Story Updated 04/08/09 (see end) Jon Engle is a graphic designer from New Mexico. He has done work for many TV shows and TV networks as well as countless Web sites.
However, a recent series of events has put Engle’s reputation at risk. According to a post in Engle’s blog, a stock art site has accused him of copyright infringement. They have presented him with an $18,000 bill, threatened him with a lawsuit and even contacted his previous clients, claiming that he was under investigation for infringement and that the work he did for them “may have been stolen from their client.”
The problem, according to Engle, is that he created the works himself and that he believes someone uploaded them to the stock photography site without his permission, and in violation of that site’s terms of service. But the company, feeling that the uploads were legitimate, are aggressively protecting what they see as their intellectual property, using their copyright attorney.
However, it doesn’t matter who is in the right in this case. For either side to clear their name, they are going to have to prove that the work is theirs. Unfortunately, as Engle admits, this will not be a simple matter as he “would never have thought to plan for something like this”. Though he has some incidental proof, namely upload dates to LogoPond and metadata in the files themselves, these are hardly ideal since Engle is not completely sure when the images were lifted.
Engle’s story highlights the need for writers, artists, photographers and other creators to be aware that there are a million ways their work could come into dispute and to prepare for such a situation in advance. The end goal is be in a situation where, no matter what happens to your work, you always have proof that you created it first.
U.S. Copyright Office
The first and most obvious place to register your work is with the U.S. Copyright Office. For citizens of the U.S., registering with the USCO is a requirement to sue for copyright infringement within the country and registering before the infringement (or within 3 months of publication) is a requirement to claim statutory damages.
However, registering with the USCO is not practical for every single work. Not only is it cost prohibitive, $35 for most registrations, there is often an extreme delay between when a registration is filed and confirmation is received. Even with the new electronic system, it can take many months for a registration to be complete. Fortunately though, registration certificates do bear the date received on them, which helps once the certificate is mailed out.
Still, it is unlikely a USCO registration would have helped much with Engle’s case. Though it might have helped with some of the legal aspects of it as it also provides prima facie evidence of ownership, given the delays and the fact anyone can file for a registration (during disputes, dual registrations are not uncommon) it would have likely provided little public proof in this case.
As such, this case illustrates the role non-repudiation services can have. Not as official copyright registrations, but as a stop gap to overcome some of the shortcomings of the USCO when it comes to the court of public opinion.
Non-repudiation basically means that a party involved can not repudiate, or refute a claim. In this case, it involves bringing in a third party, other than the USCO, to validate a claim.
The idea is is that, once you create a work, ideally even before you upload it to the Web, you upload it to one these services where it is fingerprinted, timestamped and stored in some capacity. Should someone else wish to dispute the claim, you would have a relatively impartial third party to verify when the work was created.
Online non-repudiation services provide a near-instant verification of ownership and, though they are not a substitute for a registration with the USCO, they can provide some form of proof in between registrations. Best of all, they can be used with almost any kind of work, including text, images, audio and video, and there are even WordPress plugins and RSS integration to make the process easier and faster.
As the Engle case points out, there are many services on the Web that function very similarly to a non-repudiation service but do so simply as part of their service. For example, when you upload an image to Flickr, a video to YouTube, etc. the service creates a time stamp of when the work was uploaded.
The problem is that many of these services allow users to alter the time stamp of their work. This is often for legitimate reasons, such as to alter the order with which items are displayed, but this causes those timestamps to be questioned and makes them unreliable for such verification.
For a time stamp to be of any value, it can not be user-editable. This also eliminates timestamps on one’s own server, computer as well as in WordPress and other blogging platforms.
The good news though is that any service that doesn’t let users manipulate the time stamp can serve as a kind of ad-hoc non-repudiation service, making the process of providing verification of your work as simple as possible.
Proving that a work is your own can be difficult on the Web. When the official system, at least in the U.S., takes weeks and even months to provide verification and is expensive for bloggers, one often has to find other methods to validate their ownership while they wait.
Considering that content moves across the Web in mere seconds, it is important to find ways to verify your work as your own before it falls into the wrong hands.
Fortunately for Engle, the evidence he has appears to be pretty good. If his work was actually lifted from his Logopond account, he should be in a good position as the site not only has a good date stamp, but also includes comments that range back to when most of the logos were uploaded, providing another layer of verification.
Though no one wants to be in Engle’s position, it is important to plan as if it could happen because, as his case illustrates, it can literally happen to anyone.
It is much better to plan in advance and have nothing happen than to be caught off guard with no means to protect yourself.
Update: There is now evidence that Engle may not have been telling the whole story regarding this dispute and there is evidence that Engle actually did use images from the site in question as part of his logos. It seems that much is being settled in this case.
Obviously, this doesn’t change the need for artists, to verify when they created a work. It does, however, show that these disputes can take many different forms.