Forum Moderators: not2easy
I now have one ex member who posted some pictures send me a letter stating that I have to remove them all or he will take me to court.
Does anyone know how the land lies with this as I thought that any images etc etc would become proprty of the site once posted?
Many thanks.
To you have any Terms Of Service [webmasterworld.com]? That would help cover it. If not, they may hold the copyright for the submitted material and are entitled to request you remove it.
Why don't they ask you nicely?
I have some basic TOS but they didnt cover pictures that were submitted to the Gallery as I didnt think that anyone would ever ask for them back if that makes sense.
They have done this because they have been banned and have set up another site.
As far as I know, they do not hold any formal copyright for these pictures and I also have a post that they submitted before they left stating that we could have the pictures
If you have some documentation confirming you could use the material then you have a stronger case however, we cannot give legal advise at WebmasterWorld and I would recommend you consult legal council on the documentation you hold.
Because they make up a large part of the site
Adding copyright notices to HIS images would be highly questionable conduct.
I am not a lawyer by the way.
Richard
However, there is a small issue here of the implicit license that the copyright owner granted when he originally posted the images to your system.
Effectively, this is an act of publishing on his behalf, and he doesn't (under UK copyright law) have any right to revoke those works (under French copyright law, it is possible).
By publishing them to your site, it could be argued that he gave your site a non-exclusive, non-revocable license for the specific purpose of the reason that they were posted. Under estoppel of this license, I don't think he can really force you to revoke them. He can stop you from using that content outside of the implicit license.
In the same way that you did not have clear ToS to detail the nature of the licensing agreement from your perspective, he did not clearly state his side of the licensing agreement from his perspective.
I think this is a grey area though (for example: by analogy you see that Google offers you an ability to revoke your USENET messages from Google Groups - but generally, if you submitted an email to a mailing list or newsgroup in the past, there's no obligation on the owner of the mailing list or newsgroup to honour a later revocation request). Implicit licenses are fraught with problems: which is why making it clear via. ToS is always advisable.
Note that this problem would be an entirely different matter if someone else had posted them / infringed his copyright.
You should acquire advice from a suitably trained legal professional, though.
If it were me, I would remove the pictures.
Would I be able to put some conditions on the gallery stating that they belong to me when posted?
In a situation like this, the livelihood of the website could be under threat as a result of someone's "whim" to have content removed. The rights of both parties have to be considered here.
Consider this situation: the poster helped make the website popular by adding a lot of content, which in turn gave that poster a lot of high profile and helped establish a reputation. When the website was succesfull, the poster left, created a competitor (which was easy to do now that the poster had gained a reputation thanks to the first website), and then asked for revocation of original content from the first website. The original website would possibly die, and the poster has unfairly gained out of the situation. This is simply not a fair situation.
Consider this analogy: you allow yourself to be interviewed in a news article. It airs on national TV and is archived. You then send letters to the archive and news stations requesting them to revoke your interview.
UK statutory copyright law contains no provisions for revocation. UK courts would take an equitable perspective, and in this case, I think they would see it to be unfair for the copyright holder to first issue an implicit license, and then simply try to revoke it for their own later benefit.
Consult a legal professional.
I have looked at the copyright law and like you I cannot see anything that supports me having to take the pictures down
Cupra: The person who holds the copyright is the one who took the photo(s) which may or may not be the submitter. If the submitter does indeed hold the copyright, I think he has the legal right to make you take them down by merely withdrawing his permission. Without a TOS specifically saying submitters give you a perpetual license to use their photos, I don't think you have a leg to stand on.
This is NOT legal advice. Please consult an attorney.
[edited by: BlueSky at 10:54 am (utc) on Dec. 1, 2003]
This is all taken as ADVICE for me to then at least have some idea before I go to a solicitor, it indeed does look like I will have to take the pictures down and that makes a mockery of having a gallery that Members can submit pictures and I would have to withdraw that right as a lot of effort goes into putting the pictures up in the first place and I would not want to have to take them down again.
Could anybody recommend any TOC or TOS that would enable me to retain the pictures?
Whether a person was banned or not makes no difference to the implicit license. That's a separate issue. If I write an article for a magazine, and then are later banned from writing any more articles for that magazine, I don't gain any special rights to revoke my earlier articles. Quite simply: there are no statutory provisions for revocation. Like most other things: if you give your property to someone else (tangible or intellectual property), then unless it was obvious at the time that you were only giving it away temporarily (a lease), you have no right to request that property back at a later date.
I've studied postgraduate UK/EU intellectual property law, so I feel confident in this position. I'm not offering advice here, though, you always need to consult a trained specialist.
