Protecting one's intellectual property online can seem like an onerous task. This is especially the case with copyrighted content. However, content creators can help protect their copyrights by taking several actions.
Keep in mind that according to the U.S. Copyright Office, a copyright is a "form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works." Notably, copyrights protect the expression of ideas, and not the ideas themselves. Additionally, copyrights attach immediately when the work is fixed in some form of tangible medium of expression (like a book, recording, painting, blog post, etc.) Although it is not necessary to register a copyright for protections to attach, a registered copyright has additional benefits should someone infringe. For more information on what a copyright is, see my earlier post here.
So what steps can you take to protect your creative, copyrighted works?
Place a copyright notice on your work. In the context of protecting copyrights online, you can place a copyright notice alongside your work. This need not be complicated, and can simply state "Copyright 2014. All Rights Reserved." Although this isn't necessary, it informs potential infringers that you are aware of your rights with respect to the work, potentially discouraging them from infringing. For photos, this can be effectively accomplished by watermarking your images.
Define others' rights in utilizing your work. Create a policy (and place a link to it on your site) that tightly defines how people may use your content with and without your permission. Effectively, this creates a route for potential infringers to utilize your work in a manner that respects your copyrights by offering them a limited license under terms you decide. Even better, these terms establish how other people can freely advertise your work.
Consider registering your copyright. Some content, especially if used as a means of generating income, may warrant a Federal Copyright Registration. This is purely optional, although there are benefits to registering a copyright which primarily manifest during litigation. Some of the added benefits of registration include: the ability to sue for attorney's fees; the ability to sue for statutory damages (which is easier to prove than actual damages); a presumption (after 5 years) that the copyright is valid and all facts in its registration are true; the registration itself constitutes notice that said content is copyrighted. Additionally, registration may allow you to transfer copyrights easier.
Find out if your copyrighted material is being infringed upon. Once you are aware that your work is being infringed upon, you can take steps to have the infringing work taken down, or at least attribute credit to you, whichever you deem appropriate. There are many different tools you can use to find out if your works have been infringed upon. Not surprisingly, a Google search is a great place to start as the search engine has both text and image search capabilities. Sound recordings are much more difficult to police as there can be multiple copyrighted elements, in addition to the technical difficulties of searching audio recordings.
Contact the infringer. Generally, there is some manner available to contact someone that improperly posts your content, be it via email, comment, or message. Utilize whatever method you believe to best contact the infringer and request that they remove your content, or point them in the direction of your use policy and request that they abide. If they fail to remove the content or fail to adhere to the policy, locate the website's ISP information. To do so, you can use this site or this site. Once you have the ISP's information, send a Takedown notice (free samples can be easily found through a Google search) to the ISP, which states that one of the sites it is hosting contains infringing material. The Digital Milennium Copyright Act allows for an ISP to be held liable for hosting infringing content. Generally, once the ISP is notified that they are hosting an infringing work, the website will be taken down so the ISP can avoid liability.
When to hire an attorney. If the ISP fails to remove the content, or take down the website, then you may wish to hire an attorney to prosecute your claim of intellectual property infringement. If you have yet to register the copyright of your protected content, then you may have to do so before any litigation may commence.
Following these steps will help you protect your copyrighted content online, allowing you to only worry about creating more content to share with the world.
On September 8, 2014, TMZ Sports released the video of Ray Rice striking his fiance in the elevator of an Atlantic City Casino. Until this point, the NFL claimed it had not seen the video, despite requesting it from the police. Thus, the video played no part in determining Rice's initial two game suspension (which I initially discussed here).
Although the NFL now faces questions about the sufficiency of its investigation process, the League should also be faced with a lawsuit. After TMZ released the video, Rice was released by the Baltimore Ravens. More importantly, the NFL indefinitely suspended RIce from the League, despite having initially suspended Rice for two games. In other words, the NFL punished Rice for the same offense twice.
Conceptually, punishing a player twice for the same offense is a problem. This would allow the League's Commissioner to reserve seemingly unending power to exact punishment and then change his mind as he sees fit. Importantly, although the Commissioner is granted the authority to punish players under Article 46 of the Collective Bargaining Agreement ("CBA") entered into by the NFL and the NFL Players Association ("NFLPA"), which is further specified in the NFL Personal Conduct Policy, the CBA is silent as to multiple punishments by the Commissioner for the same offense.
The Commissioner's second punishment should be challenged in court. In order for Rice to succeed in challenging that the Commissioner exceeded his authority by disciplining Rice a second time for the same offense, he would have to prove that the indefinite suspension was arbitrary and capricious. This burden of proof, although deferential to organizations as decision makers, may be achievable for Rice.
