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FreeVintagePosters.com and the DMCA Myth

Orangenius

Image-based sites, like FreeVintagePosters.com are regularly violating copyrights but no one seems to care.

Online piracy is not a new topic. We all know that the internet is a haven for piracy of intellectual property. BitTorrent directories and Peer-to-Peer networks provide users with the latest Oscar-winning movies, or the music from the most popular artists around the world, often for free and without a legal right or distribution license to do so. These sharing sites actively flaunt copyright law, hiding servers in foreign countries that care little about protecting intellectual property from outside their borders. Anti-piracy efforts have focused on prosecuting these high-volume infringers, which has led to some major victories such as the Pirate Bay case, or not so successful actions like the popular movie site, Popcorn Time.

 

copyright infringement
You’ve probably seen this 1986 poster by Alexandre Steinlen scores of times.

However, where there is only a few dozen of this big movie and music sites, there are thousands of smaller sites that focus on providing various types of imagery that are also hosting infringing material. Some of the bigger players such as Etsy might get some attention but sites like FreeVintagePosters.com, and others seem to be free of controversy. In fact, well know content creators like Apartment Therapy and Vice write feature articles that legitimize their actions.

 

This is not to say that these serial infringers are malicious or violating the law intentionally. Often, the sites’ owners merely misunderstand copyright law and believe that their actions are legal. Yet they are still infringing and could be held responsible for those infringements by the copyright holders. What is keeping the copyright holders from asserting their rights? Is it the high costs of litigation, an uninformed public, an out-of-date copyright system, or some other systemic problem that allows these serial infringers to operate and thrive without hindrance.

Free Vintage Posters: A case study

To explore these questions, let’s analyze a typical image-based site. At FreeVintagePosters.com, users can freely download high-resolution vintage posters from all over the world, such as works from classic movies, travel posters, or product advertisements, and more. From the user’s perspective, it is a fantastic concept. Vintage posters have such an amalgam of styles, like Art Deco, Art Nouveau, Mid-Century Modern, or Bauhaus, that almost anyone who loves art can find a poster that fits their personal aesthetic. Just download the free poster and upload it to one of the many one-stop shops that will print and frame it. In less than a week, you will have a beautiful framed poster in your favorite style to spruce up the wall behind your sofa.

You can imagine FreeVintagePosters.com owners thinking up the idea for their poster site and declaring, “Vintage posters are old so they must be fine to distribute.” Unfortunately, not all old posters are copyright-free so let’s take a look at the rules of copyright duration and how we might determine whether an older works fall under copyright.

FreeVintagePosters.com Has Copyright Duration All Wrong

The idea that vintage posters are old and therefore probably okay to distribute is a misinterpretation of the law and only partially true. Copyright law protects original works, fixed in a tangible medium, and once those works have been created, copyright protection is assigned to the work over a certain duration of time. Creative works published prior to 1923 no longer hold a copyright due to the limited term for copyright protection. Meaning that pre-1923 works have entered the public domain, so they are copyright free and can be used without constraint. So any works that Free Vintage Posters.com has that were pre-1923 are non-infringing.

All U.S. works created on or after March 1, 1989, hold a copyright automatically as this was a requirement when the U.S. became a member of the Berne Convention, the international copyright treaty. Given that the posters are “vintage,” no posters on the site were created after March 1, 1989, and so, this is not an issue. line Piracy

Determining whether copyright exists from posters created between 1923 and 1989 can be trickier to determine given changes to copyright laws over the years. Copyright protection in the U.S. used to require registration with the United States Copyright Office and that each work displayed a copyright notice. (i.e., “© 1956. Metro Goldwyn Mayer. All rights reserved.”)

Copyright terms were also shorter, although copyright could be extended a single time with proper registration. The following is a flowchart showing the various steps in determining whether a work is still protected.

Unfortunately, records at the Copyright Office are not all digitized, and since the Copyright database does not provide images with the results of a search, it can be hard to know if the result you are viewing is the right work. (Yes, this is true, the Copyright Office does not provide the images, writings, music or any other piece of information other than the descriptive text. Our tax dollars at work!) Although to be fair, as we mentioned in our article on the Copyright Office modernization and the push to make the Register of Copyrights a presidential appointee, things may be changing. Today, however, it can be difficult to determine the copyright status of earlier works, especially those created before 1960 or so.

However, given the content on FreeVintagePosters.com, which are often the copyright-protected products of corporations still in business today, determining status through a copyright search may be easier. Movie posters are a great example because one thing we do know is that movie posters always had a copyright notice.

