Consider this scenario. You are an author who has written an essay. You put it on your Web Page with the hope that everyone will see it, read it, copy it and use it. You also decide that the picture you saw on another Web Page a few weeks earlier while surfing around would be a great way to complement your own work. So, you create a Link directly to the picture. This basically means that when a viewer accesses your Web Page, the artists picture is displayed next to your essay on the same screen.
Although this may seem to be a rather simple matter, the legal implications are actually complex. The artist has a copyright on the picture which gives him or her "exclusive rights to use and to authorize the use of [the] work . . . including reproduction of the copyrighted work in copies." (17 U.S.C. Section 106) However, Section 107 of the Copyright Act subjects this exclusive right to the doctrine of "fair use", where an individual may use a copyrighted work in certain instances. These include uses such as "criticism, comment, news reporting, teaching, or research."
Moreover, Section 107 lists four factors the Courts should consider when determining whether a use can be exempt from infringement: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational work; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.
The legal dilemma this case presents is whether the act of linking your Web Page to a foreign Web Page violates the copyright of the foreign Web Page. The legal problems arise because although the artist has put the picture on a Web Page for anyone to view, he or she has not given specific permission for any of those viewers to copy, transmit or use the picture, but rather, merely view it. In essence, the author who creates the link, and perhaps even anyone who reads the author's essay and is automatically linked to the artists page, may be considered "contributory infringer's" of the copyright.
A contributory infringer is "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." (Sega v. Maphia BBS, 857 F. Supp. 679, 686). Knowledge can be either actual or constructive (should have reasonably known).
Another important point is the difference between commercial and noncommercial uses and the effect on the future of marketability of the item.
"The purpose of copyright is to create incentives for creative effort . . . [and] a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited. Although every commercial use of copyrighted material is presumptively an [infringement on the copyright], noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work."
(Sony v. Universal Studios, 104 S.Ct. 774, 793).
Indeed, if the purpose of putting the picture on a Web Page is to increase the exposure of the artist's work, then the Link to it from the author merely facilitates this purpose. Furthermore, in this case, neither the artist nor the author intends either work to be for commercial purposes.
So, how can you protect your on-line works and yourself? Actually, it's relatively simple. When creating your own works, you should always include a copyright message detailing what uses of your work are acceptable to you, if any. When using other people's works, it's always advisable to contact that person and get specific permission. Finally, you should always give proper credit to the original creator. Although no lawsuits have been filed on this issue yet, it is likely that this will be a major legal issue in the not to distant future.
Michael Green (mgreen4@vaxc.hofstra.edu) is a law student at Hofstra.