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Copyright of forum users' avatars

Posted: Sat Feb 06, 2010 8:36 pm
by Henry
I have a forum on which users are allowed to upload their own avatars. Some people use their own pictures, some use cartoon characters and others photographs of famous people (actors, politicians). I am just wondering where do I stand in terms of Copyright as it is my site, but I didn't upload these images, they are user generated. How I can be sure that they are allowed to use these images, have owner permission or own copyright ? Any ideas will be appreciated. Thanks.

Posted: Mon Feb 08, 2010 1:59 pm
by CopyrightAid
Hi Henry.

Personally I would do 2 things:

1) Make sure your users understand that they should only upload avatars that they have permission to use and that they are liable for the content they upload).
(i.e. some kind of statement on the upload screen).

2) Make sure that if you do get a complaint you remove the avatar from your site without delay.

Posted: Tue Feb 09, 2010 10:58 am
by Henry
Thank you for your reply. I definitely will amend terms, but would it be enough if any copyright owner will demand compensation?

Posted: Tue Feb 09, 2010 3:08 pm
by CopyrightAid
That's why I put point 2..
2) Make sure that if you do get a complaint you remove the avatar from your site without delay.

It's not your fault if someone uploads infringing material without your knowledge, but you may be liable if you allow an infringement to continue after you have been notified.

Posted: Tue Feb 09, 2010 4:04 pm
by AndyJ
Whilst it is not a defence against infringement, under UK law you cannot be sued for damages if you had no reason to believe the item was copyright, so effectively the only real remedy a copyright holder has is to get the image removed. The relevent bits of the Copyright, Designs and Patents Act are sections 97 and 97A:
"97. Provisions as to damages in infringement action.
(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
(2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—
(a) the flagrancy of the infringement, and
(b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require.

97A. Injunctions against service providers 
(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.
(2) In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to—
(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013); and
(b) the extent to which any notice includes—
(i) the full name and address of the sender of the notice;
(ii) details of the infringement in question.
(3) In this section “service provider” has the meaning given to it by regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002.

However, that assumes that all of your website operations are in the UK. If your forum is hosted on a server in the USA then their laws will apply. The main one is the Digital Millenium Copyright Act (DCMA) which effectively obliges you as a site owner to comply with any 'take-down' notice served on you by someone claiming to be the copyright owner, although the alleged infringer (in this case the person who actually posted the avatar) does have a right of redress if he can prove the original work of art was not indeed copyright, or that he is in fact the actual copyright owner etc.