digital copyright – Media Tech Law

E-SIGN and Copyright: Uploading Photos to Website Equals Consent (and Copyright Assignment)

Posted February 13, 2013 by Britnie Morris 0

Does use of a website constitute implicit consent to the site’s Terms of Use (TOU)? And if the TOU provides for copyright assignment, does that use thus constitute a valid assignment of copyright under the federal Copyright Act? Those were the questions last August before the US District Court for the District of Maryland, which granted the real estate multiple-listing service known as “Metropolitan Regional Information Systems” (MRIS) a preliminary injunction against defendant American Home Reality Network (AHRN). The court’s opinion can be found here. The case was discussed in some detail by RIS Media, a real estate technology blog, particularly the role of electronic signatures under the federal E-SIGN Act for valid assignments under the Copyright Act.

The court enjoined AHRN from copying and uploading MRIS’ photographs to AHRN’s website Neighborcity.com. Pamela Chestek, in her blog “Property, intangible”, points out that although the preliminary injunction was granted solely on the claim of infringement of photos in the MRIS database, MRIS had alleged infringement on its entire database.

Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright

Posted October 4, 2012 by Andrew Mirsky 0

When using Pinterest (and Flickr and YouTube and Facebook and on and on), what copyright, fair use, trademark and other issues weigh on building communities and fan pages and social media generally? A hypothetical “Company” has plans for its Pinterest “community”, and in particular, wonders about these situations:

Using Images of Identifiable People
Fair Use and Images
Trademarks: When is a “Fair Use” Argument Strongest?
Why Attribution and Linking to Original Sources is Important

3 introductory questions:

Question #1: Someone used to be a paid Company sponsor or spokesperson. They are no longer. Can the Company continue to post a photo of the old sponsor to Pinterest? Short Answer: If the contract with the sponsor expressly permits it, yes. Ordinarily, the contract would specify engagement for limited time, and that would prohibit rights to use images beyond the contract period. But it really depends on what the contract says.

Question #2: Can the Company post a photo of a fan of the Company? Short Answer: Express consent is required, either through a release or the fan’s agreement (whenever the photo is submitted) to terms of service. Exceptions are discussed below.

Question #3: Can the Company post a photo of a Coca-Cola bottle on its Pinterest page? Short Answer: If the use of the image does not suggest (implicitly or explicitly) endorsement or association, then yes.

MegaUpload – Where is my Data?

Posted June 26, 2012 by Andrew Mirsky 0

A not-insignificant consequence of the federal government’s move in January to shut down the popular file-sharing site MegaUpload is that customers are blocked from being able to access their files.

First, some background. In January, the government charged that MegaUpload and its founder Kim Dotcom operated an organization dedicated to copyright infringement, or in other words operated for the purpose of a criminal enterprise. The site provided a number of online services related to file storage and viewing, which (among other things) allowed users to download copyrighted material. The government also claimed in its indictment that the site was also used for other criminal purposes including money laundering.

Not surprisingly, the file-sharing activities caught the unpleased eye of prominent content ownership groups

Fair Use or Just Plain Stealing? “Transformative” Art in a Digital World

Posted February 21, 2012 by Andrew Mirsky 0

A recent New York Times article discussed the case of an artist was sued for copyright infringement after he created paintings and collages based on photographs without crediting or obtaining permission from the photographer.

The artist, Richard Prince, based his works on photographs from a book about Rastafarians “to create the collages and a series of paintings based on [those photographs],” reported Randy Kennedy in the Times.

Then ensued a discussion of the degree to which material must be transformed to fall under copyright law’s “fair use” protection, which would allow use of copyrighted material if, as the article explains, “the new thing ‘adds value to the original’ so that society as a whole is culturally enriched by it.” (The reference is to a 1990 Harvard Law Review article by Federal Judge Pierre Leval. I previously discussed fair use’s 4-prong analysis in the context of photographs and artwork, here and in mashups here.)

MediaTech Law

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