Our Portal into the Law of Intellectual Property and Related Areas - From Copyright and Trademark through DMCA to Section 230, CDA, CAN-SPAM and Warning Pages.
Copyright Basics for Adult Webmasters
J. D. Obenberger, Attorney at Law
© 2012 J. D. Obenberger, All Rights Reserved
Our site also discusses these related matters:
This Page was last updated December 17, 2012.
Copyright is generally considered a fairly straightforward area of law, but there is a significant amount of confusion when it comes to applying the concept to the online industry. But don't be confused. A bare copyright alone is no guarantee that the content can lawfully be published; before publication of any item, a thorough "publication clearance" review must be undertakes to consider other legal obstacles to publication, inquiring to consider whether clearance has been obtained for the persons, things, and places depicted, whether the work is legally obscene, whether Section 2257 has been (and is) being complied with exactly, and whether any other legal imediments to publication exist.
The information contained on this page is aimed at adult webmasters, the producers of adult websites, sexually-explicit images, videos and adult films, and everyone who publishes, promotes, or distributes it. In many ways, obscenity defense, Section 2257 Compliance, and model release issues aside, this is the real heart of the economy of the adult Internet, the product that is sold online.
Don't think of any image appearing on your site as just a two-dimensional representation of reality. Think of it as possessing more dimensions than two: Copyright (and even copyright has multiple dimensions, such as the ad-libs of the perfomers which themselves may vest their creators, the performers, with copyright protection, background music, background radio and television, posters and works of art, etc.), the right of Publicity belonging to persons or associated with the places depicted, Trademark, and laws designed for the protection of children (both as performers and potential viewers), must all be taken into account, at a minimum, to ensure liability-free publication. Each of these is a matter you must contend with before you publish any image or you may face either criminal or civil liability or both. When publishers have a lot to lose, as ih the slick, clay-coated paper magazines, a thorough and detailed "publication clearance" must be obtained for every content element before it is published. Whether you are rich or poor, you stand to lose evertything of value to you if you do less than this. Go through publication clearance with everything you publish. The warranty and defend-and-hold harmless indemnification of an impecunious independent producer may be an inadequate measure to protect you from your liability as a publisher: as a general rule, it is impossible to contract away your own liability. You must investigate into everything you publish, and if you fail to do so, it is likely to catch up with you eventually, usually in a way that is unpleasant and expensive.
While the technology of digital distribution is new, a blink of the eys in historical terms, albeit perhaps the most significant blink in history, the essence of its economy is as old as human commerce. Adult websites are, very simply, labor-saving devices. Virtually anything you can imagine in the way of adult imagery and video is available somewhere free online for the taking, legally or otherwise. If one desires any of the most popular genres of porn, large breasts, interracial, youthful models, tattoos, whatever, one can find them and pay nothing. A topical adult website centering on a a narrow niche is the most likely to succeed because it offers the best price/value advantage for the surfer who needs to scour the Internet looking for his narrow interest. When one assembles those hard-to-find images in one place, just like a washing machine or the sluices that separated sand from gold in the prospecting fields, one offers real value to the surfer by saving him hours of fruitless searching. If you intend to create a thing of such value to people, it becomes your job to protect the value of what you have labored to offer the market. That is one of the keystone principles of the adult online business.
Through the resources of this site offered freely to you, and designed to entice you to the belief that our firm is where you should go for your legal services, you will learn why it is prudent to register your copyright whenever you update it, but in no event no less frequently than once every three months, and many other non-obvious techniques that can make or break your success. But these resources are no substitute for personal guidance from a lawyer who knows where the mines are buried. Whatever kind of online merchant you are, whether you run an online adult toy store, an online video store, a pay site, a clip sales site, a free site, or a tube site, you need to understand intellectual property and to defend your copyrights and trademarks against infringement or others will simply steal what you have labored to create and the ideas that you have developed.
