Copyright Owners Beware!! Are You Accurately Protecting Your Copyrights??

Personal Keepsakes, Inc. v. PersonalizationMall, No. 11 C 5177, Slip Op. (N.D. Ill. May 24, 2012) (Kendall, J.) is a great cautionary tale for small businesses and other copyright owners. Make sure you sufficiently protect your investment. Make sure your copyright notices are clear and that you are smart about what names you use when copyrighting your works. The details matter.

In this case, Judge Kendall denied plaintiff Personal Keepsakes’ (“PKI”) motion to reconsider in this copyright and Digital Millenium Copyright Act (“DMCA”) case.  The Court previously held that, a copyright notice on a separate page of a website from the allegedly copied work does not constitute the copyright management information (“CMI”) required by the DMCA.  Which means

The DMCA seeks to hamper copyright infringement in the digital age by protecting “copyright management information” (CMI) in various ways.17 U.S.C. § 1202. Specifically, the DMCA forbids distributing false CMI, removing or altering CMI, or distributing works knowing the CMI has been removed or altered. See id. CMI, is defined as the information about the copyright that is “conveyed in connection with copies” of the work, including the title of the work, the author of the work, the name of the copyright owner, and identifying numbers or symbols referring to copyright information. See17 U.S.C. § 1202(c).

PKI’s DMCA claim boils down two allegations: (1) that Defendants removed the CMI conveyed with the poems when it copied the poems, and (2) Defendants provided false CMI on the pages selling the infringing products and in their general website terms and conditions, which make various statements about copyrights on the website.

However all relevant CMI was not on the page where the poems and other works at issue were. The company name used to register the marks was PKI, however, the site only displays poetrygift.com. “Similarly, the titles cannot be CMI because the copyright registrations do not list the titles of the works as they appear on PKI’s website, but rather refers to them as ‘Personal Keepsakes VI’ and ‘Personal Keepsakes X.”‘ Pers. Keepsakes, Inc. v. Personalizationmall.com, Inc., 11 C 5177, 2012 WL 414803 (N.D. Ill. Feb. 8, 2012).  A general “Web Site and Original Verses—© (1991–2012)” on each page of PKI’s websitedid not make it clear that the poems were the “original verses” mentioned.

PKI also pointed to their terms of service which stated, “Our Site and all its content, including but not limited to its text, photographs including those of product, graphics, logos button icons, images, audio clips, and software, is owned by or licensed to ‘Abernook, LLC and may be protected by United States and international patent, trademark, and copyright laws and other intellectual property laws.” They claimed this general notice covered the entire site.

Put simply, these website terms are not close to the poem; rather, per PKI’s allegations, they appear on another page on the website. Some courts have held, persuasively, that a defendant must remove the CMI from the “body” or the “area around” the work to violate DMCA. See Schiffer Publishing, Ltd. v. Chronicle Books, LLC, No. 03 C 4962, 2004 WL 2583817, at *4, 14 (E.D.Pa. Nov.12, 2004) (finding no DMCA violation where a book contained 118 copyrighted photos with no CMI near them and the defendant had a general copyright notice on the whole book). That rule is consistent with the text of the statute, which requires the CMI to be “conveyed” with the copyrighted work. See 17U.S.C. § 1202(c).

This case teaches important lessons to copyright owners.

  1. Be consistent. The name used when you register copyrighted material should be the name used when distributing or using copyrights material.under. The same is true for all CMI.
  2. Be clear. Make sure your website makes clear the owner of copyrighted work and that your CMI is clearly linked to each work.
  3. CMI is extremely important. Items considered CMI should be carefully chosen and used are registered to protect works.
  4. CMI should be on the same page as each work. As a matter of law, if a general copyright notice appears on an entirely different webpage than the work at issue, then that CMI is not “conveyed” with the work and no claim will lie under the DMCA.  One copyright notice on an entire website is not sufficient!!

Do not lose rights to your copyrighted works because of small preventable errors. Consult a copyright attorney if you are unsure if your works are accurately and sufficiently protected. Remember the details matter, be strategic!

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