Dear Rich: I am a self-employed career coach who owns and maintains her own business web site. All of the copy on the site was written by me and has been painstakingly crafted by me over the past four years. From it I have garnered numerous new clients and many comment that it was the content of my site that drew them in. Last November I hired a company to perform SEO services on the site in order to improve its visibility on search engines. I signed a contract with them, committing to an $8,000 expenditure in order to receive guaranteed search results on the major search engines. Most of the contracted services pertain to meta tags, keyword optimization, indexing and back links. The contract explicitly states that the SEO company will be making recommendations to me for improvement of my rankings, and I am obligated to make those changes. No problem so far. They had not recommended any necessary changes so I believed all was well, and expected that when/if changes needed to be made they would let me know.
Yesterday I noticed that the copy on my web site had been dramatically, horribly altered. Everything I wrote for the site is gone, replaced by poorly written text, bad grammar, typos and flat-out inaccuracies. For example, I charge a fee for an Introductory Session; yesterday I noticed the word FREE had replaced my fee on numerous pages. And this was the tip of the iceberg as it became clear that all of the copy on my site had been replaced by embarrassingly bad writing. This was a heartbreak. I was never informed that my copy would be changed, I never authorized the editing of my copy, nor did anyone at the SEO company communicate that it had made the changes. I only learned of this by accident when visiting my site yesterday. It appears that this abomination of my copy -- and my professional image -- has appeared on my site for a couple of weeks. (Thankfully, only a couple of weeks). I spent several hours yesterday repairing the damage they had done. Based on the terms of the contract, I can't sue the SEO company for non-performance of their SEO duties. Can I file suit for copyright infringement? Before we bring in the lawyers, let's consider some practical issues:
Did you pay the whole sum up front? If not, obviously, you should hold off on making any additional payments until this matter is sorted properly. Did you pay with a credit card; if so check with the provider to determine whether you can dispute the payment. Ditto for PayPal.
Are you sure that your contract states that you are obligated to make the recommended changes? That seems a little odd ... agreeing ahead of time to make unknown changes. Are you sure there isn't some sort of approval process? If not, your situation becomes a bit murky, especially because you apparently gave them access to your site in order to modify it.
Perhaps you can claim non-performance of duties. Just because the company mucked about in your website doesn't mean they performed their services. From your description of what happened, it sounds as if the company breached the contract by going beyond standard SEO techniques and interfering directly with your marketing. The fee-to-free fiasco seems particularly irksome.
Where is the company located and what does the agreement say about disputes? If, by some miracle, the company is located in your home state, that will make it easier to sue in small claims court and recover. Does the agreement have a jurisdiction provision explaining where you have to sue, or an attorney fee provision guaranteeing the winning party their attorney fees?
If you gave the SEO company the keys to your site ... In case you haven't done so already, it's time to change the access password in order to prevent any further setbacks.
Have you informed the company of your displeasure? After you've reviewed all your options above, you should send a notice (see if the contract has notice requirements) informing the company of your displeasure and letting them know that you consider them in breach and -- for what it's worth -- that you want a full refund. This is sometimes a prerequisite for small claims court or credit card claims.
Can you sue for copyright infringement? Copyright infringement is the unauthorized use or modification of a work. If you gave the company access to your site and permission to modify, your problem will more likely be considered a contractual dispute, rather than a copyright claim.
Dear Rich: I’m planning to create an arrangement of Elvis Presley tunes for string quartet. Do I need permission to just use these arrangements for my own string quartet? What if I want to sell the arrangements to others? We love your idea (and others like it, too). You're probably okay arranging and performing a few Elvis songs for private performances. That's because the owners of the music are unlikely to notice (or to care if they do find out). If you plan to perform the music, publicly, the venue would need to pay for public performance royalties (sidebar on right under U.S. copyright law). If you were to record and release the music, you'd need to pay mechanical royalties. What if you want to do more? You will need permission if you plan on promoting sales or distribution of sheet music arrangements to other quartets (or seek to stop others who copied your arrangement). That's because the making of sheet music requires authorization whether it is a straight reproduction of the sheet music or an “arrangement” or “orchestration” that qualifies as a derivative work. In other words, you can't reproduce the underlying work -- for example, Heartbreak Hotel -- in a printed arrangement, without the publisher's permission. You can usually find the music publisher’s contact information at the following sites:
Harry Fox, BMI, ASCAP, or Limelight.
