Dear Rich: Nolo’s Patent, Copyright & Trademark Blog

Dear Rich: I have a question. I read about the Target lawsuit and I wanted to know the rules for websites that must be accessible for the blind. I'm so glad you asked (and you're not the only one to inquire). The lawsuit between the National Federation for the Blind and the Target retail chain was settled last month. Until this lawsuit, many retailers believed that the Americans with Disabilities Act (ADA) defined "places of public accommodation" as physical stores, not websites. However, a 2006 federal court decision held that sites that accommodate the public with goods or services are also covered by the ADA (as well as by the California Unruh Civil Rights Act, and the California Disabled Persons Act).

To comply, you should avoid doing what Target was doing: (1) Target didn't have "compliant alt-text" which is embedded text that describes an image. (Visually-impaired users have computers that can vocalize the description.) (2) Target's website contained image maps and other graphical features which are inaccessible to the blind. (An image map is a picture containing multiple links--for example a map of the U.S.) (3) Finally, Target shoppers could only complete a sales transaction using a mouse -- visually impaired users must use a keyboard. You can read all of the web accessibility guidelines at the W3C site. By the way, the Dear Rich staff also wants to report that Congress approved an amendment to the ADA this week that will broaden the definition of disabled persons to include "individuals who could compensate for their disabilities with medications, medical devices or prosthetics" -- a group that the Supreme Court had previously excluded from ADA coverage.

Got a question for Dear Rich? Send it to dearrichquestion@gmail dot com, and make sure it has the header: "Question."

Dear Rich: What are the copyright and infringement implications for a website that took all the images from my daughter's wedding and claimed they "coordinated" the entire wedding when they did not? We gave the photographer permission to use photographs for marketing purposes but the site made claims that were unjustified in content. It has also appeared on several blogs. What are the limits for this? The girl who maintains the website was a bridesmaid in the wedding and is claiming she did the whole event (touchy situation because she is obviously a friend). Please advise.  I'm so glad you asked. Let's start with some basics. The photographer is considered the author and original owner of copyright. Photographic images are protectible under copyright law whether in print or digital format. Most pro wedding photographers use a written agreement that spells out everybody's rights (although some agreements don't mention rights at all). In many cases, the agreement allows the photographer to retain copyright but may permit the family to duplicate and post images for personal uses, provided that credit is provided.

You say you gave the photographer permission to use photos for marketing purposes. Was that part of a formal agreement, and did that formal agreement transfer of copyright to you? If so, you can request that any website posting the photos take them down under the DMCA takedown rules.

Absent an agreement transferring rights, the photographer controls the right to make copies, post the photos, etc. Legally, the photographer can stop others from posting and reproducing the photos although practically, few photographers will do so. (Before digital photos and scanners, wedding photographers exhibited more control. Nowadays, all they can do is blackmail the family by exposing the more embarrassing pix.)

Your problem goes beyond copyright because you're concerned that someone is making false claims regarding the wedding production. Obviously, the more the material is reproduced on websites and blogs, the harder it gets to halt the annoying activity. Legally, you can stop someone from posting false comments that are defamatory (injuring your reputation), invade your privacy, or are used for commercial purposes -- for example, the photographer licensed images of the bride to be used in a magazine advertisement. Since this is a family affair, it's probably not a good idea to pull out the legal guns. The Dear Rich staff (who truly love a good wedding) hopes that this imbroglio does not mar an otherwise pleasant wedding memory.  

Dear Rich: I purchased a web hosting package a few years back that included free website templates. When I created a different website, I used one of the templates, including the top photo. I just got a letter from a major stock photo company asking for $1,300 and to pay for a license or remove the image. I immediately removed the image, but I can't afford to pay $1,300. I have all the documentation about the free templates. Do I have to pay $1,300 for something I thought was free? I'm so glad you asked. $1,300 for a website image? Wow! Here at Dear Rich headquarters we pay istockphoto.com about $1 for low res images (like the one on the left). In any case, you did the correct thing by immediately removing the image (and keeping the documentation). Hopefully, that demonstrates your good will.

