One of the worst assumptions going around is that if something is for sale on on a site then there are no copyright issues. This assumption relies on the use of the Digitial Millenium Copyright Act (DMCA) takedown procedure, with the belief being that if no one has issued a takedown then the design is okay. However, this is simply not true - it may mean that the owner either doesn't know about the infringement or doesn't have time to deal with it at the moment. The only way a design has no copyright issues is if it is an original de novo effort by the designer, based upon their own personal photographs of the natural world or drawn solely from their internal vision. The minute you lift a design or design idea from a magazine, website, or book, you are entering the world of potential IP infringement and you must begin documenting what gives you the right to do so (such as a documented license that permits you to create derivative works for sale) as well as your sources so you can defend your choices in the future should owner of a source challenge your right to use their design. I have seen instances where someone grabbed designs requiring licenses and posted them without permission to a paid download service that offered designs for sale so buyer beware - even if you think you have a valid license you may not, unless you deal directly with the original artist and even that assumes they haven't signed their own rights away to someone else.
First, let's be clear about what the DMCA covers. It is a section of the Online Copyright Infringement Liability Limitation Act (OCILLA), which governs files while on display on the Internet. It does not govern tangible goods such as print products, only the display of the image online. DMCA provides something called "safe harbor" for online service providers (OSPs) to limit their liability for an infringement which is housed on their network. To qualify as an OSP, it must not make any money from or derive a benefit from the posting. The OSP is defined as follows within the law:
- "(A) As used in subsection (a), the term "service provider" means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.
- (B) As used in this section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefore, and includes an entity described in subparagraph (A)"
A few of us have discussed elsewhere whether or not my favorite print on demand site is truly an OSP, but for the sake of argument, lets just say that at least by using the DMCA takedown procedure they are demonstrating some form of good faith effort to deal with an incredibly sticky problem fraught with emotions of designers who may not fully comprehend the seriousness of IP issues.
The DMCA has a very strict procedure for their "safe harbor" takedown procedures. It requires that the true owner contact the (OSP) and request a takedown, that the OSP expeditiously process the takedown and notify the alleged infringer, that the infringer get 10 days to request restoration, that the OSP notify the owner if they have received a proper request to restore the item to a site from the infringer, that the owner then has 10 days to file action in court, and then after that the OSP can repost the image/file. NOTE: this takedown procedure governs the online availability of an image or other multimedia file - not printing it onto fabric and selling it - that's not an OSP activity by definition, because at that point the service is deriving commercial benefit from the design.
The safe harbor (protection for the OSP, not the infringer) states the following order of events must occur:
- Owner of IP notifies the OSP of the alleged infringement
- OSP notifies the poster and takes down the offending work
- Poster has 10 days to demonstrate right to post - ie copy of license to use or other evidence such as fair use
- If the poster provides a reasonable certification that they did legitimately have a right to post the file, the OSP provides this rebuttal to the Owner of the IP. NOTE: THIS STARTS A 10 DAY CLOCK FOR THE OSP TO FILE IN COURT
- If the Owner does not file in court within 10 days, OSP can repost the file to the site.
NOTE: For Safe Harbor to apply, this procedure must be followed rigorously - no exceptions to the outlined process.
NOTE: At no point may the OSP tell the poster to contact the owner themselves - that would leave the 10 day clock for filing in court "unset."
NOTE: Terms of Service may be applied by an OSP at any time to refuse to repost material or even shut down an account. You agree to a TOS when you create your account. Notwithstanding the DMCA takedown/restoration procedures, an OSP has every right to enforce their own TOS and shut down your account or refuse to put a design back online that it finds problematic. You agree to the TOS when you create an account with your service.
If an "Owner" knowingly and maliciously makes a false claim of ownership and you have your work taken down inappropriately, there are provisions for an OSP to recover damages for such false claims so there's some protection in the DMCA against false claims of ownership.
It is important to know that in addition to issuing takedown notices under the Digital Millenium Copyright Act (DMCA) and suing for infringements of online files, copyright holders are entitled to sue in court to recover damages for other infringements such as the printed and sold versions of the designs or derivative works that are neither true parodies or fair use. Willful violation can take the lid off of the statutory damages amount and lets them recover court costs and lawyer fees. Statutory damages for copyright violations run between $750 and $30,000 per work, at the discretion of the court. If the owners can show willful infringement they may be able to get up to $150,000 per work. Infringers who can show that they were "not aware and had no reason to believe" they were infringing copyright may have the damages reduced to $200 per work. IP is a business folks, and there is no money to be made if it is not enforced.
