The Advantages of Click-Thru Copyright Notices/Agreements

Copyright law provides for enhanced statutory damages (up to $150,000) when an infringement is willful. See 17 U.S.C. Section 504(c). On the other hand, if the infringer “was not aware and had no reason to believe that his or her acts constituted an infringement of copyright,” damages for infringement may be reduced to as little as $200.

One way to prove in court that the infringer had reason to believe that his or her acts constituted an infringement of copyright is to use a “click-thru/through” agreement/copyright notice. When a viewer of your website checks the box acknowledging that the viewer agrees to the terms presented, it can have the effect of a signed contract according to common-law contract law and the Uniform Electronic Transactions Act (which is accepted by most states). The UETA states in part:

Unless the parties agree otherwise, an offer or the acceptance of an offer or any other matter that is material to the formation or operation of a contract, may be expressed . . . by an activity in electronic form, including touching or clicking an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.

As long as the (1) terms of the notice agreement are clear and concise and the viewer: (2) has time to read the terms; (3) cannot access any of your website/photos without consenting to the agreement; and (4) and plainly agrees to accept the terms, then the click-through agreement likely will be deemed valid and enforceable. It then can help you prove willful infringement or breach of any contract terms you may include.

Some photographers are concerned that click-thru agreements are distracting and/or will hinder buyers from viewing their websites. While willful infringement can be shown in other ways (such as placement of watermarks on each photo as discussed in my July 3, 2007 blog), click-thru agreements may be one of the easiest.

Photographer Andrew Zuckerman has found a tasteful and effective way to effect a click-thru agreement. However you choose to protect your images, choose to protect them in the best ways possible.

Take my advice; get professional help.

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