Also, the National Association for Music Education website has an example of a request form for permission to create musical arrangements.
Dear Rich: I'm curious how I can copyright a song where I used an existing song and while I changed most of the words I did not change the music. The meaning is entirely different but I'm sure I can't legally record the song without consequences. Based on your web article "How to Obtain Sample Clearance" it sounds like there is no chance for me to legally sell my version of the song if the copyright owner or artist/songwriter doesn't grant permission. The chances of me making a lot of money are slim but I'm happy to pay some type of royalty or percentage of revenue in the event it is successful. Sometimes there's gold in those changed lyrics. When Ken Darby changed the lyrics to Aura Lee (a public domain song), the result -- Love Me Tender -- became a monster hit for Elvis Presley. If you're wondering why that song is credited to Presley and Vera Matson, Darby's wife, that's because Presley demanded co-writing credit for many songs he recorded regardless of whether he actually wrote them. When asked why Darby credited his wife instead of himself, he supposedly replied, "Because she didn't write it either." Right, you had a question. You asked how you can copyright a pre-existing song whose lyrics you have modified. We suppose you could file a Form CO, claim authorship of the lyrics and then, in section 4 (Limitation of Copyright), state that you are not claiming any copyright to the pre-existing material (name the song and provide its copyright registration number). Doing that won't really gain much for you because you still can't perform or record the song without the permission of the underlying song owners. So, we'd recommend scratching that strategy. How can you record the modified song without being sued? We think that's the real question you're asking. Under copyright law, you need to seek permission from the song owner to record it if you materially alter the song. We doubt whether a publisher is going to grant permission to modify lyrics to a song, although it's always possible. (By the way, none of this has anything to do with sample clearance.) Of course, if you hadn't materially altered the lyrics, you wouldn't need to ask for permission, you could simply pay a fee to a service such as Songfile (Harry Fox) or Limelight, and obtain a compulsory license. Knowing this, some musicians use a halfway measure -- they pay for the compulsory license and use their modified version of the song. Even though that doesn't meet the standards of copyright law, the thinking is that by paying for the license, the musician demonstrates good faith and hopefully, the song owner won't care to hassle those who pay for licenses.
Dear Rich: I saw your entry on "Using Movie Stills at a Website." What if I draw a picture from the scene? Is that still copyright infringement? Would the quality of reproduction also have a factor (i.e. a very realistic recreation of the still vs. something more paint-like)? As we mentioned last February, unauthorized reproductions are infringements unless excused by a defense such as fair use. The same rules apply for unauthorized derivative works and these can trigger the same legal responses as straight infringements (as Shepard Fairey learned when he created his artsy Obama Hope imagery -- which has triggered its own derivative infringements). You don't protect yourself by making a more "artistic" derivation. It's infringement as long as a lay observer believes that the underlying (or preexisting) work has been copied (for example, as in the example, above). In any case, this legal mumbo-jumbo we're spouting is ignored by millions of people on the web every day. So, the real question is whether your creation of an unauthorized derivative work based on a movie still will make somebody so mad that they'll come after you, take your home, car and new Mac laptop. As usual, we couldn't tell you ... though as we've mentioned before, you're likely to be better off if you use smaller images (thumbnails are best), you don't poach from popular licensing sites such as Getty Images (that regularly troll for their digital fingerprints), and you don't use the image more than once, or for commercial purposes such as merchandise. And of course, the popularity of your site may also make you a more likely target.
