Online portfolios are a key part of any creative professional’s marketing arsenal. Whether you’re a graphic designer, photographer, writer or some type of artist, prospective clients want to see your goods – they want to check out what your skills you have to offer them. However, displaying your hard work on the Internet puts it out there for thieves to exploit – those people might simply grab it. Some of them have malicious intentions, as they might pass your work samples off as their own for financial gain, while others simply don’t know any better and may post your design or photo with no credit to illustrate a blog or adorn a website.
I spoke with intellectual property attorney Jed Phillips about what artists can do to protect their creations once they’re posted on the Internet.
Short answer: Yes, you do not lose your copyright by posting your work online (whether music, pictures, video, text, etc.)
Longer answer: Copyright gives you the right to control your work (assuming the work is covered by copyright, which is a wholly separate issue). The three big rights for creative people online are:
- The right to prevent people from copying their work.
- The right to control the distribution of their work.
- The right to control the creation of derivative works based upon their work.
There are other rights, but these are the big three that are going to impact most creative professionals. As an example, if someone pulls an image off of Flickr, uses it to create an ad and then publishes that ad online, they are creating a copy of the work (the copy they have stored on their computer, printed out, e-mailed, etc.), a derivative work (creating the ad incorporating the copyrighted work) and distributing the work (posting it online). If unlicensed, these are all potential infringing actions.
What about licensing?
The copyright holder has the right to control the use of their work. The normal expression of that right is a license, either explicit or implied. An explicit license sets out the conditions under which a right holder will permit (i.e., refrain from enforcing their rights through a suit) copying, distribution or the creation of derivative works. The licenses can be vague or incredibly specific – it depends on what the right holder wants. There are some “off the rack” licenses that creative professionals can use. Probably the most familiar would be the various Creative Commons licenses. Flickr uses these and has a quick and easy system for a rights holder to designate which license they would like to apply to their work. Some of the licenses control derivative works and copying; others permit any use (including commercial) so long as the rights holder receives credit (“attribution”). Anyone posting on Flickr should review the license descriptions before posting and make sure they select the license they want.
What can creative professionals do to protect their work?
There are practical and legal steps they can take. Realistically, the legal steps are less effective than the practical steps. As an initial matter, if they are putting their work up online, they need to make sure they read the site terms and conditions before they post anything. Facebook, for example, has some interesting and somewhat controversial terms about what they can do with anything you post. If they don’t like the terms, don’t post and let the site know why. If they have their own portfolio site, then they need to have a copyright blurb somewhere (the more prominent the better, but I know that isn’t likely) that sets out what folks can do with the files posted on the site.
For practical steps, common sense is a good guide. Post low-resolution images, use watermarking, make sure the site logs IP addresses (If you plan on enforcing a copyright, proving that a particular computer accessed it, and when, can be useful.), etc.
What about enforcement?
Always start friendly, if possible. Many people view anything posted online as fair game. If someone has their work stolen, sometimes it only takes a gentle reminder that the work isn’t up for grabs to stop the behavior. If that fails, then the next step is a DMCA notice and take-down letter. The rights holder can send a letter (the format is spelled out in the code, and there are countless examples online) to the ISP, and the ISP will generally remove the infringing work.
If the offender is particularly persistent, then it’s time to chat with a lawyer. Sometimes a letter from a lawyer will work where more informal dispute-resolution efforts failed.
If the letter from the lawyer fails, it’s time to have a chat about obtaining an injunction and damages. At this point you are discussing federal litigation. This is generally where you have to decide just how important or egregious the infringement is and what it is worth.