Daylight Robbery! The Legal and Illegal Use of Web Graphics

Details of Copyright Law

...key criteria for the determination of copyright and how this applies to Web materials

The actual legalities of copyright apply to Web materials through three main criteria:

• fixation to a tangible media,
• originality, and
• minimal creativity.

Fixation means preserving the graphic to any "permanent" storage media, including diskette, CD-ROM, hard drive, paper, recording device, video camera, etc. This includes Web server storage. Originality is defined simply as the original content of the creation. Minimal creativity assesses the amount of creativity in a work. Telephone directory listings and ingredient lists in recipes, for example, are traditionally difficult to copyright, since they contain little if any original content. It’s hard to say where the line is drawn for graphics, but I’d assume that anything more complex than a simple polygon would fall under the copyright laws – either you created it and own it, or you copied someone else’s work and are in violation.

Under certain circumstances, original material can be used under the "fair use" statutes. Fair use allows certain creations to be used in parodies/satires, news reports, reviews, and for educational and teaching purposes; this is often the loophole used by unscrupulous and/or ignorant cyberbanditos. While the idea seems relatively straightforward, in practice "fair use" can be quite slippery. Most institutions that deal with the "fair use" statutes in their daily course of affairs have written guidelines to explain what does and does not constitute fair use under the law. If you work for one of these institutions, you should make yourself aware of the guidelines; if you work for yourself, or you’re an amateur, you should err on the side of caution. Note that the "fair use" laws in the U.S. are different than those in other countries.

Who Owns What Copyright?

...an explanation of the basics of copyright ownership

You own anything you create, with the following exceptions:

1. If you create a graphic, code block, or the like as part of your job, it belongs to your employer.

2. If you contract to provide someone else with a graphic or other creation, that creation belongs to them under the terms of the contract. The same applies for freelance work done under specific contract to an employer or contractor, i.e. the Web designer who creates a graphic for your site under a specific contract transfers ownership to you. Such contracts can be simple verbal agreements (though such agreements can lead to arguments and even litigation) or written agreements that specify exactly what is created and who gets ownership.

If you own a creation, you can transfer ownership to someone else, with or without monetary compensation. It’s just as simple to allow someone to use your work without transferring ownership. "Sure, go ahead, use it" is good enough for the law, as long as it’s the owner who makes the statement. Again, usage rights aren’t transferable: if a graphics designer gives me a neato graphic for use on my site, I can’t legally let you use it without the owner’s consent. Original work created by employees for their employer is copyrighted for 95 years from original publication or 120 years from the date of creation (whichever occurs first).

A good example of an issue with copyrighted graphics can be found at the Canadian Flag Clip Art Gallery, a Canadian graphics site that discusses its experience with Canadian copyright law. The site owners found that their use of a Canadian flag graphic is legal in itself, but not if the graphic contains a boldfaced font to the side of the flag designating an official governmental agency or department. In this case, the Canadian government laid down particular restrictions on the use of the Canadian flag for public use. Most other commercial and corporate entities have their own restrictions on when their logos or originally created works can and cannot be used.

Many works are in the "public domain", which means that they’re freely available for use by anyone. Public domain is another slippery concept. The law defines anything not copyrighted as in the public domain, but don’t get too happy with this concept. Some people think that anything that appears on the Internet is automatically in the public domain, which is emphatically not the case. The R.I.G.H.T.S. Website reminds us that the concept of public domain

Good words.

The concept of public domain rarely applies to anything on the Internet. Virtually all Net creations were made after 1977; and as the law states that the owner retains the rights to his work for the span of his life plus 70 years, nothing on the Net has had its copyright expire yet, and won’t for a long while. The main exceptions are works of literature that were already in the public domain (Shakespeare, the Bible, Lao Tzu, etc.) and have been converted into Web documents.

Ideas themselves cannot be copyrighted. They are classified as "intangible" and therefore cannot be protected. For example, say I decide to start producing a bunch of graphic illustrations of cats. I can’t register the idea of "cat graphics" as mine and mine alone, because that’s an intangible idea. Anyone can create graphics of cats. I can, however, copyright any of the graphics I create – whether they’re scanned photos of my big orange kitty Buster, or abstract Picasso-esque doodles – as mine. If I use a photo of the neighbor’s tabby, I need the neighbor’s permission to use the photo. If I find a graphic of a cat on the Web, I can’t modify it to "make it my own" without the permission of the graphic’s original owner.