In support of his claim, Rice would rely heavily on the NFL's investigation process which led to his first suspension. During the investigation, the NFL gathered evidence it deemed necessary to discipline Rice. The NFL recently stated that it requested "any and all information about the incident, including the video from inside the elevator" and that "[The elevator] video was not made available to us and no one in our office ha[d] seen it until [TMZ released it]."
Despite being aware of the existence of the elevator video and knowing the League had not seen it, the Commissioner decided to discipline Rice by suspending him for two games. Therefore, the Commissioner's second disciplining of Rice can be seen as arbitrary and capricious because there is no rational connection from the indefinite suspension to now seeing the contents of the video they implicitly rejected to pursue. In essence, the NFL cannot claim that the contents of the video are new evidence, as they were aware of the video's existence and chose not to ensure they saw the video before exacting discipline.
Another point that Rice could raise, albeit a weaker one, is that he was disciplined a second time absent any investigation, which is arbitrary and capricious as the League violated its own rules. Within less than a day of the tape's release, the NFL suspended Rice indefinitely. The NFL Personal Conduct Policy states that "Upon learning of conduct that may give rise to discipline, the League may initiate an investigation" and "Upon conclusion of the investigation, the Commissioner will have full authority to impose discipline as warranted." The Personal Conduct Policy only discusses an expedited disciplinary process with respect to repeat offenders. However, Rice's single incident of known domestic violence is the only time his conduct had given rise to an investigation or discipline. Therefore, under its own terms, the NFL would be treating the viewing of the elevator video as a separate disciplinary incident due to the lack of an investigation. However, as the video portrayed the known actions in the same event as the first disciplinary matter, any additional discipline would be arbitrary and capricious.
Further evidence that the NFL is treating the elevator video as a separate discipline-worthy incident comes from the recent changes to the Personal Conduct Policy. In the fallout from the perceived leniency of Rice's initial two game suspension, the Commissioner mandated that enhanced penalties for domestic violence be placed within the Personal Conduct Policy. Under these enhanced penalties, a second domestic violence offense mandated that the player would be indefinitely suspended from the NFL, and would only be allowed to apply for reinstatement after a year. Such discipline is identical to that received by Rice following the release of the elevator video. However, as noted above, the release of the elevator video cannot be effectively said to be a separate disciplinary event.
Should Rice be able to meet the arbitrary and capricious burden, the Court would then overturn his indefinite suspension and instead, his previous two game suspension would hold. However, Rice may not wish to bring suit out of public relations concerns. Certainly, his image has been rightfully tarnished by his actions, and bringing suit to be reinstated in the NFL may create additional negative perceptions. However, the NFLPA has the ability to bring suit on his behalf. The NFLPA is particularly interested in this matter because of the precedent that it could set on player discipline. Simply put, the NFLPA does not want the Commissioner to be able to discipline a player twice for the same offense. Should it bring the suit on behalf of Rice, he would still have the benefit of having his indefinite suspension overturned if the NFLPA succeeds.
Although Rice's actions were truly despicable, League officials must be forced to correctly discipline players on their first attempt. Otherwise, no discipline is ever final.
Earlier this week, the New York Post reported that the Union Street Guest House, a hotel in Hudson, New York, had a unique method of controlling negative reviews online. According to the New York Post, the hotel's website stated that “If you have booked the inn for a wedding or other type of event . . . and given us a deposit of any kind . . . there will be a $500 fine that will be deducted from your deposit for every negative review . . . placed on any internet site by anyone in your party.” However, the money would be refunded if the negative review is removed.
Effectively, this policy means that if a wedding guest posted a negative review of the hotel on the internet, then the couple whose wedding took place at the hotel would be fined $500.
Although the hotel's owner stated that the company policy was a joke, a Yelp review from November 12, 2013 (notably several months before the New York Post article) states that the reviewer received an email threatening to enforce the policy.
Businesses are always seeking to protect their reputations, especially online. However, this hotel's policy is not legally sound.
Challenging the hotel's policy
Should the hotel have enforced this policy, it could have been successfully challenged in court as the policy is an unconscionable contract. New York courts have defined an unconscionable contract as being "so grossly unreasonable...in light of the mores and business practices of the time and place as to be unenforcible [sic] according to its general terms" (Gillman v. Chase Manhattan Bank, N.A., 73 N.Y.2d 1, 10, 537 N.Y.S.2d 787, 791 ).
In order to determine whether a contract is unconscionable, New York courts utilize the following two-part test:
Essentially this means there must be a showing of an absence of meaningful choice with contract terms that are unreasonably favorable to one party. The substantive element allows a court to analyze whether the contract unreasonably favors the Defendant.
