Protecting Your Rights on the Web
by Victor S. Perlman, Esq.
April 01, 2012 —
I have often thought that the three Ws that begin most URLs should not stand for World Wide Web. Rather, they should stand for Wild Wild West. Anyone who pays the slightest attention to rights—whether intellectual property or personal privacy, and whether as an owner or a user—knows that the Web is a territory that is self-policed or not policed at all. There simply is no sheriff in town.
That kind of system typically works in favor of the bad guys. Rustlers generally seem to be able to steal at will, with little or no consequence. Of course, sometimes a vigilante group, like the RIAA (the Recording Industry Association of America), will manage to pursue some of the thieves, make life miserable for them and get restitution for the owners. However, the overwhelming majority of the robbers seem able to get away with their crimes without detection or, if discovered, without significant penalty. All in all, the cards are stacked in favor of the bad guys.
So, what is a law-abiding property owner to do to protect him/herself on the Web? Unfortunately, there is no silver bullet. There is nothing that is completely effective in protecting your rights. The good news is that there are several things that you can do to reduce the chances of having your works stolen, increase the chances of discovering any thefts that do occur, and maximize your ability to get adequate restitution when you find someone stealing your work. I will talk about the beginning parts of that this month and, because of space limitations, will discuss the rest next month.
First, you have to adjust your mindset and assume that anything that you place on the Web is vulnerable and stands a good chance of being stolen, so you have to do whatever you can to protect your property.
Second, you need to make, or at least know, the rules of the ranch where you are keeping your property. If it is your own Web site, you may want to have a set of rules, to which a visitor must affirmatively agree by clicking on an “I agree” button or something similar that makes the visitor aware that the contents of the Web site are your property and that taking anything is theft. There are lots of different ways to do that, and you have probably seen a number of variations in the course of your Web surfing. Also, you need to decide whether your Web site is open to the public, whether it needs a password for access, or whether you want a hybrid, with some images residing in pages that are restricted. Obviously, the more people who have access to view your works, the more exposure you have to potential buyers. Unfortunately, those prospective buyers are also prospective infringers.
If the Web site is not your own, you need to check the terms and conditions of placing anything on that Web site to make sure that you know what you are really doing by posting images. In a previous column, I discussed the risks that lurk in some of these detailed documents. Some Web sites have terms and conditions that are so draconian that merely placing your images on them makes you transfer very significant, and valuable, rights to the Web site owner.
Next, like cattle owners, you will want to brand your property. You can make that brand visible by placing a copyright notice on each image. You have a lot of options, including the size, location and contents of the notice. Obviously, splashing a giant © symbol with your name and contact information over the entire image is best from a deterrence perspective. Equally obvious, that makes the image look like, well, if you keep following my cattle metaphor, you know what, though the more prominent the notice, the greater the deterrence. You need to decide whether to use this kind of branding and, if so, you need to choose the details.
The other part of branding is invisible, at least at the surface level and involves inserting metadata in the image file. At the very least, you need to include a copyright notice (© followed by the year of first publication, followed by your name) and your complete contact information. You will also want to a statement of your default rules, whatever they are. Typically, they would probably state that all rights are reserved and that no license is granted or rights transferred in the absence of specific written permission from you. Although earlier versions of Adobe Photoshop had default settings that made it harder to embed and maintain such metadata, recent versions have improved that situation. Similarly, default settings that used to strip such metadata from files when placed on Web sites (in order to reduce file size for faster download speeds) have also been improving.
At this point, you have done about as much as you can to deter thieves from stealing your work, to being able to establish that the work is actually yours if it is stolen, and to being able to show that anyone who stole your work knew what he/she was doing. Next month, I will talk about discovering when your work has been stolen and by whom, and what your options are when that happens.
Victor Perlman is General Counsel to the American Society of Media Photographers, Inc. (ASMP). He has also served on the Boards of Directors of the Media Photographers Copyright Agency, Inc., the Copyright Clearance Center (CCC), and the Philadelphia Volunteer Lawyers for the Arts. He has frequently appeared as an author in various publications and is co-author (with Richard Weisgrau) of the book Licensing Photography, published by Allworth Press.
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