When you upload pictures to a website, you might click through some terms of use…Did you just transfer ownership of the copyright in those pictures?

In a recent US case (Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., No. 12-2102, Fourth Circuit Court of Appeals) the court dealt with a copyright infringement claim over photos uploaded to a real estate website. Users were required to click-through the website terms of use (TOU) prior to uploading, and those terms clearly indicated that copyright in the images was transferred to the website owner.

In the course of the infringement lawsuit, this was challenged, so the court had to squarely address the question of whether copyright can be validly transferred via online terms. ”The issue we must yet resolve,” said the Court, “is whether a subscriber, who ‘clicks yes’ in response to MRIS’s electronic TOU prior to uploading copyrighted photographs, has signed a written transfer of the exclusive rights of copyright ownership in those photographs consistent with” the Copyrght Act.

In Canada, the equivalent section of the Act says “The owner of the copyright in any work may assign the right, either wholly or partially …but no assignment or grant is valid unless it is in writing signed by the owner of the right…”.

The Court in the Metropolitan Regional case decided that yes, an electronic agreement in this case was effective to transfer copyright for the purposes of the Copyright Act.