The poster below is a classic poster from the site, the Attack of the 50 Ft. Woman created in 1958. This is a popular, iconic poster. According to the Center for the Study of the Public Domain at Duke University, this work, under current copyright law, will retain copyright protection until 2054 and therefore, FreevIntagePosters.com sale of the work on their site would amount to copyright infringement. There are many other vintage posters from that era on FreeVintagePosters.com’s site that are infringing, as well.

freevintageposters.com
“The Attack of the 50 Ft. Woman” is a popular vintage poster.

Misinterpreting Copyright Law and Fair Use

For the Attack of the 50 ft. Woman to be considered non-infringing, the use of the work must fall under one of the fair use exceptions. According to FreeVintagePosters.com’s site disclaimer, the owners believe they are operating within the law:

Images uploaded are believed to be posted within our rights according to the U.S. Copyright Fair Use Act (title 17, U.S. Code.)  . . . While some of the posters on this site are in the public domain, many others are not. We do not guarantee that all the vintage artworks are in the public domain. If you are using these artworks for commercial purposes, please do your own research to determine the rights associated with each piece. FreeVintagePosters.com is for educational, research, and entertainment purposes only.

At first glance, the disclaimer seems like it covers all the basics. They freely admit that some of the posters may be protected by copyright law, but the site is not infringing because these posters are being provided as an educational tool only, falling within educational exceptions of the Fair Use statute.

As you may have guessed already, this entire line of reasoning has no legal merit. The disclaimer misinterprets copyright law. If you’re a long-time reader of Art Law Journal, you have probably read many articles about fair use and the exceptions under which a copyrighted work can be used without permission.

The first issue is that while there is a limitation to the exclusive rights of copyright known as “fair use,” there is no Fair Use Act.  The Freedom and Innovation Revitalizing United States Entrepreneurship Act of 2007 (FAIR USE Act) was only a proposed amendment by Representative Rick Boucher (D-VA). It never made it past the House Subcommittee on Courts, the Internet, and Intellectual Property. It was never signed into law.

And while there is an educational fair use exception in the Copyright Act, the site misinterprets its meaning. Copyright law places a high value on educational uses. Some parts of copyright law provide explicit exceptions in favor of educational uses, such as those found in Section 110 of the Copyright Act, and other educational uses very often fall into the general “fair use” category, but those circumstances are limited, and the law is not nearly as expansive as FreeVintagePosters.com would appear to believe.

A teacher or a student would not be infringing if they are using the work for preparing or giving educational instruction that illustrates a point about the subject being taught. Even this exception has limits. A teacher might be able to copy an article or a book chapter for a class topic and dispense the copies to students but, the teacher cannot copy the whole book.

The TEACH Act adds additional exemptions for face-to-face classroom teaching, particularly when the institution is non-profit. The exception might include playing movies or music, showing students images, or displaying original artworks. If we’re analyzing the disclaimer, a fair use exception may exist in a situation where a teacher uses the works on the site for educational purposes.

In either case, these exceptions do not apply to freevintageposters.com merely because they are telling the audience that the site’s content is for educational purposes only. They are not an educational institution and cannot override the law with a disclaimer.

FreeVintagePosters.com Can’t Hide Behind the DMCA

Another approach FreeVintagePosters.com uses to limit their liability is shielding itself behind the DMCA (Digital Millennium Copyright Act), which exempts online service providers (“OSPs” or sometimes “ISPs”) from liability for copyright infringement for content that is uploaded by users, over which the OSP has no control, provided it meets certain conditions and complies with certain requirements.

Copyright ActThe idea is simple. If an online service could be held liable for infringements committed by its users, then the legal exposure would be so extreme that nobody would ever operate such services for fear of being sued. We would arguably have no YouTube, no Instagram, no Flickr; the list can go on and on.

However, there are certain requirements that must be met to take advantage of this “safe harbor”, including, among others:

  1. The OSP must have no actual or constructive knowledge of infringing behavior;
  2. The OSP must receive no financial benefit directly attributable to the infringing activity; and
  3. When given a proper notice of infringing material being posted on its network, the OSP “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing.”

Strictly speaking, a detailed analysis is unnecessary because the safe harbor provisions apply only to material that is uploaded “at the direction of a user.” Here, there is nothing to suggest the content is uploaded by users – it is uploaded entirely by the operators of the site, rendering them ineligible for the protections afforded to compliant OSPs.

Even if the works had been uploaded by users, the site’s use of advertising (even though it does allow downloads of the posters for free) would likely be construed by a court as a direct financial benefit due to the infringing activity, for the purposes of the DMCA, although it is a harder determination to make when calculating monetary damages for an infringement because it is difficult to attribute a specific dollar amount to a particular infringing work.

