I am launching a web site that allows users to supply content (user-created contents) as well as fan art of existing copyrighted/trademarked characters. I am looking for help in protecting the site from being sued.
Lawsuit / Dispute Attorney
I am sure there are lawyers on this site who can help you.
I suggest you use the "Find a Lawyer" feature on AVVO for someone in your area who is knowledgeable about copyright infringement, the DMCA, and Section 230 of the Communications Decency Act, among other things. Attorneys in this area also can help with the creation of appropriate disclaimers and waivers of liability.
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Criminal Defense Attorney
Absolutely. Although my firm has done very few of these, there are other firms that have an emphasis in this area. Good luck.
The response above is not intended as legal advice since it’s impracticable to provide thorough, accurate advice based upon the query without additional details. It is highly recommended that one should seek advice from a criminal defense attorney licensed in your jurisdiction by setting up a confidential meeting. Moreover, this response does not constitute the creation of an attorney-client relationship since this message is not a confidential communication because it was posted on a public website, thereby publicly disclosing the information, which is another reason to setup a confidential meeting with an attorney.
We handle this type of work regularly, both in terms of website disclosures and advising clients.
This answer is provided for informational purposes only, does not create an attorney-client relationship, and is not to be relied upon as legal advice or applied to specific situations. Legal advice is provided only upon execution of a written retainer agreement and after a comprehensive consultation in which all relevant facts are discussed and reviewed.
Are You Planning on Opening a New E-Commerce Website?
There is much you need to know as you begin your new business. I suggest you do not attempt to write your own legal policies. This is not where your training and background lie, and though you are probably as smart as an attorney, you do not have their experience.
Below is a checklist for legal issues I use for new e-commerce clients.
1. Business Model – Is your idea viable as a web based business?
2. Business entity - Are you going to be a C corp, a sub-S, an LLC or a sole proprietorship?
3. Terms of Service - This is your contract with your visitors and is the most important item for any e-commerce site. A little work here brings big dividends in the future.
5. FTC guidelines - The FTC has been regulating business advertising for almost a century. All of their advertising guidelines apply to e-commerce sites.
6. Domain Name issues? Is your name available. Can you create a Trademark?
7. Trademark - Do you have a brand name free from conflict? Should you start with just common law rights? Should you register the mark, and when?
8. Copyright - If it is on the web, it already belongs to somebody. Did you buy a license for the images you are using?
9. Do you need a DMCA policy?
10. Web Site security issues?
11. Do you need and have an EIN? You can get that for free.
12. Do you need an arbitration clause?
13. Do you have employees? - If so you need written policies regarding their authority and use of the internet.
14. Do you know the difference between a "browser wrap" and a "click wrap" and which do you need?
15. Are you abiding by the Child's Online Privacy Protection Act (COPPA)rules?
When I discuss this list with clients other issues arise. Finally, I always discuss with my clients their need for good accounting services. An accountant's advice as you start up can save you many dollars in tax that you might not save if you wait to speak to an accountant until your first tax return is due.
I hope this list will give you pause to think about those issues for which you might need to seek professional advice.
You may want to discuss your situation with a lawyer in more detail. Most lawyers on Avvo, including myself, offer a free phone consultation.
Andrew M. Jaffe
Attorney at Law
Practice Limited to E-Commerce and Internet Law
This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.
Financial Markets and Services Attorney
There are a number of legal requirements that would need to be followed for you to safely fall under the Safe Harbor provisions of the DMCA. In order to be effectively within the safe harbor you will need a DMCA takedown policy or mechanism which can be as simple as an email address to notify your site. Also, if you want to stay within the safe harbor, you should not actively promote copyright-infringing fan art as this could open you up to vicarious liability claims. Generally, where you are not actively promoting the use of infringing content you fall within such a safe harbor.
The takedown mechanism must be effective. A quick look at, for example, the Kim Dotcom Megaupload case might be informative as to the proper method for taking down infringing material.
Generally, however, in a limited scheme where your website provides user uploaded content, does not actively promote the posting of infringing content, does not retain editorial control over the content (or at least neutral editorial control - i.e. no nudity) and has an effective takedown mechanism then you will likely fall within the safe harbor.
I would be happy to help. Good luck!
The information and materials are provided for general informational, educational and theoretical, purposes only and is not intended to be legal advice and may not be relied on as legal advice and does not create an attorney-client relationship. Bottom line is hire an attorney.
Gaming Law Attorney
Yes, there are several lawyers such as myself who have extensive experience with user-generated content, fan-art, fan-fiction, and dealing with uses of entertainment industry copyrights and trademarks.
I focus my practice on (video) gaming industry, casino gambling, and complex internet law issues, electronic free speech, entertainment law, copyright and trademark law, and computer fraud. I primarily represent game developers and founders of emergent internet technologies. The author is a Maryland attorney; however no answer given on Avvo is intended as legal advice or intended to create an attorney-client relationship.
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