It is safest to think of copyright like any other ownership rights, that is fundamentally the right to stop other people from using it more than any sense of an unlimited right to use it as you please. Just because you own some land called Blackacre, it does not mean that you are necessarily empowered to built a house, dig a well, damn a stream, or shoot rabbits on Blackacre. Ownership alone merely grants you rights to evict and sue the trespasser; even then, if you are not vigilant in enforcing your rights, others may aquire rights by prescriptive easement or adverse possession, and there are analogies in the law of intellectual property just like those situations. We discuss the DMCA and how it works to protect your copyright here. Valuable information about other related "Intellectual Property" rights such as Trademark and the Right of Publicity are located elsewhere on XXXLAW.COM.
Following is a discussion of basic copyright issues and how they apply to the online adult industry.
What is Copyright?
Copyright is a method of protection for authors of original works such as literature, computer programs, music, artistic pieces and photographic images. The protection provided by copyright arises under Title 17 of the United States Code. A copyright gives the owner the exclusive right to do or authorize others to: reproduce, prepare derivative works, distribute copies, publicly display and generally use the material that carries the copyright in exchange for something, typically a royalty or fee. The copyright owner often grants this use through a License Agreement, but can sell it outright.
Who Can Claim Copyright?
Copyright protection is created IMMEDIATELY upon reducing the material to a tangible medium. For instance, I automatically own the copyright to this article upon completing it. I am NOT required to file for an official copyright with the US Copyright Office to perfect a copyright (as once was the case!). However, if I want to sue a person for using my article without permission, I must first register it.
What If I Hire Someone To Create A Site For Me? To Create Content? To Write a Script?
If you hire a person or company to handle, for instance, the design of your site, the question of "work for hire" comes to the forefront. In the absence of a written "work for hire" agreement or a formal employment relationshp, the creator, that is your hired contractor, is considered to be the author of the material created, possessing all rights. The danger is that you may spend considerable money for the creation of a work and eventually learn that all you've obtained is a licesne to use it rather than ownership, and that your contractor is licensing the same or very nearly the same material to your competitors. To make sure that you alone own what you've paid to create, the following must occur:
|1.||the work must be prepared by an employee within the scope of his or her employment, OR|
|2.||the work must be specially ordered or commissioned for
Number 2., above, describes a "work for hire". To be legally effective, it must be in writing, and to be safe, it should specifically use the words "work made for hire".
It is our strong suggestion that you have a contract with any party that you hire that includes a clause clearly establishing that the copyright to the product produced is owned by the hiring party, not the party being hired to produce it. This issue pops up repeatedly, so make sure you protect yourself. This office includes template "work for hire" agreements in our standard package of forms provided to annually retaining clients. Neither they nor any other forms are provided outside an attorney-client relationship.
How Long Does A Copyright Exist?
A copyright exists for the life of the author plus 70 years after the author's death. If two people work on the project, both hold copyrights on it that last for the period noted above.
Can I Transfer A Copyright?
Yes. To make the transfer effective, the transfer must be in writing and signed by the owner of the exclusive right to claim copyright on the material. Such a transfer is typically handled by creating a contract between the two parties in question. It is called an assignment, and it should be registered with the Copyright Office just as a land transfer is registered at the court house. To buy an a work that has been the subject of an unregistered assignment is dangerous. The whole transfer of all ownership interests is called an Assignment.
Can I License a Copyright?
Yes, you can give permission for others to use your work, and that permission can be limited or unlimited as to duration, media of publication, purpose, etc. Compensation can be by a flat price or by royalties. It may be exclusive or nonexclusive. It may provide for revocation on a breach of the conditions of the license. There is little in the law more insecure than an unwritten license, and the licensee should always secure a written license as his evidence of lawful use.
Should I Register My Copyright?