Finally, the site does provide a takedown mechanism as required by the statute in the disclaimer:

“If you believe content appearing on FreeVintagePosters.com infringes on your copyright, please notify us at . . .,”

and then the site provides the required procedures for initiating a takedown. However, another requirement to receive safe harbor protection is that the site must have registered an agent to receive notifications of claimed infringement with the U.S. Copyright Office, which the site has not done. Click here for a DMCA Directory of Registered Agents.

So, the conclusion we must reach is that FreeVintagePosters.com is an infringing site, even though not all the works are infringing. And, without more information, it’s difficult to tell whether the company knows they are infringing protected works and tried to deflect this knowledge through their disclaimer; or, that due to their obvious lack of legal counsel, are misinterpreting copyright law and their potential legal risk.

Given either scenario, why haven’t copyright holders taken action to remove obviously infringing works or shut them down completely?

The Politics of Copyright Law

Why FreeVintagePosters.com is still able to operate seems odd given the site’s popularity. Alexa, the website ranking engine, ranks freevintageposters.com at 181,504 of all websites in the world. The site has been written up in some of the best tech journals. Such as Mashable, Lifehacker, Buzzfeed and Mental Floss, so there is a high likelihood that the copyright holders know that the site exists and that their works are being infringed.

Even stranger is the fact that the infringing posters, particularly any from movies, are likely to be eligible for statutory damages, which are available for works that are registered with the U.S. Copyright Office prior to an infringement (or within three months of publication). Since registration was required in 1958, to maintain copyright protection, the works must have been registered prior to this infringement or they would be in the public domain. Statutory damages awards between $750 – $30,000 per infringement, and up to $150,000 if the infringement is willful or intentional.

 

DMCA
“Absinthe Robette” is another popular poster from the early 1900s.

More importantly, in almost all statutory damage cases, reasonable legal fees are awarded to the prevailing party in an infringement lawsuit. So, we have a case of infringement that is almost certain to prevail giving the copyright holder an award of no less than $750 per infringement (probably in the low thousands here) and the reimbursement of the copyright holder’s legal fees. Why not assert their right?

 

Remember that the copyrighted content on this site is posters from major companies and media giants. These posters were works-made-for-hire, which means that the company that hired the artists to create the posters are the copyright holders, not the artist. So even though there could be a few thousand dollars in revenue, it is such a small sum that it probably isn’t worth the effort for these multi-billion dollar organizations, for which the creation of posters is not their primary business. Moreover, it’s not as if the companies are generating significant revenue from the sale of works. They may own the works and hold the copyrights, and in some cases when the potential revenue from an infringement is substantial or there is significant harm to the brand or property, then litigation may be necessary.

As popular as the site is, the works are still free to download. All the site’s revenue is generated from Google ads, which is probably not a large amount of revenue. If a media giant, like Warner Brothers, which holds the rights to Attack of the 50 Ft. Woman (and about 3500 other vintage movie posters), were to sue, freevintageposters.com would probably just disappear as they would not have the revenue necessary to pay off the infringements or hire legal counsel.

After all, they are not making the movies themselves available, which wold have far greater value. If an organization pirated the Attack of the 50 Ft. Woman movie and licensed it to local TV stations, we would probably see action on the part of the copyright holder but this infringement is merely the poster. On the other hand, if the copyright holder of these works were the artists, we would probably see a more aggressive defense of their copyrights or at the very least, a takedown request because the value to an individual artist is greater than that of the movie studio. It might be worth defending. 

____________

Infringements like this are commonplace as sites learn to navigate the loopholes surrounding copyright or discover the economic and political realities that make it difficult to sue despite being able to easily win. Most works are not registered leaving the copyright holder only able to receive actual damages, not statutory damages and legal fees, making lawsuits too expensive. Other sites known for having infringing works, like Etsy, are protected by the DMCA Safe Harbor. While Etsy may quickly remove infringing works upon request, they do not police their stores. The result is that an artist will request a takedown of an infringing work from an Etsy store only to find that the same work pops up in another Etsy store often run by the same person who infringed the work originally. It can be a never-ending battle and frustrating. 

Most of these issues exist merely because copyright law has not kept up with the digital age. As we have discussed in several articles, the Copyright Office is currently in a bit of turmoil with the replacement of the Librarian of Congress and the removal of Maria Pallante as Head of Copyrights. Maybe we’ll get lucky and things will change in the artist’s favor. For the immediate future, we’ll just have to live with it.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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