by J. Betty Ray
In an age and a medium where I could steal just about anything and call it
my own, copyright and trademark laws are getting a royal workout. Jodi Sax
is an L.A. entertainment lawyer who specializes in weeding through these
complex issues. Her self-designed site, Lawgirl.com, provides a beacon of clarity amid a morass of stupifyingly complicated legalbabble, and includes a mountain of
references, a few rants, an advice board, and a monthly Web Hunk profile,
"the most popular feature on the site," she admits.
As she was packing up for a week of schmoozing at SxSW, we sifted through
old laws, new technologies, and the implications for those of us who enjoy
a good satirical romp on the Web.
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Tripod: What is the best recourse a person can take if they believe that
someone has stolen their design, copy, or code?
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JODI SAX: Legally, you can write a cease and desist letter, and if that
doesn't work, sue for copyright infringement. But realistically you can do other
things, such as contact the site's host and ask that they exert some pressure on
the site to take it down. In my experience, a strongly worded cease and
desist letter from a lawyer usually does the trick.
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Tripod: What defines copyright infringement on the Web and what has to
be present in order for an infringement case to be won?
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JS: Copyright infringement on the Web is defined in the same way
as in any other context: The unauthorized copying, preparation of
derivative works, distribution, performance, or display of copyrighted
works.
In order to win a copyright case, one must establish ownership of a valid
copyright and copying by a defendant (or violation of one of the other
exclusive rights enumerated above). Absent direct evidence of copying, you
can show access to the work and substantial similarity between works. Note
that you must register a copyright before you can bring an infringement
suit.
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Tripod: What percentage of these cases are actually won?
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JS: Oh I have no idea. Probably fewer than 10% of cases even go to
trial. They usually settle.
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Tripod: In your copyright registration page, you have a series of
sections, yet not one on the Web specifically. Is the Web considered
"multimedia" for purposes of copyright?
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JS: Well, maybe and maybe not, depending on the content of your
site, but this classification is largely irrelevant as you will see from
the following.
For copyright purposes, multimedia works are works which combine
authorships in two or more media. This distinction is drawn in order to
determine what type of form to use to register the work and what type of
"deposit material" must accompany the registration. If a "multimedia" work
contains mostly audiovisial elements, a form PA is used. If a work does not
contain audiovisual elements but has sounds in which a sound recording
authorship is claimed, a form SR is used; if the work contains only text, a
form TX is used.
Now, computer programs are usually registered as non-dramatic literary
works using a form TX. The copyright office has concluded that a single
registration on a form TX will cover both underlying code, and the screen
display of the code and a copy of the source code (or html, etc.) can serve
as the deposit material, and screen shots are optional. However, if
pictoral or graphic authorship predominate, a form PA (for performing arts)
is used and you need to include screen shots or drawings for deposit
material. One would assume that a form PA would be used for Web sites.
However, often times graphic elements are incorporated from other sources,
and thus a copyright in them cannot be claimed by the Web site's author, and
so a TX would be used. This all may be a bit confusing. For further
information you can reger to Circular 61 — copyright registration for
computer programs — and/or Circular 55 — copyright registration in
multimedia works — from the copyright office's Web site.
As you see, designating something a "multimedia" work or not is largely a
matter of semantics, and not really relevant for purposes of copyright
protection.
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Tripod: Are there different consequences if the original creator's site
is or isn't for profit?
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JS: No.
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Tripod: I noticed John Styn posted a question to your bulletin
board about a cease and desist letter he got from Fruit of the Loom about a parodic work
he posted. Shouldn't this be covered by Fair Use?
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JS: I would argue yes. It's a parody. I think they were claiming
trademark infringement, though. I would certainly argue that it's a parody in that
context too. Without rendering a legal opinion, and keep in mind I haven't
seen the cease and desist letter, I would say that Fruit of the Loom's
position is certainly contrary to existing case law in the area.
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Tripod: Are there a couple of particularly relevant cases out there now
that have set any precidents in determining what's considered "fair
use"?
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JS: Let's see. An interesting new case that
does a fairly good job of explaining the Fair Use doctrine (which is of a
lot of interest to Web designers) is Leibovitz v. Paramount. Annie
Leibovitz sued Paramount for infringement over use of spoof of her pregnant
Demi Moore Vanity Fair cover in conjunction with promotion of Naked Gun
33-1/3. The Court found the use to be a fair one and goes through the
elements of the Fair Use doctrine. You can look at the decision online.
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Tripod: What are the guidelines to follow if you want to parody without
incurring such cease and desist orders — or worse?
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JS: This is really too broad of a question for me to answer in a
vacuum... But I knew there was a reason I referred you to that Annie
Leibovitz case!
Generally speaking, though, I would say avoid copying original artwork.
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Tripod: Are there different consequences for parodying trademarks (as
"brand identity") as opposed to copywritten materials?
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JS: Oh Ms. Ray, you are such the legal smarty pants... good
question. The answer is yes, they are two distinct bodies of law (two separate federal statutes) which means in legal terms two separate causes of action if you are being
sued. There is also a different standard for infringement of each. For
trademark infringement the standard is "likelihood of confusion regarding
source of sponsorship," and the standard for copyright infringement, which
I have stated above, is unauthorized copying (or distribution, performance,
etc.) of protectible expression.
To fully appreciate this distinction I should probably point out the
difference between trademark and copyright. Trademark identifies the source
of goods or services in commerce, whereas copyright protects works of
authorship. Thus, in a very general sense, a trademark violation would
indicate that you are confusing the public about the true source of goods
(or falsely designating their origin) whereas a copyright violation
indicates a misappropriation of creative authorship... They are really two
very distinct things. The consequences, realistically, of violating
one and not the other might just come down to monetary liability. though.
Plus something can be both a copyright and a trademark violation, just like
the Fruit of the Loom example discussed above. Someone could claim that a
parody copied, without authorization, an ad (copyright violation) and also
copied a registered trademark, thus making the public falsely believe that
a company endorsed the parody, or that you created the original product
(trademark violation).
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Tripod: You recommend registering for copyright protection with the US
Copyright Office. Can people register their whole domains, or does each
subsequent update need to be re-registered?
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JS: Hmm. Well, in the US a work is protected by copyright law from
the moment of fixation in a tangible medium. Copyright registration affords
additional protection in terms of evidentiary presumptions, availability of
additional damages and attorneys fees in the event of litigation, etc. It
is also a prerequesite to filing suit for copyright infringement. Yes, you
can register your whole domain as one registration and then subsequently
re-register changes as a derivative work of the original work or as
supplemental or new works, but one must be realistic about this. It will
cost you $20 a shot, and some people update their sites weekly or even
daily. I would hate to discourage people from registering their works, but
one must consider how feasible it is to continually do this and whether you
would actually benefit from doing so (are you going to file suit if someone
where to infringe your site?). Put it this way. I change my site all the
time and I've never registered it. Not that I'm saying that's the way to go
necessarily...
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Tripod: It's my understanding that the overturning of the CDA prohibits
government censorship of "obscene, indecent, or patently offensive"
materials distributed online. Is it an option for those of us who run sites
with "obscene" domain names or people with obscene materials on their sites
to copyright these materials?
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JS: Obsenity laws have no bearing on copyrightability. I think you
may be confused with trademark law, which forbids registration of obscene
or scandalous matter, whatever THAT is.
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J Betty Ray is a parody of Fucker Dot Com, a parody of a parody of parody.
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