Photo Attorney

Feb 1, 2009

Q&A - Where Do I Put My Copyright Notice?

Q. Where do I place my copyright notice on a website? Should it be on a splash page at the front, on the photo, or on the bottom of each page?

A. According to Section 401 of the Copyright Act:
A notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. . . . The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright.

The Register of Copyrights may prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications are not be considered exhaustive. For example, when your photograph is included in a collective work (such as a book or magazine), your photograph may bear its own notice of copyright. However, a single notice applicable to the collective work as a whole is sufficient.

Therefore, there are many reasons to use a copyright notice. First, if a copyright notice appears on the published copy to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant's interposition of a defense based on innocent infringement in mitigation of actual or statutory damages. As stated in Lowry's Reports, Inc. v. Legg Mason Inc., et al., 271 F.Supp.2d 737 (D. Md., July 10, 2003):

"[W]illfulness" means that the infringer either had actual knowledge that it was infringing the owner's copyrights or acted in reckless disregard of those rights. Brown v. McCormick, 87 F.Supp.2d 467, 482 (D.Md.2000). Evidence that the infringed works bore prominent copyright notices supports . . . a finding of willfulness. Castle Rock Entm't v. Carol Publ'g Group, Inc., 955 F.Supp. 260, 267 (S.D.N.Y.1997).

Second, removal of the copyright management information violates Section 1202 of the Copyright Act (also known as part of the Digital Millineum Copyright Act). Your copyright management information "means any of the following information conveyed in connection with copies of a work or displays of a work,including in digital form (such as in the metadata of your photo file):

(1) The title and other information identifying the work, including the information set forth on a notice of copyright.
(2) The name of, and other identifying information about, the author of a work or
(3) The name of, and other identifying information about, the copyright
owner of the work, including the information set forth in a notice of copyright.

Read more about this DMCA violation in my earlier blog entry.

In sum, the more notice you give to an infringer, the stronger your argument that the infringer may not use the "innocent infringement" defense and the more likely you will be able to recover for willful infringement and damages under the DMCA. If appropriate, put your copyright notice on or adjacent to each photo (compare the disadvantages of heavily watermarked images in my July 23, 2008 blog entry), in the metadata of the photo, on each webpage, and/or on your splash page at the front (if you are sure that no one can get to your photos while bypassing the splash page).