Forms of IP vary and so do the penalties for infringement. If you are using a registered trademark as a design element, please be aware that the DMCA safe harbor provisions and takedown procedures do not apply. A trademark owner is not bound by DMCA takedown procedures. Trademark owners MUST protect their marks or they risk losing them during the required periodic reviews and renewals of their marks. You can very easily search the registered database for U.S. trademarks. International marks can be found via http://www.uspto.gov/ip/iprtoolkits.jsp. It is so easy to look up trademarks online that it's hard to think of any excuse for misusing them. Statutory damages for trademark infringement are pretty high, see the exact language governing the amounts of damages that can be recovered at http://www.law.cornell.edu/uscode/text/15/1117.
There's a rumor circulating among designers that some lawyers in a design firm told their designers it's okay to copy something if they are 20% different. If any lawyers actually said that, the firm should probably hire new lawyers if they are still in business. There is no such rule of thumb for what constitutes infringement in court. Think about it - what on earth would be the measure for being 20% different? If you want some interesting reading, look up a few infringement cases. The legal ballet and thought process is dizzying and no one who eventually loses ever thinks they were wrong going in. They always have a justification for their actions and end up pretty stunned, hurt, and angry when the verdict is handed down with the bill.
What about "fair use" - can't you use a piece of something? Anything you are using to produce a product on my favorite print on demand site is a commercial activity, even if you are the only one who ever buys it and you only buy a swatch, so in most cases you will pretty much be ineligible for fair use unless you are producing a true parody (and that is really difficult to prove, especially when you are selling something). Look up the definition onhttp://www.copyright.gov/ and you will quickly see it's not going to apply to most commercial situations. Use this Chart by Cornell University re Copyright Term and Public Domain Status in the United States to see if a work is likely to be in the public domain before you start working with it and be aware that even if a painting or object is very old, unless you are working directly from the object or your own photo of it, you may be using a source photo that is protected by a current copyright. Also, just because something was found on the Internet doesn't mean it is IP-safe. Mistakes are made and much Internet content has copyright issues. Clipart frequently has a disclaimer saying you can't use it on the Internet or cannot use it on products offered for sale without paying additional licensing fees. Read all the licensing material carefully before making a decision to reproduce or base your design on others' work and pay for the appropriate licenses for the kind of work that you will be doing. If you do decide to incorporate the work of others into your designs, document your sources and copyright licenses carefully and be prepared to include that information in the narrative description of your design to ensure that your customers are armed with that information as well.
Any time there are infringing designs on my favorite print on demand site it becomes a concern to all of us since it could lead to the business itself being sued, resulting in higher costs or even loss of the printing service. There are over 10000 designers on this site with about 200,000 designs for sale, of which somewhere in the range of 2,000 to 4,000 appear to be questionable in the use of IP - that 1 to 2 percent could cost everyone dearly and I'm asking designers to be aware and be careful.
If someone is creating a work with currently registered marks or active copyrighted material in it, they'd be smart to remove all doubt by incorporating such a phrase in their descriptions when they have permission. When publishing ask yourself if you have the right to put one of the following on your design:
- Design is entirely mine - I dreamed it up and it does not rely on any movies, books, posters, trademarks, photos by others, etc.;
- Design incorporates original references that are no longer protected by copyright or registered trademarks or design patents AND I HAVE PROOF THAT THE COPYRIGHT HAS EXPIRED;
- Design incorporates someone else's intellectual property but I have something in writing from the owner saying it's okay to use it;
- Design incorporates a work of the Federal Government and I am disclosing and not claiming any copyrights for that portion of my work.
- Pay close attention to licensing limitations on "public" source material - it may be okay to use it in an academic paper, but not okay to sell it on fabric. Remember that old stuff gleaned from a new book may have a copyright through its publication in the new book ( Museums often prevent photography so they can own the only licensed reprints.)
Read more discussions about intellectual property in the Flickr forums. One of the more interesting recent topics is that of personality or publicity rights of both living and dead individuals which vary quite widlely by state and country - there's a whole wide world of IP rabbit holes just waiting to be run down!