Final Writing Assignment for Law & the Internet at the
University of Miami School of Law.

By: Theodore J. Sabo, Jr.


The "digital domain", and more importantly the Internet, is a new frontier that challenges present copyright legislation. The genius of U.S. copyright law is that, in conformance with its constitutional foundation, it balances the intellectual property interests of authors, publishers and copyright owners with society's need for the free exchange of ideas. (1) It follows that the benefits of new technologies should flow to both the public and copyright proprietors.

This paper shall attempt to distinguish the Internet from traditional venues of copyrighted photographic material and simultaneously suggest some protections and remedies that need be afforded to photographers working in this medium.

Humanity seems bent on creating a world economy based on goods that take no material form. In so doing, we effectively eliminate any predictable connection between creators and compensation for the use or pleasure others may find in such works. (2) Since it is now possible to convey ideas from one to another without making them physical, we must claim ownership to the ideas themselves and not merely their expression. (3)

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expandable over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."
- Thomas Jefferson

While this idea is eloquent, and the merits discussing the benefits others derive from another's idea seem logical, the common day market is structured such that only those who "control" the use and distribution of their "idea" can profit. If you eliminate the profit motive, Thomas Jefferson was "on the money." If you are more realistic and allow for the human psyche, you cannot remove this factor from the equation and are forced to deal with it.

The United States, and other countries alike, have chosen to deal with the issue of "control" (and hence profit) by creating copyright legislation that gives a creator exclusive control over the use and distribution of his "ideas."

Copyright protects the expression of ideas. An original expression is eligible for protection as soon as it is fixed in a tangible form. Hence, almost any original expression that is fixed in a tangible form is protected as soon as it is expressed. For example, a photo that is manipulated in Photoshop has not only the protection surrounding the original image, but is protected as a new image as soon as the file is saved to disk. Html becomes protected as soon as it too is saved to disk. Hence, almost everything on the Internet is eligible for copyright protection.


The Copyright Act of 1976 is complicated. A copyright is the exclusive right granted to "authors" under the U.S. Copyright Act to copy, adapt, distribute, publicly perform, and publicly display their works of authorship, such as literary works, databases, musical works, sound recordings, photographs, and other still images, and motion pictures and other audiovisual works.(4) Protection of these rights means an assurance that no more than some amount of copying of their works will take place once those works are released to others. (5) Protection is not absolute. Some uncontrolled copying is possible and even likely. It is without some limitations on copying that copyright owners will not be willing to release commercial materials to the public in any volume.

There are exceptions to copyright protection that fall into the area of fair use. According to Sec. 107 of the U.S. Copyright Act, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --
(a) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(b) the nature of the copyrighted work;
(c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(d) the effect of the use upon the potential market for or value of the copyrighted work.

NOTE: The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Most people are familiar with the "public domain". Technically, the phrase refers to material that has become available to the "world", free and without need for authorization, as a result of the time expired between the present and the date of origination (the time period may vary according to the copyright law at the time of origination).

For many, the public domain is perceived to be a "pool" of old and forgotten stuff. While this is not always true, the chances of your finding something on the Internet that falls into this category are slim in light of the duration of copyrights versus the age of the Internet.


Photography is the expression of one's idea. A photograph is the product of an artist's vision. It is this end product that has value. Photographs are used for many commercial purposes including: cards, posters, books, calendars, magazines, T-shirts, screen-savers and more.

Frequently photographs are the result of a "work-for-hire" scenario where the photographer is hired to create things for a particular project. In this instance, it is often agreed that the employer will have the copyright privileges in her possession. However, so too are photographs, originally taken for another purpose, used to enhance the value of a project. In this case, the photographer will most often possess the copyright, and therefore have exclusive control over the use and distribution of his art.

Many photographers depend on the royalties that they accrue as a result of licensing the use of their copyrighted images to other entities. This right must be protected.


Copyright fundamentals that should be understood by all photographers utilizing the Internet include the following:

(a) Copyright Notice: It used to be that in order to be afforded any copyright protection, one needed to put the world on notice by attaching a copyright notice of the work. While this is no longer the case, it is still customary to attach a copyright notice on copyrighted works in order to be eligible for certain types of damages. In the copyright notice below, notice the four elements that include the copyright symbol, the term "Copyright", the year of copyright, the name of the copyright holder, and the phrase "All Rights Reserved".(6)

Copyright 1995 T.J. Sabo,
All Rights Reserved

(b) Copyright Term: "Copyright" is not technically required in the notice, however it may be used in lieu of the Copyright Symbol in the U.S.

