1008.3 (D) Implied Nonexclusive License or Authorization
To assess the publication status of works placed online, it may be necessary to clarify the scope of any implied license purportedly granted by the copyright owner of those works. Courts have found that an implied, nonexclusive license or authorization may exist where the circumstances and the parties’ conduct reflected their intent or understanding that the work would be used for a specific purpose.
Courts have considered a wide variety of factors in determining whether a nonexclusive, implied license may exist. In some cases, the grant of a license may be implied by objective conduct that “supports a finding that an implied license existed.” Effects Associates, Inc. v. Cohen, 908 F.2d 555, 558 n.8 (9th Cir. 1990) (finding an implied license where the author created special effects for a horror movie and stated that the footage would be used for this purpose in both a written agreement and in its application to register the footage). In other cases, a license may be implied by the totality of the parties’ conduct. See, e.g., Falcon Enterprises, Inc. v. Publishers Service, Inc., 438 Fed. App’x. 579, 581 (9th Cir. 2011) (holding that the parties’ conduct demonstrated the existence of an ongoing nonexclusive, implied license where the plaintiff received a fee each time he sent copyrighted images to the publisher for publication over a period of several years). However, express or explicit limits on use may supersede an implied license, particularly if the copyright owner conveys those limits before the work is delivered to the licensee. See Johnson v. Jones, 149 F.3d 494, 500-501 (6th Cir. 1998) (finding no implied license where architect presented the client with proposed contracts containing an express provision stating that the drawings could not be used without his agreement or without appropriate compensation).
A variety of factors may be relevant in determining whether a copyright owner published website content by impliedly authorizing users to make copies of that content. Examples of factors that may be considered include the following:
• Whether there are indications on the website or webpage relevant to the work indicating that the copyright owner intends for the work to be distributed to the user via download, saving, printing, or emailing, such as the presence of a “download,” “save,” or “email” button for a particular work.
• Whether the copyright owner expressly reserved copyright rights in the work or explicitly prohibited the reproduction or distribution of the work in whole or in part.
• Whether the copyright owner employed barriers to the reproduction or distribution of the work, such as technological measures that disable or impair a web browser’s print, copy, and/or save capabilities.
• Whether the copyright owner permitted the work to be streamed or displayed, but did not expressly permit the work to be copied or downloaded.