Infringement of Web Pages

The commercial success of the internet is due to the emerging field of internet web pages. Many people do not realize that a web page designer has various options for creating his/her own web site. Let’s assume a web page designer finds a nice background and a graphic picture on a web page somewhere in Alaska. The designer likes this picture so much that the designer downloads or saves the image from the computer and, uses it on his/her own page for another customer. Does such use constitute an infringement?

The threshold issue is whether the computer graphic copyrightable? For something to be the subject matter of copyright, the work must be an original “work of authorship fixed in a tangible medium of expression. Pictures are considered “works of original authorship fixed in a tangible medium of expression. Pictoral, graphic, and sculptural works are among those statutory categories of works which are the subject matter of copyright.

It could be argued that since this computer graphic is, in fact, sent by electronic impulses making up a data stream, this does not fit the definition of “fixed in a tangible medium” as expressed by the copyright statutes. However, upon receiving and using that file when downloading, the copy becomes “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” As the copyright statute does not have a specific provision for transmissions, that would protect one in the on-line-world, the law already considers floppy disks, hard disks, compact disks, and tapes tangible mediums of expression within the meaning of section 102(a) Even though the issue of subject matter for transmissions is not resolved, cases such as Playboy v. Frena and Sega v. MAPHIA considered transmissions as subject matter for copyright.

Notwithstanding that a legal question exists as to whether transmissions meet the subject matter of copyright. Assuming that transmissions are subject matter, the basic premise still exists that if one copies one’s graphic that he/she designed, and uses it, without the author’s consent, then is one infringing on anothers copyright. In the scenario given there was an exact copying of the graphic to another web page and this would suffice to show an actual infringement.

However, what if I downloaded the file then significantly changed portions of the graphic design using powerful photographic editor software packages such as Corel Photo-Paint or Adobe Photoshop.
The legal issue here is different for the web page designer. The issue is what if I change the original picture so much that it does not even seem like the graphic that I took. In this situation, the courts provide guidance to prove infringement even when the alleged infringement is not readily noticeable as an infringement.

The United States Court of Appeals for the second circuit in Arnstein v. Porter, explained that the plaintiff must prove “(a) that defendant copied from plaintiffs copyrighted work and (b) that the copying (assuming it to be proved) went so far as to constitute improper appropriation. To prove, (a) the defendant copied the plaintiffs work, the plaintiff must show actual copying or (b) what is termed proof of access, usually by circumstantial evidence. Even if a web page developer cannot prove that his/her graphic was actually copied, proof of access is significantly easier since the Internet allows one to save the graphic just by going to the page on the internet. In addition, proof of access is substantial considering the millions of person’s already on the Internet. In Playboy v. Frena, the district court undeniably found access from the fact that every month Playboy sells 3.4 million copies of the magazine.

In order to find similarities, courts will often use testimony and dissect the work to find similarities between the two. Often the court provides the following standard “the similarities must be so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result. Even upon showing proof of access and similarity for determining copying occurred, there is a second analysis which is to decide if the copying was an impermissible appropriation of the copyright (owners) work.

This query is answered by what is termed the ‘lay observer’ or ‘ordinary observer’ test to determine if a substantial similarity exists between the plaintiff and defendant’s works. In the on-line world the ‘lay observer’ or ‘ordinary observer’ test may not be sufficient. In Whelan Associates v. Jaslow Dental Laboratory, the court had to decide on the infringement of a computer program using the substantial similarity test as analyzed in Arnstein. The court noted “the complexity of computer programs , combined with the general public’s unfamiliarity with such programs, rendered the ordinary observer test senseless. This is significant as a web page is made up of a computer language called HTML and perhaps when applying the ‘lay observer test’, the court will look to the ‘ordinary web page developer’ instead of the ‘lay observer test’. In addition, for a computer graphics there are complex tools that computer graphic designers use for their works so this may be dispositive of using a ‘web page developer’ instead of a ‘lay observer’.

From the analysis above it would appear that even if the modern trend is to use web page developers to determine if there was an infringement or if the court just looks at the physical embodiment of the graphic it is likely that if one uses a picture or graphic even with changes copyright infringement can still be proven.

As one analyzes a copyright on-line issue, the obvious emerges, that even some basic tenets of copyright law will survive and be applied to certain graphic and other material on the internet. Surely, the proof of access needed to prove certain infringement cases may be easier when the person has access to a computer system thousands of miles away. Juries will recognize that if an alleged infringer uses a computer to take a graphic piece of art from a web page and incorporates this in his/her own web page, a copyright infringement occurred. Even assuming the changes are so significant from the original that the alleged infringer can escape liability if the ‘lay observer’ or ‘an average web page developer’ can see the similarities, the copyright law should protect those persons who spent hours or perhaps days to write and compile the graphics, texts, and links for his or her web page.