(c) Copyright Symbol: The symbol is generally the standard identifier of a Copyright Notice and is required in many foreign countries to secure protection.

(d) Year of Publication: The year of publication or creation should be included in any Copyright Notice, for the year noted will be the first year constituting the protection period (50 years + the life of the artist).

(e) Copyright Owner: The name of the copyright owner must be in the notice. The legal owner of the copyright need not be the author or creator of the work. Works created by employees in the course of their employment, or those who sign "Work-For-Hire" agreements are considered to be creating on the behalf of another. Such copyright is vested in the employer.

(f) Reservation of Rights: In the U.S., a copyright notice need only include the symbol, owners name and year. However, in Bolivia and Honduras, you must look to the Buenos Aires Convention which requires that the reservation of rights phrase be included in any copyright notice so that protection can be attached.

(g) Duration of Copyright Protection: The duration of a copyright term is dependent on when any such expression was created. January 1, 1978 is a critical date that can have a substantial affect on the life-span of a copyright.

(1.)Pre 1978 (published) - the copyright expires 75 years from the date of publication (if the copyright was renewed).

(2.)Pre 1978 (Created but not published) - the copyright will expire on Dec. 31, 2002.

(3.)1978 to present (copyright owned by an individual) - the copyright will last for the life of the author, plus an additional 50 years.

(4.)1978 to present (copyright owned by employer of author) - the copyright will last 75 years from the date of publication, or 10 years form the date of creation, whichever
occurs first. (7)

(h) The Berne Convention: The Berne Convention is an international copyright treaty signed by 96 countries. The United States is one of the signatories. The regulations of The Berne Convention are more far-reaching than the US Copyright Law. It requires member states to recognize the moral rights of integrity and attribution. There must be protection within the country's own legal system. The author's work may not be exploited. It grants economic rights - the author has exclusive right to translate, reproduce, perform, or adapt protected works. The Berne Convention recently extended the terms of protection to the life of the author plus seventy-five years. To avoid confusion about the duration of any copyright, the US Copyright Law is expected to be amended to follow the international term of 75 years. (8)

The normal procedure that one must endure to use another's original and copyrighted piece is licensing. Licensing is the most prudent course of action and will give you the right to use that item from the copyright owner typically in exchange for compensation.

Per view or "per use" charging for licensing of copyrighted materials is now feasible and will most likely become the norm. Computer controlled access and monitoring will make this possible. Contractual agreements will dictate the charging terms and mechanism.

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The Internet is currently recognized as the largest threat to copyright protection. One reason for this threat is that the Internet consists of so much information, each with its own degree of copyright protection. Net "surfers" are simply confused about the rights and responsibilities they, and other parties involved, possess. Interestingly enough, most everything on the Net is protected by copyright law.

The Internet has been compared to the "wild west", where order was established according to an unwritten Code of the West, which had the fluidity of common law rather than the rigidity of statutes. Ethics were more important than rules. Understandings were preferred over laws, which were, in any event, largely unenforceable. (9)

There appears to be a doctrine of implied public access on the Internet. After all, the Internet was created on the basis of being able to attach hypertext links to any other location on the Internet. Hence, by placing yourself on the Internet (including your expressions of ideas), many people think that you have given implied permission to for them to link to your Internet page, and everyone else on the Internet is deemed to have given you implied permission to link to their web pages. (10)

The issue is: how do we structure and interpret the copyright law, a law developed in an age of print and now perhaps too tied to that medium to have ready application to today's information technology. (11)

As a result of not understanding the copyright laws, you will often find sites with disclaimers like the following:

"A number of the images that have shown up
in these lists are illegally copied.
Photographers often put a lot of effort
in to their work, and copying it without
permission deprives them of their livelihood.
I have already received a complaint
from one photographer. As the web becomes more popular,
there will be less toleration for criminal copyright
violation than there has been in the past. If you
have a favorite photographer, please encourage
them to set up their own page, or offer to do it for
them with permission."(12)

The reality is that this site has admitted that their actions are illegal, contrary to copyright law and that they have been put on notice by at least one photographer whose work was utilized without permission.

Regardless of the past toleration of copyright infringement, every infringer is liable for damages to the copyright owner if that owner can prove her rights to a respective image used without permission or without falling into one of the exceptions to copyright law.


