the work is posted initiates the three-month clock for filing a registration with the Copyright Office. If the work remains on the site for more than three months without a registration and is copied after the three-month period, the owner would then have to prove actual damages in order to recover under a claim of copyright infringement. If posting the work on a social networking site is not determined to be a publication, then the user would have to register the work before any infringement occurred in order to recover statutory damages.

This uncertainty in the law raises a number of concerns:

• How should the typical social networking site user prevent others from unauthorized copying and use of the user's material?
• Should every work posted on a social networking site be registered with the Library of Congress?
• Many social networking site users post images weekly or even daily; the frequency of copyright updates could be burdensome and costly. Is securing protection worth the cost and effort?

Conclusion

The widespread use of online social networking will require the copyright laws to address these issues with greater specificity in the near future. It is possible that statutory definition of “publication” may need to be changed to keep pace with current technology.

Copyright advocates have also requested the installment of a small claims court for copyright cases in order to lower the financial burden of litigating in federal court. Until then, copyright and Internet law are sure to be faced with new and challenging issues that will lag behind technology.

Based on the current landscape, the following should be taken into account before posting media to the social networking sites:

• Read the fine print before uploading. Many social networking sites will list the rights that you waive by uploading media.
• Register any important or commercial work. If you plan to offer items for sale or a work is particularly valuable to you (either commercially or personally), register it with the U.S. Copyright Office.
• Mark your documents. The Digital Millennium Copyright Act (“DMCA”) protects the rights of artists whose works are exploited over the Internet. The DMCA assists copyright owners by punishing anti-circumvention techniques and devices. Photographs should be marked with clear language indicating the source of the material and whether it may be reproduced without consent. There is free software available that can mark your documents.

Most importantly, be careful. Be mindful that anything you post online can be counterfeited and fall into anyone's hands. You should be careful not to post anything that you are not willing to give up.