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Suppose tht there is a website that allows users to create musical diagrams (sheet music). It is owned and operated by a person O.

Suppose the website allows users to create and share sheet music. All of the website is completely free (no registration fees and no paid features). However O has mentioned in the footer of the page that "The use of the website is not permitted for commercial purposes".

Recently O has become aware of a published book that has used diagrams made by the site's online editor, without consulting O first. Does this constitute a breach of the website terms and conditions? Is O entitled to some kind of compensation?

For info, the diagrams themselves use open source fonts for the notation of the musical symbols, and the rest is just standard sheet music. However O has a special style of presenting those diagrams on the website, which is (just) composed of a small graphical feature like a bolded line or a different coloured note symbol.

I think that because the diagram was created by the user on a free website, the user has the intellectual copyright to those diagrams. However, he created them using this website where O explicitly said that "The use of the website is not for commercial purposes". And yet the diagrams appeared in a commercially released book.

What are the legal aspects of this? What rights would O have in such a situation?

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    That one liner foot note is surely not explicit enough - you need a Terms of Service (ToS) which spells out what is ok. If you want attribution, watermark it like e.g. Google maps does and commercial users can pay to remove it, describe its display requirement in your ToS. People who crop out the watermark in a publication are much more actively violating your ToS. Oct 28 at 21:58
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    @LukeBriggs Are you sure about that? By default, copyright is restrictive, not permissive - in order to make a derivative work, you need a license from the copyright owner. Wouldn't they have to show that their usage was allowed? (This is a good example of why using a proper software license is a good idea, though.)
    – nick012000
    Oct 29 at 13:06
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    Not legal advice, but if you decide there isn't a legal avenue worth pursuing, it could still be reasonable to contact them and ask for an acknowledgement. They'd be under no obligation, but they might be happy to credit your work on the tool.
    – Bobson
    Oct 29 at 13:15
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    Agree with @nick012000, the lack of a license may mean that no rights have been granted, not that no rights have been reserved. See this related question which suggests that publicly available code with no accompanying license cannot be used, modified, or shared for any purpose: opensource.stackexchange.com/questions/1720/… Oct 29 at 16:35
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    I'd go back to the lawyer that wrote your TOS and ask. Because if they didn't cover this in the TOS, then you didn't understand each other. Oct 29 at 18:22
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You would first have to find out if publishing a book was "for commercial purposes". I can write a book and publish it as a hobby.

Next you check if there is any copyright infringement. It doesn't sound like there is. Using your website as a tool to create these diagrams doesn't give you copyright unless the result contains your own copyrighted work.

So at best there is a violation of your terms and conditions for your website. You can sue about that, but might have to specify damages. If you allow commercial use say for a fee of $1,000, that would give you grounds to claim damages. Or if someone used your website so excessively that it costs you money, that would be damages.

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    And then there's a question of whether a note in the footer even establishes terms and conditions. It doesn't sound like there is any access control to limit usage of the site, so the user hasn't bypassed any measures.
    – Ben Voigt
    Oct 28 at 21:22
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    There may be copyright infringement. There is copyright in the work itself (lasts for seventy years beyond the death of the composer) and also, separately in the typographical arrangement (lasts for 25 years from publication). OP does not claim copyright in the music, obviously, but could possibly claim copyright on the typography his tool has created. "Possibly" because it's obviously automatically created. Oct 29 at 6:29
  • @AndrewLeach If his tool uses a specific "font" he created for the purposes of his program, he'd have rights to control its use.
    – nick012000
    Oct 29 at 13:04
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    @nick012000 I think that's what I said. Note that in the UK, while fonts are copyright and copying them is regulated, their use is allowed in law (CDPA s54(1)). Once they have been used to create a particular typographical arrangement, that arrangement is the copyright of whoever created it (not the font designer). Oct 29 at 14:25
  • Commercial use/purpose is sufficiently vague that it should have a clear, explicit definition, as it does in the Creative Commons licence which defines commercial uses as "primarily intended for or directed toward commercial advantage or monetary compensation" (note that educational uses might have a commercial purpose, for example). You may have a different definition.
    – Stuart F
    Oct 30 at 19:44
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Consider the following two usage scenarios:

  1. Someone uses a web-based tool to produce a graphic layout that they end up selling.

  2. Someone develops a web site that accepts input from paying clients, processes it into the form required by some other web-based tool, uses that tool to produce graphic layouts, and delivers those layouts to the paying clients.

Absent more detailed licensing terms, I think "not for commercial use" would imply a desire to prohibit the second usage scenario above, but likely not the first. Suing anyone for breach of license would require showing that they could not have reasonably interpreted the license as authorizing their actions, and I would not regard as unreasonable someone's interpretation that the license was only intended to forbid the second scenario above (or others that were more like it than like the first).

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