A web page on the Internet is not much different than a magazine when looking to the expression of an idea. A web page can contain text, graphics, audio and video. Most people understand that the things you find in a magazine are protected by copyright. However, the same material, when found on the Internet seemingly appreciates less obvious protection to the casual browser. The reasons for this discrepancy are both psychological and technological. (13)

Copyright law was originally conceived as a mechanism for creating property rights in ideas - intangibles. Once such a right was created by Congress, it was to be exercised like all property rights, in any way the owner saw fit, with a wide scope for contractual variation in license terms, fees or sales price. (14)

The presumption of a congruence between public and private good arises from a reliance on property rights as the principal feature of commerce. The presumption is that voluntary exchange will benefit both buyer and seller, and voluntary exchange is facilitated by property rights. In a copying context, it would mean a presumption that both the author and the public would benefit from the existence of a property right in information.

Contrary to this, today there is a tendency to see copyright law as a means of defining specific rights and duties with regard to the use of intangibles. In other words, the traditional property view sees the copyright statute as simply providing a backdrop for individual bargains and negotiations over licenses, whereas the modern view sees the statute as specifying what are essentially the actual quite specific terms of large classes of "bargains" over the use of intellectual property. (15)

Under the modern interpretation of copyright, what seemingly sees copyright as a liability, contracts that limit what would otherwise be a fair use, a first sale, or other users' right of copyrighted material may perhaps not be allowed. These limits will likely be challenged on grounds of federal preemption. Such parties will argue that Congress's definition reflects a careful balance of interests and individuals are not free to undo the resulting scheme. Particularly, if Congress has said that a user is not liable for a certain "fair use" of copyrighted material, then it should not be within the seller's power to redefine that liability.


The traditional recipe for successful deterrence is now challenged by the Internet. Digital communications permit faster, better and cheaper copying of works of authorship. Technology now permits nearly instantaneous creation of virtually perfect copies of the original. (16) This diminishes the role of traditional copying limitations.

Protection against copying does not exclusively stem from copyright law and its restrictions. Owners of copyrights have traditionally relied on many things to protect their expressions. They have looked to the aggregate deterrence of four methods for limiting copying of their works: the state of the copying art, copyright law, special technical devices, and contract law. (17) The Internet has all but eliminated the first deterrent.

Some copyright protection in the past has stemmed from the "quality of experience" one has when viewing the once glossy photographs or magazine pages on a low resolution computer monitor coupled with slow browsing due to the downloading of images. More often then not, a person interested in a "work" was willing to pay for it in order to have greater satisfaction. However, this is no longer the case.

The state of the photocopy art has become such that every home has a machine that can make a near perfect copy of a magazine or photograph. Photographers and publishers of any such magazine, have a lot to worry about. Copyright owners are now compelled to resort to the copyright laws and special technical devices that can afford the necessary protection.

The Commerce Department has created a working group to investigate issues arising from the "National Information Infrastructure. This group formed a subgroup to address intellectual property issues and has since issued a report known as the "White Paper". This paper proposes several changes to the Copyright Act to accommodate those involved in digital transmission of their works.

Legislatively, the paper seeks an amendment to treat digital transmissions of works as distributions of copies to the public; a new provision making it unlawful to tamper with copyright management information; and a new provision to prohibit devices or services aimed at circumventing technological protection for copyrighted works. (18)

Practically speaking, "the eight interrelated parts of the white paper's agenda intend to:

(a) Give copyright owners control over every use of copyrighted works in digital form by interpreting existing law as being violated whenever users make even temporary reproductions of works in the random access memory of their computers;

(b) Give copyright owners control over transmission of works in digital form by amending the copyright statute so that digital transmissions will be regarded as distributions of copies to the public;

(c) Eliminate "fair use" rights whenever a use might be licensed (there is no piece of a copyrighted work small enough to justify not charging);

(d) Deprive the public of the "first sale" rights it has long enjoyed in the print world (the rights that permit you to redistribute your own copy of a work after the publisher's first sale of it to you);

(e) Attach copyright management information to digital copies of a work, ensuring that publishers can track every use made of digital copies and trace where each copy resides on the net;

(f) Protect every digital copy of every work technologically (e.g. by encryption) and make illegal any attempt to circumvent that protection;

(g) Force on-line service providers to become copyright police, charged with implementing pay-per-use rules; and

(h) Teach the new copyright rules of the road to children throughout their years at school" to raise "copyright conscious" people. (19)

Amendments like those found in the "White Paper" are important to those utilizing the digital domain. They too are controversial in that they are seen as a threat to the interests of readers, researchers and other copyright consumers. Proponents think the "white paper" merely confirms copyright protections in cyberspace equivalent to those appreciated in other forms of distribution. Opponents, however, argue that this interpretation of copyright law is not consistent with history and good public policy. If parties challenge proposed amendments, there may ultimately be a compromise in changes made to the Copyright Act, leaving the burden of protection on only the two remaining sources: technical restrictions and contractual restrictions.

