Use on Foreign Web Site Is Not U.S. 'Publication'

In a ruling of first impression, the U.S. District Court for the District of Delaware decided that photographs published on a foreign Web site weren't simultaneously “published” in the United States.

The photographer, the court said, wasn't, therefore, required to register the photographs with the U.S. Copyright Office prior to filing an infringement suit. Moberg v. 33T LLC, 08-625(NLH)(JS).

The photographs “Urban Gregorian I-IX” by Swedish resident Hakan Moberg had been published on the German Web site blaugallery.com in 2004. The photographs were subsequently displayed without permission by U.S.-based Web site companies that sold Web design templates.

District Judge Noel L. Hillman, sitting by designation in Delaware from the District of New Jersey, noted of Moberg's infringement suit against the U.S. Web sites:

First, the proposition that publishing a work on a [W]eb site automatically, instantaneously, and simultaneously causes that work to be published everywhere in the world, so that the copyright holder is subjected to the formalities of the copyright laws of every country which has such laws is contrary to the purpose of the [international] Berne Convention. ' To hold otherwise would require an artist to survey all the copyright laws throughout the world, determine what requirements exist as preconditions to suits in those countries should one of its citizens infringe on the artist's rights, and comply with those formalities, all prior to posting any copyrighted image on the Internet. The Berne Convention was formed, in part, to prevent exactly this result.

The district judge continued:

Second, also based on the purpose of the Convention to constitute 'a Union for the protection of the rights of authors in their literary and artistic works,' Berne Convention art. 1, the transformation of plaintiff's photographs into United States works simply by posting them on the Internet would allow American citizens to infringe on foreign copyrighted works without fear of legal retribution, since the majority of foreign works are never registered in America. While not all Americans would exploit such an advantage, the misappropriation of intellectual property remains a significant problem and there is no principled reason why domestic users should be able to act with such impunity.

In a ruling of first impression, the U.S. District Court for the District of Delaware decided that photographs published on a foreign Web site weren't simultaneously “published” in the United States.

The photographer, the court said, wasn't, therefore, required to register the photographs with the U.S. Copyright Office prior to filing an infringement suit. Moberg v. 33T LLC, 08-625(NLH)(JS).

The photographs “Urban Gregorian I-IX” by Swedish resident Hakan Moberg had been published on the German Web site blaugallery.com in 2004. The photographs were subsequently displayed without permission by U.S.-based Web site companies that sold Web design templates.

District Judge Noel L. Hillman, sitting by designation in Delaware from the District of New Jersey, noted of Moberg's infringement suit against the U.S. Web sites:

First, the proposition that publishing a work on a [W]eb site automatically, instantaneously, and simultaneously causes that work to be published everywhere in the world, so that the copyright holder is subjected to the formalities of the copyright laws of every country which has such laws is contrary to the purpose of the [international] Berne Convention. ' To hold otherwise would require an artist to survey all the copyright laws throughout the world, determine what requirements exist as preconditions to suits in those countries should one of its citizens infringe on the artist's rights, and comply with those formalities, all prior to posting any copyrighted image on the Internet. The Berne Convention was formed, in part, to prevent exactly this result.

The district judge continued:

Second, also based on the purpose of the Convention to constitute 'a Union for the protection of the rights of authors in their literary and artistic works,' Berne Convention art. 1, the transformation of plaintiff's photographs into United States works simply by posting them on the Internet would allow American citizens to infringe on foreign copyrighted works without fear of legal retribution, since the majority of foreign works are never registered in America. While not all Americans would exploit such an advantage, the misappropriation of intellectual property remains a significant problem and there is no principled reason why domestic users should be able to act with such impunity.