Copyright 101

Raphael S. Moore, legal counsel for VIN, answers questions about copyright law in the United States.

Question: If I purchase a clinic, am I liable for any copyright infringement on the existing website?

Answer: Yes. "Innocent infringement" does not remove liability.

Q: What is my liability for copyright infringement?

A: Depending on the severity of the infringement, the length of time and who the original copyright owner was/is, you can be liable to pay the actual dollar amount of damages (what is the true copyright holder's loss?); the profits you made (have you been using the material to attract customers?); penalties allowed by law (they can range from a few hundred to thousands of dollars per work infringed); and the attorney fees and costs of the other side. A court also can stop you from using the material, and in extreme cases, the infringer can be prosecuted criminally.

Q: Has this infringement ever happened with a veterinary practice website?

A: Yes, there have been many instances where veterinarians have been on the receiving end of letters accusing them of copyright infringement due to material found on their websites. Some cases were quickly resolved by removing the material. In other cases, the true author of the work demanded thousands of dollars and attorney fees. Many of these situations were “innocent infringement” cases where the veterinarian simply purchased a clinic without knowing the true source of the website material. Some cases involved professional Web designers who were unscrupulous. In one case, it was the veterinarian’s teen-age nephew who “borrowed” material from other sites. Regardless of the cause, the veterinarian was legally required to remove the material and/or pay to settle the matter.

Q: Can I revise someone else's material, such as a surgical consent or employment form, and use it on my website?

A: Not unless you receive consent to use it.

Q: What do I do if someone revises my material without my consent?

A: Start by sending them a written request to remove it. It could be a simple letter written by you with no threats, all the way to a "huff and puff" letter written by your attorney. The request could demand removal alone, or require payment of damages, costs, etc. If you write one letter on your own and it does nothing, the second letter should be more forceful or it could come from your attorney. Be careful how you word the letter, however, as what you put in writing can be turned against you.

Q: May I use client-education information from a book or other website as long as I give credit?

A: Not unless you receive permission.

Q: If I ask to use a photo or text and receive no reply, can I use it because I wasn't told "no"?

A: No.

Q: May I use photos of my clients and patients?

A: It depends. If you have a famous patient, such as an actor dog in the movies who has an agent, the rules are different, but in general, there is no copyright in the face or form of a person, and the copyright in the actual image of anything is held by the photographer. People also have no right to privacy in a public place, and in a private space there is also no privacy right unless that is the normal expectation (i.e., bathrooms). As long as the owner of the clinic allows photos to be taken, you can take photos without consent. But your veterinary practice act explicitly or implicitly holds the identity of your clients and patients confidential, so if you use a photo in a way that the subject is identifiable, you would be violating your licensing regulations.

Also, if you use the photo for commercial purposes (advertising or selling services, for instance), you would need their release or you could be subject to damage claims and fines, depending on your state's law. If you are using the photos for education and research purposes only, there is less of a concern. But to reduce risks and give you the most flexibility, add release language in your intake form as part of your boilerplate.

Q: Can I use photos of my employees without their explicit permission?

A: Where there is a legitimate business purpose, such as for badges or security purposes, yes. But if you are doing it for promotional purposes, no. Some states regulate this in their labor code. But even where they do not, you are opening yourself up to a myriad of claims, ranging from damages to hostile work environment to unlawful termination after the employee leaves. Don’t do it.

Q: How do I copyright my material?

A: You don't need to do anything other than produce an original creative work and put it into some physical format. There is no requirement to include a copyright notice, date or the "circle c" symbol. It is a myth that if you don't "copyright" it, you somehow have no copyright in the work. While there were some other requirements, those went away in 1978. You will have to register the work with the U.S Copyright Office, however, if you want to begin a lawsuit for infringement or get the benefit of specific types of damages. The fee to register online is $35.