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Technology of the net poses special problems. In a magazine, all users view the exact design (barring printing imperfections). On the Internet, different browsers will display the same "page" in a variety of ways. Additionally, people may modify their browser to alter the way any such "pages" are viewed. Fortunately, there is only one way to view a photograph on the Internet.

As long as the arrangement of text, graphics, audio, video, etc. is original and non-trivial, the design of a page will be protected by copyright. Additionally, each element of the page that is original is protected (e.g. a photograph).

In the satellite and software industries, technology has been used to control copying. Satellite signals are "scrambled" and require a "descrambler" at the receiving end to make use of them. Software companies encode their disks such that copy limitations are part of the program. Here, technology makes up for what would otherwise be the possibility of unlimited copying with little depreciation in the quality of the copied products.

Technical restrictions, in the form of encryption and limited access central sites, exist. These devices are important but beyond the scope of my understanding. Contracts, however, will too be increasingly important.

Contracts will assume greater importance in copyright transactions in order to compensate for the loss of the other restrictions. The advent of the Internet has had the effect of reducing the cost of communicating, and hence the transaction costs for contracting and monitoring contractual agreements. Unfortunately there is a glitch in this scheme called copyright preemption.

Copyright preemption is where the copyright law might preempt the terms of a contract. The Copyright Act expressly provides that in some situations, a state law or right will be preempted, leaving copyright law itself as the only applicable rule. (20) Section 301 of the Copyright Act preempts any attempt under state law to protect something when two conditions are met. First, the "something" must fall under the subject matter of copyright as an original work of authorship fixed in a tangible medium of expression. Second, the state law at issue must provide rights that are "equivalent" to those provided by copyright.

Preemption may also be available under a general analysis relying on the Constitution's Supremacy Clause. (21) This latter approach asks whether a sate law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" (22) ; if so, the state law may be preempted even though the preemption prerequisites of section 301 are not satisfied.

A simple transfer of an owner's rights is unlikely to be challenged on preemption grounds because such transfers are the revenue-generating means of authors' creative efforts. The preemption challenges are likely, however, when one attempts to contractually extend his copyright rights beyond those granted by the Copyright Act, or the reduction of the rights that users have traditionally enjoyed apart form contract. (23)

Other things being equal, one or more of the other protection methods may be able to assume an expanded role to compensate for the lack of copying limitations. This assumes that those currently in the business of putting their works on the Internet will, in a digital world, take certain steps to protect themselves. Such parties will need to "move toward trying to amend the Copyright Act to gain greater statutory protection, toward special technical devices to restrict copying, or toward stricter contract limits on copying." (24) This is seemingly the only way to prevent a loss in protection due to the decreasing state-of-the-art protection.


1. A photographer, regardless of the intended venue, should place a copyright notice on his or her photograph. When placing a photograph on the Internet, it is important to include "All Rights Reserved" in light of countries, not part of the Berne Convention, having access to your images. Additionally, the photographer should attach a phone number or e-mail address so that any interested party will be able to contact you about licensing information. (No one can pay you if they cannot find you.)

Ex. T.J. Sabo 1996,
All Rights Reserved. (305) 277-5162

2. If you, or your web page designer has the software and know-how to "lock" your photos, do so to prevent any "cut and paste" type copying. This will not eliminate copying, but it will reduce it.

3. If you are a generous person and do not care who is in possession of your image, I would suggest that you request a "usage fee" from those desiring to use your image. The understanding is one of self-regulation where anyone that takes your image will be honest and pay you (not likely). You can have any interested party send you a fee via check, secured credit card transaction or e-cash.(If you request payment via check, you may consider using a P.O. Box).

4. You may choose to distinguish private usage from commercial usage. Many copyright owners are allowing viewers to download their image if it is for a personal/private use. Whereas if the image will be used for a commercial use, a fee or a license inquiry is requested.

Such a clause would read:

"Viewers are allowed to browse and download images for personal use only.
Any other use requires permission from the copyright owner. Other uses
include, but are not limited to: making multiple copies, redistributing files
electronically or using images for personal or corporate gain, displaying images
publicly or using any such images in a "link". Commercial
use, absent express authorization from the copyright holder will constitute
copyright infringement. Any infringer will be responsible for
damages that may exceed the current price for licensing the same image."

