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Copying digital images, videos, and music clips from the WWW is usually possible with a few mouse clicks and keyboard taps. You can even use images on distant WWW pages on your own WWW pages by referencing their WWW URLs within your own WWW pages. Moreover, an inexpensive scanner quickly produces a digital image from a traditional photograph or magazine print. However, ease of referencing and copying in this—or any other manner—does not impart a right to do so. With digital imaging, owning an image does not bestow a copyright.
The laws regarding copyrights, moral rights thereof, and “fair use” are very complicated and vary globally. You might imagine the surprise of the Silicon Valley company contacted by the descendants of Leonardo da Vinci for using an image of the Mona Lisa in a commercial advertisement. Moreover, digital watermark technology now exists to help identify rightful digital image owners. So, it is important to understand where some of the many problems lie.
To this end, this chapter moves directly into actual incidents which illuminate potential problems regarding image ownership. However, please note this chapter does not constitute legal advice, only comments and observations from an interested layperson. If you need legal advice, consult your attorney.
Jane Schweitzer, a retired surgery nurse, was visiting the Vietnam Veterans Memorial (a.k.a. The Wall) in Washington, D.C., when she noticed the nearby Vietnam Women’s Memorial sculpture. Walking over to the women’s memorial, which is located on National Park Service property, she snapped a few photographs of the sculpture.
After returning home, she was genuinely surprised at how well the pictures turned out. So much so, she and her publisher decided to use one on the cover of her forthcoming and highly acclaimed book titled Tears and Rage: The Nursing Crisis in America (ISBN 1-883422-05-1).
After promotional flyers that included a book cover image were circulated at the San Francisco Book Festival, Al Canton, the publisher, received a facsimile on letterhead stationery from the Vietnam Women’s Memorial Project, Inc. on November 8, 1995. It read:
Gentlemen:
The Vietnam Women’s Memorial Project owns the copyright of the Vietnam Women’s Memorial. The image of the Vietnam Women’s Memorial may not be used without the written permission of the Vietnam Women’s Memorial Project. You have infringed upon copyright law by publishing Tears and Rage: The Nursing Crisis in America with the image of the Vietnam Women’s Memorial as its cover.
You must cease the production of this publication that bears the image of Vietnam Women’s Memorial on its cover and remove whatever inventory retailers and/or wholesalers have in stock with said image. Again, the Vietnam Women’s Memorial image can only be used with the explicit approval of the Project.
We request that you communicate in writing within 10 business days your understanding of our legal copyright interest. If you do not respond within that time, we will refer this matter to our general counsel.
Sincerely,
Diana Hellinger
Apparently, the general counsel referral could not wait. Two days later, Al Canton received a facsimile on letterhead stationery from Mahon & Patusky Law Offices that read:
Dear Mr. Canton:
We are copyright attorneys for Vietnam Women’s Memorial Project, Inc. and are writing in connection with your unauthorized reproduction of the Vietnam Women’s Memorial sculpture on the cover of Tears and Rage: The Nursing Crisis in America. The Memorial copyright is owned by the Vietnam Women’s Memorial Project and your reproduction constitutes a willful copyright infringement. Accordingly, you must immediately cease and desist printing, distributing, promoting and selling the book with the infringing cover in any capacity or we will enjoin you from doing so.
We trust you realize the implications of what is a willful copyright infringement. Not only are you exposed to damages of up to $100,000 for the copyright infringement under [paragraph] 504 of the Copyright Act as amended, but all those individuals who participated in and benefited from the copyright infringement will be personally jointly and severally liable as co-defendants for that conduct in any lawsuit we are required to file. In addition, the wonderful thing about copyright law is that you will be paying all our fees while we pursue you. We’re expensive.
Your company should know better than to use an image without checking the copyright ownership of the object depicted. To avoid a lawsuit, we require a written confirmation by you that you will immediately cease and desist printing, distributing, promoting and selling the book bearing the infringing image and that you will recall all unsold books previously distributed by you. In addition, we require a complete accounting of all infringing copies printed and sold by you and all your distributors, including remaining inventory. In order to resolve our claims. If you do not provide us with this information before Tuesday, November 14, 1995, we will have no choice than to file suit against you and those other individuals who knowingly participated in the infringement, seeking copyright damages, costs and our fees. We will also seek an injunction against you and your vendors to prevent any further harm to our client.
We trust you will ensure that this matter is resolved now, while it still can be. In this manner, we may all pursue more interesting endeavors than will be the case otherwise. The alternative is for us to file a suit in which we will most certainly prevail. And, in addition to the judgment, you will be paying for our fees at the prevailing rate.
Sincerely
Paul A. Mahon
From Al Canton’s perspective, this maximum surprise-element situation clearly threatened to devastate, if not bankrupt, his publishing company and himself. Resolving the matter was very difficult and Al Canton eventually mounted a public Internet battle for his defense, finally paying $500 for the rights to use the image and issuing a closure statement drafted by Vietnam Women’s Memorial Project, Inc. This sum was what Al Canton had offered to pay immediately after receiving the first facsimile.
In retrospect, it never occurred to Jane Schweitzer or Al Canton that a sculpture on public National Park Service property that did not display an obvious copyright notice would be copyrighted. If you are similarly surprised, you are in good company. Regardless, Paul A. Mahon’s letter provides one example of how you may be treated by opposing lawyers.
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