I’ve long advised my clients that one of the smartest things they can do to protect their work, after registering it with the U.S. Copyright Office, is to embed Copyright Management Information–especially proper copyright notice–into the metadata of any digital files of the work.
Metadata is an incredibly powerful tool for copyright holders in this digital age for loads of reasons, including:
- From a purely practical standpoint, putting copyright notice and your contact information makes it very easy for someone to find you to obtain (and hopefully pay for) a license when they want to use your work.
- Embedding proper copyright notice can give you important legal rights and preclude an infringer from certain defenses. Proper notice is specifically defined in 17 U.S.C. 401 to consist of three elements: “(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; (2) the year of first publication of the work . . . (additional information omitted–click on the statute above for the full text); and (3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.” By including proper notice, you can earn the ability to claim additional damages from an opposing party for willful infringement, which increases the statutory maximums from $30,000 to $150,000. You also eliminate the opposing party’s ability to invoke the “innocent infringer” defense (actually not a true defense but a means to reduce damages).
- If you have embedded metadata containing Copyright Management Information (as defined in 17 U.S.C. 1202(c)) in your digital files and an infringer alters or removes that metadata, you could be entitled to a separate claim under the DMCA with a statutory damages range of $2,500 to $25,000 for the offense. This is on top of (or in lieu of) any straight infringement claim you may have.
- If you have embedded metadata in your digital files and an infringer doesn’t remove the metadata before posting your work online or in some other digital format, then it becomes very easy for you to establish that direct copying of your work occurred, thereby giving you a very strong legal case. Taken with the above point, this creates a “dammed if you do, dammed if you don’t” situation for infringers.
So as you can see, embedding metadata in your work is can be an incredibly powerful tool for protecting your creations. Nearly all common software products support metadata of some type. For image files, the typical format is called EXIF data, although a previous standard called IPTC can work as well. For text, metadata is often accessed in the “properties” or “get info” menu items for programs like Microsoft Word or Adobe Acrobat–you should consult your “help” files to determine exactly how your software handles metadata creation and editing.
Finally, if you sell your items through your website, you should make sure that the website has sufficient metadata to make sure that your product shows up on popular search engines like Google, Yahoo, or Bing. Again, the practical benefits to doing so should be obvious, but a recent 9th Circuit decision highlights a potential legal pitfall if you don’t.
First some background. In a copyright infringement lawsuit, if the copyright holder can’t show evidence of direct copying, then she must show two elements to establish infringement: (1) that the alleged infringer had access to the protected work, and (2) that the infringing work is substantially similar to the protected work. If the copyright holder can’t establish access, then she has no case, even if the works have a lot in common.
In Art Attacks Inc., v. MGA Entertainment, — F.3d —-, 2009 WL 2950659 (9th Cir, 2009), the 9th Circuit Court of Appeals considered whether MGA’s “Bratz” dolls infringed upon the “Spoiled Brats” characters created by Art Attacks and distributed on their t-shirts. In defending the claims against it, MGA’s attorneys contended that despite the similarities between the characters MGA could not be held liable for infringement because it did not have access to Art Attacks’ protected works.
Art Attacks Spoiled Brat T-Shirt
Art Attacks had marketed its works in a fairly limited way, appearing at swap meets and fairs around southern California for over a decade. But they created a website to show their works as early as 1996, and they tried to argue that by virtue of the internet, they had achieved the sort of “wide dissemination” required to allow the court to grant a legal presumption of access. This was necessary because Art Attack couldn’t otherwise establish direct access or even a chain of events leading to access.
MGA’s attorneys countered, understandably, that just because something is on the internet doesn’t mean that lots of people have seen it. Specifically, they argued that the Art Attacks web page, almost by definition, could not be widely distributed online because it lacked the necessary metadata tags to allow it to be easily found and indexed by major search engines.
MGA's Bratz Characters
The 9th Circuit court agreed, stating that “the webpage did not include ‘meta tags’ that would indentify the Art Attacks site to internet search engines. As a result, a potential viewer who typed ‘spoiled brats’ into a search field would likely not encounter the Art Attacks page. A website with such limitations could not have widely disseminated the copyrighted Spoiled Brats material.”
The lesson? Use metadata whenever possible, as much as possible, and as often as possible. Not only will having metadata on your works help you in any infringement claims you may have, using appropriate metadata on any website that promotes your works will limit the infringer’s ability to invoke certain legal arguments that might hurt or defeat your case.