Should the Union Street Guest House's policy be challenged in court, it would fail the above test. Procedurally, it does not appear as if a complaining party would have had any choice to enter into the contract if they wished to hold a wedding at the hotel. Nothing has been reported as to the negotiability of this policy, and placing the policy on the hotel's website creates the impression that it is a standard policy of the hotel.
However, analysis of the substantive element provides much stronger evidence for the policy to be found unconscionable. First and foremost, it is unclear whether any couple holding a wedding at the hotel was made aware of the policy. If the policy truly was a joke as the hotel owner stated, then it likely would not have been found on, or annexed to, any of the other contracts the couple would have signed. Additionally, should the policy have only been located on the website, it can be argued that the hotel was deliberately hiding the policy from couples seeking to hold their weddings at the hotel.
The terms of the policy, as written, are unreasonably favorable to the hotel. The policy has the effect of limiting the speech of third parties to the contract, which is odd, unexpected, and a violation of society's mores and business practices. On public policy grounds, the court would likely find the policy unenforceable because society wants to encourage speech about businesses to empower consumers.
Potential recourse for Union Street Guest House's negative viral publicity
Shortly after the New York Post article was published, news of the hotel's policy went viral on the internet. As a result of this negative viral publicity, internet users quickly took to websites such as Yelp to post one star reviews citing the hotel's policy for negative reviews as the reason.
Although approximately 5 pages of such reviews on Yelp have been removed in the past few hours, there are negative reviews that have been posted subsequent to the hotel's viral publicity that discuss previous stays at the hotel. Should these reviewers be lying in their negative posts, the hotel could potentially have recourse against them. As previously discussed here, businesses can sue reviewers for false, negative reviews on defamation grounds.
If some of the recently posted negative reviews are based on lies, it would be difficult for the hotel to succeed. One of the elements of a defamation claim is proof of damages that resulted from the false statement. Given the fact that the hotel has experienced a great deal of negative publicity in the past few days, it would be extremely difficult to prove that any false reviews caused damage to its business. Nonetheless, the hotel should continue to monitor its reviews, especially as time distances the hotel from its viral notoriety.
It is difficult for businesses to protect their online reputations, but they should employ legally sound measures to do so. Instead of threatening $500 fines, the Union Street Guest House should have engaged its negative reviewers in a positive manner. If the hotel received negative reviews that contained lies, it could have then proceeded with a defamation suit against those reviewers. Hopefully, the Union Street Guest House's policy to limit negative reviews, and the viral notoriety it spawned, serves as a cautionary tale to other business owners.
As the internet has grown, businesses have had to contend with a multitude of websites that allow users to post reviews of their experience with a business. One of the most popular consumer-review websites is Yelp. Its understandable that every business will have a few dissatisfied customers, but what if a dissatisfied customer posts a negative review that is full of lies?
It is difficult enough for a business to deal with negative reviews that are truthful, but there are only two options for dealing with a negative review that is a lie: If the lie is not particularly scathing, the business could respond to the review; or, if the lie if is so harmful to your reputation that you believe it will harm your business, you can sue the reviewer for defamation (or at least threaten to do so.)
In order to prove defamation in this scenario, it must be shown that:
Earlier this year, in Virginia, a jury found that a homeowner defamed her contractor when she posted two reviews stating that the contractor botched her home renovation and stole from her. The sole reason the contractor was not awarded the $750,000 he should have won was because the jury found that the contractor also defamed the homeowner in responding to her negative reviews with accusations. This case opened the eyes of many business owners across the country.
Yelp has correctly stated that "litigation is not a good substitute for customer service," and business should only sue for defamation as a last resort. In this scenario, filing suit should only be reserved for blatant and serious lies.
Further, the idea of being sued for defamation may be enough to encourage the posting-user to take down their false damaging comment. As long as the business could have a conceivable defamation suit against the user, it may be more cost-effective for a business to have an attorney send a letter to the user demanding the removal of the comment, or otherwise be sued for defamation. However, this strategy should not be abused to suppress truthful free speech.
Businesses have a difficult enough time finding ways to manage and appropriately respond to truthful negative reviews online. They should not be subject to harmful lies as well, without recourse.
Quiles Law is an esports and sports law firm based in New York City.
1177 Avenue of the Americas
New York, NY 10036
(P) (917) 477-7942
(F) (917) 791-9782
Attorney Advertising. The information presented in this site should not be construed to be formal legal advice nor is it intended to form any attorney/client relationship. Our attorneys, collectively, are licensed to practice law in the States of New York, New Jersey, and Pennsylvania. Copyright Roger R. Quiles, Esq., 2019. All rights reserved.