As noted above, you do not have to register with the U.S. Copyright Office to have a copyright in the item created. But you may not sue someone for infringement unless you have at least applied for copyright registration. Are there advantages to filing with the Copyright Office? Yes. They are as follows:
|1.||Establish a public record of the date of creation;|
|2.||Required prior to filing an infringement lawsuit;|
|3.||If made within 5 years of publication, creates an inference that the filing is valid; and|
|4.||If made within 3 months of publication of the work, damages and attorneys fees will be available in court actions.|
Number 4. above is critically important to the viability of almost every proposed infringement lawsuit. In order to make such suits practical, you need to provide for attorney's fees; in many cases, the cost of representation will dwarf the damages for infrigement; you lose the opportunity to recover them from the infringer if your registration comes later than three month's from first publication. Similarly, if you file within those first three months, you will be entitled to "presumed statutory damages" without proving them; proving the actual value of an infringement can be difficult and quite expensive and result in fairly speculative opinions about the damages. It is a very valuable entitlement to walk into court with presumed damages. In general, failure to register within three months of first publication loses these two critical advantages.
As you can see, there are significant advantages to registering with the U.S. Copyright Office. This is particularly true if you must sue a party that has copied your images or site elements. As you are undoubtedly aware, such an event only occurs every five minutes or so on the Internet!
Under prior copyright law, a copyright notice had to be affixed to the work in order for the work to receive copyright protection (for example: Copyright 2000 by John Doe). As of 1989, the notice requirement has been dropped. Accordingly, one should not assume that if a published work does not have a copyright notice on it, the work is free game to be utilized by anyone in any manner desired. This is an important point that a lot of people miss. You in the back: stop daydreaming and pay attention. To repeat: it is never proper to copy and republish a work owned by another, even if the image does not have a copyright notice on it, unless the express permission of the owner is granted.
Despite the lack of a notice requirement, anyone who does create original works should place a copyright notice on the works. To do so makes it that much easier to prove ownership of the work if another improperly appropriates the work. The work does not have to be registered with the U.S. Copyright Office before a notice is placed on the work - the work is protected regardless of whether or not a registration has been filed. In order to bring an action for copyright infringement of a specific work, however, the work must be registered with the Copyright Office, either before or after the infringement occurs.
The notice also deprives the defendant of making an argument that the infringement was innocent. This is an important point. In a copyright infringement lawsuit, whether or not the defendant knew he was misappropriating the copyrighted work of another is irrelevant. If the judge deems that the image the defendant published is in fact the original work of the plaintiff, the defendant has committed copyright infringement. This outcome holds despite the fact that a third party may have told the defendant that the third party owned the image and that the defendant had permission to use the image. "Strict Liability" applies in copyright infringement situations - either the defendant had permission to publish the images, or he didn't. If he didn't have permission, he loses the lawsuit (assuming the plaintiff proved he did own the work). A defendant's lack of knowledge of infringement, however, may help to mitigate the damages awarded against the innocent infringer.
Adult Content Materials
Adult content materials may be registered. See this short article.
Perhaps the single most misunderstood area of copyright law is the concept of Fair Use. Essentially, a third party can use a copyrighted items without the permission of the owner if the third party uses portions for purposes such as criticism, news reporting, teaching, research, commentary or scholarship. Generally, the Fair Use Doctrine justifies the use of a part or portion of the work that does not amount to the whole item protected by copyright. Copying an image and posting it on the net as part of a pitch to get people to come to a site is not a permissible "Fair Use." For instance, copying images off of a site for the purpose of creating a TGP page is not "Fair Use" and is a copyright violation unless you "licensed" or permitted by the rights owner to do so, for example, if you are an affiliate of the site owning the particular content and the terms and conditions of the affiliate program allow for such use. Additionally, copying an image that you find posted to a chat group or news group is not a proper basis for defeating a copyright claim based on the concept of "fair use." To the contrary, the courts are ready to demonstrate that such uses are very unfair uses and award damages against infringers.
If you have further questions regarding copyrights or this article, do not hesitate to contact us.
This article is provided merely for the eduction of the general public; it is not legal advice; it does not establish an attorney-client relationship. If you need legal advice, contact a lawyer. If you are arrested, invoke your right to remain silent, consent to nothing, contact a lawyer immediately, but do not offer physical resistance.
Joe Obenberger is a Chicago Loop lawyer concentrating in the representation of adult businesses, online and offline, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is email@example.com.