What would an American company have to do to stop a foreign website
from using its images?  My personal situation is that a New Zealand
based website is using a large number of images taken from an American
website.  I'd like to know if they legally able to get away with this,
and what the American website could do legally to stop the New Zealand
site using its images.

Hello jaffatm~

First, a disclaimer. I am not a lawyer, and while I am knowledgeable
about copyright law, this Answer should not be construed as legal
advice.

Now, every country has its own copyright laws, but in New Zealand
?fair dealing? (what we call ?fair use? in the U.S.) has definite
limits:
?In New Zealand, fair dealing includes some copying for private study,
research, criticism, review, and news reporting?The factors
determining whether copying for research or private study is judged to
be fair dealing in New Zealand are its purpose, its effect on the
potential market or value of the work copied, the nature of the work,
the amount copied in relation to the whole work, and whether the work
could have been obtained in a reasonable time at an ordinary
commercial price.? (?Fair Dealing,? Wikepedia:
http://en.wikipedia.org/wiki/Fair_dealing#Fair_dealing_in_New_Zealand
)

However, ?In New Zealand, making a copy of a single article from a
periodical publication for research is currently treated as fair
dealing, whether the research is done for commercial advantage or
otherwise. Rarely do rights-holders receive any return from these
widespread practices.? (?What Do You Consider ?Fair? Dealing?,
Copyright Licensing Unlimited:
http://www.copyright.co.nz/fair_dealing.htm )

So, how strong your case is *may* depend upon the nature of the foreign website.

Nonetheless, there are several things you can do to stop the
infringing website from using your copyrighted materials.

Typically, a strongly worded letter from an attorney will do the
trick. You should not expect to receive damages; the idea here is
simply to end the infringement. This type of letter is called a ?cease
and desist? letter. For information about what this letter should
contain, see ?Internet Copyright Law,? KeytLaw:
http://www.keytlaw.com/Copyrights/cheese.htm )

If such a letter produces no results, you may have a tough road ahead.
Another option is to sue?and if you sue, you will really need to have
already registered the works in question with the U.S. Copyright
Office. If you haven?t done this, many lawyers will suggest you let
the matter slide, start registering everything with the Copyright
Office from now on, and if and when registered works are stolen by
this foreign website, proceed with a lawsuit then. For instructions
and information on registering works with the U.S. copyright Office,
see ?Registering A Work (FAQ):
http://www.copyright.gov/help/faq/faq-register.html#register  . Also
check out the information on registering works at ?Internet Copyright
Law:? http://www.keytlaw.com/Copyrights/cheese.htm  .

If your works are registered, you may seek monetary damages, and you
will have a much stronger lawsuit. Bear in mind, however, that
copyright lawsuits can be costly, especially when they involve an
infringer in another country. Nonetheless, you should speak to a
copyright lawyer about this possibility.

Another possibility is to take advantage of the Digital Millennium
Copyright Act. Under this Act, you can contact the infringer?s ISP or
host, and try to persuade them that the law is being broken. The ISP
will either delete the material, or shut down the website.  Again,
please consult ?Internet Copyright Law? (link above) for specifics on
how to go about contacting the ISP.


For further information, you may find the following articles helpful:

? "How to Obtain Website Copyright Protection? KeytLaw:
http://www.keytlaw.com/Copyrights/Register.htm

? ?The Digital Millennium Copyright Act,? UCLA:
http://www.gseis.ucla.edu/iclp/dmca1.htm

? ?Copyright Protection for Websites,? Law Girl:
http://www.lawgirl.com/webcopyright.shtml

? ?International Copyright,? University of Washington:
http://depts.washington.edu/uwcopy/Copyright_Law/International_Copyright_Law/

Kind regards,
Kriswrite

KEYWORDS USED:
Digital millennium act
?New Zealand? ?copyright law?
?New Zealand? ?fair dealing?

---

Request for Answer Clarification by jaffatm-ga on 23 Jul 2005 19:24 PDT

Hello,  I just thought I'd post an update.  Repeated email attempts to
the webmaster to stop the infringement have gone unanswered,  and the
New Zealand website appears to be designed and targeting New
Zealanders only.  They dont appear to be selling a product, just using
my images for information purposes.  So it would appears I dont have
much of a leg to stand on.  Very happy with the answer received, and
comments... and any more comments and advice would be appreciated.

---

Clarification of Answer by kriswrite-ga on 24 Jul 2005 09:30 PDT

It's good that you've contacted the webmaster, but if possible, make
sure you send a lawyer's letter to a snail mail address. This has a
much greater impact than say an email sent by a non-lawyer.

Kriswrite

Many thanks for the quick answer.

I suppose one issue would be whether the offending website could be
hailed into a US court or subject to a US judgment.  I imagine that
would depend in part on the extent to which the New Zealand website
does business in or has other significant contacts with the state in
which your company is located or in which you might sue.  (As
kriswrite noted, and as the disclaimer below reiterates, this is not
intended to substitute for professional legal advice.)

I work with a guy who had a similar problem.  He changed the web pages
to generate dynamically and therefore the the copy-cats couldn't link
to his images directly.

I'm not sure how it works but the rendered pages would look identical
but the source html for the image links would be different every time.

The guy seeded his web site with random images to thwart them further.
The copy-cats kept getting random images and eventually stopped
linking directly from his site.

Let's start at the beginning.  If you find content on a New Zealand
web site that is taken from an American web site, here are the issues:

1.  Is the content that has been appropriated protectable under New
Zealand copyright law?  For example, if New Zealand law says that all
pictures of Marilyn Monroe are not protectable in copyright, then even
if they have appropriated images from, say, the US where they are
protectable, you have no cause of action against the New Zealand
infringer.

2.  IF the New Zealand infringer has sufficient minimum contacts with
the United States such that a court could find he has purposefully
availed himself of the benefits and privileges of doing business in
the US, you might be able to sue the New Zealand infringer in a US
federal court and base your claim on US copyright law.  On those
facts, you would have to prove that the misappropriated content is
protectable under US copyright law.

Note that the DMCA is a US law and has no extraterritorial effect.  If
you sent a DMCA notice under 17 USC section 512(c)(3)
(http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=17&sec=512)
to a New Zealand service provider, they could lawfully disregard it.

3.  Assume the infringer has no contacts with the US at all sufficient
for a court to sustain personal jurisdiction.  You would then need to
sue in New Zealand under New Zealand law, as has been pointed out. 
But there's an approach that no one has yet suggested:

I presume you can find out, by doing a WHOIS and finding out the IP
address for the servers on which the content sits and then doing a
lookup to see to whom that range of IP addresses has been allocated,
who the service provider is.  Once you find out where the infringing
files actually reside, why don?t you look up that web host's
acceptable use policy and see if it, as most do, forbids infringement
of third party intellectual property rights?   Sure, maybe this guy is
his own web host, but it's worth a shot.  If the host's AUP forbids 3P
IP violations, send them a letter and advise that they are hosting
infringing content.  Perhaps they will do the right thing, even
without the effect of the DMCA, and pull the content if you can prove
you own the copyrights and that they are infringing.

Another idea: you might try to find out who provides the pipe to the
host in New Zealand.  If that pipe is provided by a US company, then
that US company might take cognizance of the DMCA as a ?service
provider? and might respond to a 512(c)(3) notice.

Good luck!

If the web pages that are being infringed upon were your creation, you
can add a script that will not only stop the right-click, copy-save as
ability, but will give the message (which ever message you want) in a
popup box.  One such that a friend used states something like:  I am
flattered that you like my work, however the graphics and information
on this page are copyrighted.

Just a thought :)

Piney