Today, the US Court of Appeals for the 4th Circuit issued a ruling that includes the following:
We therefore hold that an electronic agreement may effect a valid transfer of copyright interests under Section 204 of the Copyright Act.
This is a very big deal for any copyright owner… more so than it may at first appear.
As many of you may know, you cannot transfer ownership of your copyright without a signed writing. Until now, most read this to mean that you needed an actual piece of paper with an actual signature. Not according to this court.
Under this ruling, the court says that it is possible now to transfer your ownership by clicking “Yes” or “Agree” on a properly drafted Terms of Use/Service agreement that includes a copyright transfer (there is a footnote, number 13 in fact, that speaks to that “properly drafted” bit, if you want to get picky). This ruling says, in essence, that the E-Sign Act, which permits electronic signatures on most documents, applies to copyright transfers.
So now, when you click “yes” or “agree” on a Terms of Use/Service and uploading a photograph, you could be giving away your ownership of that photo.
Yes, this is only one circuit, but other circuits can follow that ruling so, as they used to say on Hill Street Blues, be careful out there.
Leslie,
Thank you so much for posting this and letting us know. Do you think this will expand beyond this court and or be upheld vs. challenged? Is this the future?
Copyright and direct ownership are becoming more and more the expectation of clients these days. How in your mind shall we deal with this?
If anyone else has an opinion on how to handle the gaining trend of ownership expectation I think it would be useful to us all to have gain not only an understand but a strategy.
Don
Many, many photographers still say “no” to clients who want copyright. It hasn’t changed as much as some people make out (usually clients, btw, who are trying to make it sound normal).
As for this being “one court” and its chance of being overturned, it is one circuit (with is a chunk of the country–not just one district) and it makes sense legally. It’s not a bad thing–it’s neutral, actually. It simply means that copyright owners need to be more aware of what they are clicking/signing electronically. This is also true for regular people.
Every time any of us clicks “OK” on TOS, we are likely to be agreeing to terrible things like Arbitration Clauses (which mean that if that company screws us, we can never, ever join in a class action or get a jury trial).
Not surprising, and I have always proceeded on the assumption that when I agree to online user terms, I HAVE actually agreed. I would’ve liked to see a court ruling that defined how far these things can go, as many are very one sided and contrary to copyright law. However, more and more in the US the courts are upholding contracts of adhesion as binding, and allowing just about any kinds of rights to be signed away.
Agree about the earlier comment that mentioned arbitration; there is very little you can buy or do anymore that does not have an arbitration clause that strips you of your right to use the legal system in a dispute. The business using the arbitration clause likely has a repeat player situation with the arbitrators, too, making it very biased in the businesses favor. That is the main reason they use this clause; it virtually guarantees they will win every dispute. Furthermore, it’s private, so arbitrators’ decisions don’t have to be based in legal precedent, don’t have to be explained, can’t be appealed, and are not public record. I think only one or two states requires arbitration decisions to be published, but it’s not well enforced, and important details in the record are lacking and give a very skewed picture, e.g. a “win” for a consumer might mean they were awarded a tiny fraction of their actual damages but it’s still a “win” in the record. Many of the arbitrators have very shady backgrounds, and have changed the name of their arbitration firms over and over to avoid being found out by anyone who bothers to google them before agreeing to arbitration.