It just wouldn't be good to see a website owner suffer in this case.
That's not to say you couldn't prevail if you had an unlimited legal budget, but it seems unlikely that such an effort is worthwhile. If the person who created the images wants them removed, why not just remove them and get on with developing new sources of images that are supportive of your site rather than antagonistic? Rather than give this person any more exposure, you should dump his stuff ASAP.
Sometimes you do not do it to antagonise but to take advice before making an decision that affects many others.
One thing that is true of most intellectual property cases (and, indeed, most legal areas) is that the letter of the law may not make much difference if one side has greater resources, or greater willingness to spend money fighting something. It's possible to drag a case through the courts, ordering depositions, seeking disclosure, filing appeals, etc. in a way that can be financially draining and very time consuming for the opposition. Even if the other side eventually wins, it can be a Pyrrhic victory as they have been hurt financially and distracted for months or years.
Fortunately, it's unlikely that your ex-member has the resources of a major corporation. However, he may be more motivated to fight and may actually hire a lawyer. If I were in his shoes (under US law), I'd not only seek an injunction prohibiting your continued display of my copyrighted work but also use your refusal to remove the work as justification for royalty payments, not to mention direct, consequential, and punitive damages. ("Your honor, I attempted to sell my copyrighted images to Megacorp for $__,000, but when they discovered them on the defendant's website for free they cut off talks.")
Speaking as a business owner, I've found that one of the most effective legal strategies is to make a problem go away before lawyers get involved. It seems like you have an opportunity to do this.
However, I doubt this could have any retroactive effect. And stating this policy could result in many other people refusing to post pictures in the future.
I must admit that I don't understand the statement "until I see a piece of paper that states [that the law is on the poster's side] then I am not at liberty to remove them". Are you really saying you are not able to take the pictures down?
You are correct in suggesting that this illustrates a danger of not having a ToS: the confusion and argument over exactly where the rights stand. However, it's not entirely correct to suggest that without a ToS, that continued use is iffy. It's equally arguable to say that without a ToS, the right to revoke is iffy. The point is: without a ToS, the dispute has to be resolved by looking at the facts and pulling out exactly how the initial implicit agreement was entered into. This can be a nightmare and as you suggest result in legal costs and other annoyances that most people don't want to enter into.
I like analogies: here's another one: a friend is writing a newsletter. I contribute articles and photographs for a period of a year or so. Later, I decide that I'm not happy about having written those articles and photographs. I request an injunction and send a cease and desist to the friend to stop selling and existing newsletters, and to revoke the existing newsletters that have been sold (or, at least, to give me details of who the newsletters were sold to, so that I can revoke them). This is simply untenable: the publisher would be put in a nightmare position. Despite the fact that there is no explicit ToS, it's very clear that the original contributor consented to publication of his particular work, and while he still owns the copyright in the work and can pursue infringers of the work, it's a bit too late to recall his existing implicit license. Of course, everything has its price: so if the copyright owner were interested in paying for existing copies of newsletters, and the costs to recall those sold, then perhaps revocation would work.
I would suggest in this case: write a letter back to the poster, and explain:
You originally posted the articles / images to my website, so I consider that you have granted me an implicit license to retain those images for the original purposes that they were posted, and as there is no explicit contractual agreement between us, nor is there any statutory allowance for revocation of copyright works once they have been published, I don't believe that I am under any obligation to remove your works. I do not intend, and never will, use those works for any purpose other than that reasonably expected by the implicit licensing arrangement that you entered into.
In a different situation, where infringing copies of your works were on my site, I would not hesitate to honour your request for removal to uphold your rights as a copyright owner: however, in this case, it is clear that you originally contributed the works under your own consent, so the works are not infringing copies. I note that there are many other examples on the Internet, where once a poster has contributed to an email list, a message group, or some other online publication, that it is not possible to later revoke that original contribution.
Although it would be a measure of goodwill on my behalf to remove your works, I believe that would set a dangerous precedent as all my other users may decide to revoke their works. Furthermore, it would leave my site in an inconsistent state - requiring cost and effort by myself to satisfy your request - and it seems that your request is merely a whim. I don't believe that I should bear the cost of such a whim. I may be open to solution that adequately addresses these costs and issues.
To ensure that this situation does not occur in future, I will be amending the ToS of my site to clarify the position on contributions, and informing existing users.
I am open to further suggestions for how we could reach an amicable agreement on this matter. However, if we fail to reach agreement, I am prepared to seek other means to resolve the dispute.