Note: Generally a non-commercial use means a use in which nothing of value changes hands between you (the user) and someone else. Additionally, sending images to a friend for free is not authorized for it is no longer personal and constitutes multiple copies (which are prohibited).

5. A photographer (or any other party dealing with similar images) may also choose to display low resolution files or "watermarked images" to prevent and trace unauthorized copying beyond the scope of permitted uses. Low resolution images are of little use to anyone and "watermarks" make the copyright notice a part of the image itself (cannot be removed without retouch)

Absent not putting your images on the Internet, there are few (if any) ways to eliminate the opportunity for others to copy your images. However, giving viewers notice that they may be prosecuted for any unauthorized copying due to the notice given them and that the damages for infringement of your copyright may end up being greater than the fees they might have paid to be licensed has proven effective.

Section 504 of the Copyright Act (as amended) holds that "the copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken account in computing the actual damages. In establishing the profits, the copyright owner is required to present proof only of the gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work." However, before final judgment is rendered, to recover, "instead of actual damages and profits, and award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just." If a court finds an infringement to have been committed willfully, the award of statutory damages can then not be more than $100,000.

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To anticipate the survival of copyright protection is logical, for it has weathered many "storms". To expect survival without change in copyright legislation is impractical. In fact, the industries the copyright laws protect may indeed themselves need to adapt to this new digital medium.

Copyright law, in relation to photographs on the Internet, is certainly a matter for concern. The ease of reproducing digitized materials, and the ease of forwarding such materials over computer networks, may be pushing the notion of authorial control to its limits. (25)

The state of the copying art for digitized materials is quickly becoming a facilitator to unauthorized copying. Digital photographers, and others placing their works on the Internet, will be forced to turn to other forms of protection like scrambling devices; amendments to the Copyright Act that expand the definition of "infringement" in the digital world; and contractual restrictions.


1. Pamela Samuelson, The Copyright Grab, http://www.hotwired.com/wired/,April 1996, at 2.

2. Id. At 3.

3. Justice Sandra Day O'Connor, Feist Publications, Inc. V. Rural Telephone Service Co., 499 US 340, 349 (1991)

4. J. Dianne Brinson and Mark F. Radcliffe, Multimedia Law Handbook, a Practical guide for Developers and Publishers , Ladera Press at 132.

5. I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital World , Richmond Journal of Law and Technology, April 17, 1995, at 3.

6. P.J. Benedict Mahoney, The Copyright Website , "Copyright Fundamentals", at www.benedict.com.

7. Benedict at "Duration of Coyright"

8. The Software Publishers Association Legal Guide to Multimedia, by Thomas J. Smedinghoff, Addison-Wesley Publishing Company.

9. John P. Barlow, The Economy of Ideas: A Frame work for Rethinking Patents and Copyrights in the Digital Age , WIRED, Mar. 1994, at 86.

10. The Copyright Website, "Implied Public Access", by P.J. Benedict Mahoney, at www.benedict.com.

11. John P. Barlow, The Economy of Ideas: A Frame work for Rethinking Patents and Copyrights in the Digital Age , WIRED, Mar. 1994, at 86.

12. Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: A Preliminary Draft of the Working Group on Intellectual Property Rights (July 1994).

13. P.J. Benedict Mahoney, The Copyright Website , "Content", at www.benedict.com.

14. Paul Goldstein, Copyright 1.1, at 5 (1989)("The constitutional clause empowering Congress to enact copyright statute reflects the belief that property rights, prperly limited, will serve the general public interest in abounding national culture").

15. . I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital World , Richmond Journal of Law and Technology, April 17, 1995, at 38.

16. Congress responded to the problems of digital music recording with the Audio Home Recording Act of 1992, U.S.C. 1001-1010 (Supp. V 1993)

17. Id at 11.

18. Christopher J. Newman, Men on the Net , http://www.contrib.andrew.cmu.edu/~nifty/men.html, 1996.

19. Id at 87.

20. 17 U.S.C. 301 (1988)

21. U.S. Const., Art. VI.

22. Hines v. Davidowitz , 312 U.S. 52, 67 (1941), reaffirmed in Sears, Roebuck & Co. V. Stiffel Co., 376 U.S. 225, reh'g denied, 376 U.S. 973 (1964)

23. I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital World , Richmond Journal of Law and Technology, April 17, 1995, at 26.

24. I. Trotter Hardy, Contracts, Copyright and Preemption in a Digital World , Richmond Journal of Law and Technology, April 17, 1995, at 13.

25. Id at 45.



If you would like to communicate with me via e-mail
ENTER sabo@students.law.miami.edu