There are a few things that may be going on here. Your original web hosting package may have included a permission to use the photo but that permission did not extend to other web hosting services. Or, perhaps the first web hosting arrangement never really got the proper permission, so wherever you use it, you'll have a problem. The photo may have some digital watermarking embedded so that the stock photo company can trace all such uses and catch those who use it without permission. If you're using it under the terms of the original webhosting agreement, you need to look to your agreement and your webhosts for resolution. If not, the stock photo company likely has a legitimate claim for infringement.

How far will they pursue it? It's possible they could file a lawsuit, but that doesn't seem practical or likely -- they wouldn't recover the costs of the litigation. Odds are good that if you write and explain your mistake -- you mistakenly thought you had a license to use it -- the whole thing will go away. They may send some more threatening emails, but the chances of anything going beyond that are unlikely. If I'm wrong (hard to believe, but it happens), let me know and maybe we can trigger a Streisand effect.

Dear Rich: I have a question. I'm in charge of a website for our local elementary school. We have a program where students can upload their drawings. Someone told me that I have to get permission from the parents or else I am in violation of the law. Is that true? I'm so glad you asked. The law that you are probably referring to is the Children's Online Privacy Protection Act (COPPA). You need to be concerned about COPPA if your website is directed at children (under 13 years of age) and it collects information "that would allow someone to identify or contact the child," -- for example, names, addresses, phone numbers, email addresses, and similar information. COPPA also applies if you're using cookies (no, not the chewable kind) to track the child's activity. So, in the case of your website, you would want to be sure that the drawings that are uploaded do not contain personally identifiable information -- for example, the child's address is written on the drawing of a house, a license plate is written on a drawing of a car, or names are used to identify family members . If you are collecting personally identifiable information, you'll need to comply with the Act's requirement for parental permission. What's the biggest fine so far for violation of COPPA? $1 million.

Dear Rich: I have a question. I've been buying domain names that are common misspellings of well-known online retailers and then setting up websites with Google Ads. So when someone types in the wrong spelling, they arrive at my site. Then, they can then click through to the correct company's site using a Google Ad. I got a letter from one of the companies telling me to take down my site and give up my domain name. Why? Sure, I make some money, but aren't I doing a good thing by leading people who misspell domain names to the right company? I'm so glad you asked. I can't tell you whether what you're doing is a 'good' thing or a 'bad' thing -- let's leave that up to the Dalai Lama -- but I can tell you that what you're doing is called typosquatting.

A typosquatter purchases misspellings of domain name in the hopes of catching and exploiting traffic intended for another website. (It's been a lucrative source of income for many years.) Typosquatting is a variation of cybersquatting and if the company whose name you're exploiting takes you to arbitration under international domain name arbitration rules and proves you're acting in bad faith, you'll have to give up the domain name. If the company takes you to court in the U.S. instead, you'll have to give up the name, and perhaps pay damages. Some companies guard against this practice by purchasing the misspellings, such as www.amzaon.com (sic). Others have to chase down violators and either buy the name back from the squatter or go after them with lawyers -- for example, Land's End went after a typosquatter who purchased domain names such as www.lnadsend.com and www.landswnd.com and then demanded money for referring customers under the Land's End affiliate program. Nice scheme. (Land's End prevailed in the early stages of litigation, but so far, the company hasn't managed to acquire the domains.) Another unfortunate problem -- some unscrupulous typosquatters trigger malware. Arrivederci!

Dear Rich: I have a question. I'll be using a lot of screenshots from different websites in my book. Do I need to get permission for that or is it a fair use? I'm so glad you asked. Conventional wisdom (and the Electronic Frontier Foundation) says that an unauthorized screenshot is an infringement. That said, the use of screenshots rarely triggers a complaint because either: (1) the copyright owners don't want to complain about something that promotes their company -- for example, an online tutorial about using Microsoft Word, or a book about starting an eBay business, or (2) the copyright owners believe the use is likely to be excused as a fair use. Although issues don't often arise, occasionally copyright owners do complain -- for example, Apple complained about pre-release screenshots of the iPhone. Some sites place limits on your use of screenshots in their user agreements.

Keep in mind that if the copyright owners do complain, the results can be unfortunate--it may disrupt publication of a book or other product. Perhaps a more important issue to consider is whether what you are doing is likely to anger or annoy the copyright owner. If it is, proceed with caution and review your use of the company's trademarks so that your use doesn't imply an association or endorsement.

P.S. In the future, sites will be able to block screenshots.