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Lynne Hess
August 28, 1996
Contents
Abstract
Introduction
The TNC Web Site
How to Avoid Copyright Problems
Copyright Issues Raised by the Web
This article explains how to avoid copyright problems using images on your Web site, based on experiences acquiring copyrights for The Nature Conservancy of Washington Web site 
.
As a Web designer, you are a maverick in this relatively new arena of Web site design. There aren't a lot of rules, so you feel free and confident in designing Web sites that are engaging, exciting, and interactive. After all, this medium is multidimensional compared with the conventional printed magazine and demands to be treated differently. So consider this scenario:
You've been asked to design a Web site for a company that wants an engaging, active site and has the budget to spend on it. Finally, this is your chance to make Web site history. You come up with a great idea, turn that idea into a great layout, take the layout and turn it into a framework, and add information and details to make the site rich and interesting. But something is missing. You need graphics to make this site come alive. You're a designer, you collect images, and you've got this great postcard from somewhere -- it's just the image you've been looking for, so you scan it in and add it to the site. It's okay, you think, there is no copyright on it. Or you find a bitmap someone sent you and include it on your site. You've used it before to add a visual statement to a presentation, so it's okay, right?
Wrong! You're busted!
Why? Because that cool graphic you've had for years may be copyrighted even though you can't tell from looking at it. If you use the art on your Web site and the owner sees it, you can be sued, and there goes your reputation and possibly your career.
I recently worked on acquiring copyrights for The Nature Conservancy of Washington's Web site and for a CD-ROM Microsoft produced for the World Wide Live: Activating the Internet event. The goal of this article is to help you avoid some of the pitfalls that you could encounter when using images on your Web site.
In our work with The Nature Conservancy (TNC), it was our goal to design a Web site that would really convey a feeling of who TNC is and what they do. This meant including many of the wonderful images donated by nature photographers for use in TNC's magazines and publications. Because TNC already had permission to use these slides in their magazines, we assumed that we could use them on TNC's Web site as well. We didn't know that TNC needed to add terms to their existing legal agreement to cover the use of slides in an electronic medium such as a Web site. The agreement included language specifying license and territory, use and return of photographs, and compensation (should slides be lost or destroyed), and spelled out exactly how copyright credit would be given. Rewriting the legal agreement slowed down the Web design process because we didn't know which slides we could use until we had permission from the photographers. However, we prevented a disaster because we took the time to take care of this issue.
The second part of this equation involved a CD-ROM Microsoft wanted to produce that included a snapshot of the TNC Web site. We worked with Keith Lazelle (a well-known and successful nature photographer/artist) and our legal department to arrive at an agreement between Microsoft and the photographer. This agreement included such things as the definition of an "image", license fees, license grant, warranty and indemnity, acknowledgment: licensed product marketing, term and termination, and other issues. If you plan to use art that is not copyright-free, I cannot over-emphasize the importance of working with your artists and someone who knows copyright law.
With some effort and experimentation, you can easily come up with artwork of your own that you can use on your Web site even if you aren't a graphic designer. In the case of the TNC Web project, in addition to using slides from nature photographers that involved copyright permission, we used slides that TNC owned the rights to. No further permission to use these slides was necessary. TNC also used copyright-free slides from staff members.
There are various publications and CDs you can buy that are filled with copyright-free images and art. You can also get audio tapes of copyright-free material if you want to include sound. This eliminates the need to worry about copyright infringement issues and can be the right solution in some cases.
In the case of TNC, many of the photographers donate their work because TNC is a non-profit corporation. However, this may not be the case with the site you are designing, and it is important to pay artists fairly for their work. For the TNC site and the Microsoft CD, we worked with Keith Lazelle and our legal department to come up with an agreement that would be fair and equitable to photographers.
Who hasn't taken a book and copied portions of it for personal use, or made color copies of art to try out an idea? This is copyright infringement, and while it's not likely that anyone would come after you at home because you copied something for personal use, if you copy artwork and post it on the Web, you could be in trouble. Using other artists' work without permission or "borrowing" images from other Web sites is tacky, violates copyright law, and is never acceptable. To protect artists from this kind of copyright violation, we made sure that each slide was copyrighted by adding a copyright statement to the side of each image, underneath the image, or at the bottom of the page, depending on the page layout. We also made sure that the images used on the site were small -- about the size of a large postage stamp -- for two reasons: The small size resulted in faster displays, and the resolution of the images made it worthless for someone to lift the image, enlarge it, and reproduce it illegally.
If you are designing Web sites, think of yourself as a publisher. This will help alert you to possible problems such as copyright issues and prevent potential trouble once your Web site is finished. Remember, replacing images and graphics on a site at the last minute under the pressure of a deadline can be costly and time-consuming.
Unfortunately, there are no programs that provide automatic warning messages telling you that you are in violation of copyright law. So, unless you have dealt with copyright issues extensively, you are probably not aware of the various kinds of things that could get you in trouble. It's a good idea to check with your legal department or a lawyer who knows copyright law to be sure.
It is dangerous and naïve to assume that anything that hasn't been copyrighted is copyright-free and safe to use. Every photographer I talked to mentioned cases where someone had helped themselves to one of the photographer's images and used it without permission. You may never do this yourself, but how do you know that the art you want to use in its current form wasn't acquired illegally from someone else? Recently, I heard of a case involving a Web designer who assumed that the artwork was legal and is now involved in a huge lawsuit. The artist found his work being used without his permission on a site, could prove the work was his, and decided to take the matter to court.
The world of Web design is new territory. There are few hard and fast rules that let you know what you can and cannot do, so it helps to be aware of possible situations that could get you or your company into trouble or that could slow down the development of your Web site. Make sure to consult a lawyer or your legal department on specific copyright questions and issues -- it is well worth the time and expense.
If you approach Web site design with common sense and awareness of potential trouble spots, you can design away to your heart's content, steer clear of trouble, and still make Web site history.
Lynne Hess is a freelance writer and gourmet chef.
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