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July 2007
Supplement to Travel Trade

By Tom Ogg

During a NACTA seminar at sea aboard the Regent Seven Seas Mariner, a conversation evolved about what is copyrighted and what is not. I was shocked to find that many travel professionals had minimal understanding of copyright and trademark law. First, I must point out that I am not an attorney, nor is it my intention to offer legal advice.
If you find this topic interesting, I would suggest that you seek out an attorney in your state that specializes in copyright and trademark law to answer specific questions regarding this subject. This matter is important because it affects all of us in the travel industry, as we act as independent contractors for many companies that use both copyrighted content and registered trademarks.
Violation of copyright and trademark laws can lead to both civil and criminal litigation and prosecution. As an example, let’s say that an independent contractor for “A Big Agency” signs an independent contractor agreement that defines the use of the agency’s registered trademark, but then opens a bank account in “A Big Agency’s” name and starts depositing money into the account.
The agent may be guilty of fraud (against the consumer and against “A Big Agency”) and conversion (converting funds intended for “A Big Agency”). Fraud and conversion are criminal acts that would result in an investigation and prosecution by the state’s D.A.’s office. In the travel industry, fraud and conversion generally result in time spent behind bars. Of course, a person(s) convicted of fraud and conversion is also subject to civil litigation and when elements of fraud and/or conversion exist, treble damages are awarded, as well as punitive damages for harm done to the owner of the trademark or content. Punitive damages could be defined as the future loss of revenue caused by the fraud on the owner of the trademark. This is a very serious issue and one travel professionals need to thoroughly understand, as ignorance is not a platform for defense.
Copyright laws work somewhat differently, but intentionally violating someone’s copyrights of printed or digital material might well result in civil litigation to recover damages and if there are elements of fraud involved, criminal, as well. As an example, let’s say a travel professional purchases an e-book, reads it and then decides to resell the book on craigslist or Ebay. They discover strong demand for the book, so they decide to sell multiple copies of the book by simply copying the .pdf file several times.
This is clearly a violation of the author’s and publisher’s copyrights to the book and would result in an action to recover the lost revenue from the person that violated their copyrights. In the instance described above, the author and publisher would undoubtedly argue that the seller had criminal intent to defraud them and the people who purchased the book and might be awarded treble and punitive damages. Everything that is written either in print or digitally is copyrighted. If the writing has been officially copyrighted and displays the (, ( or ( symbols, the owners do not even have to prove damages in order to collect.

Here are some common questions and answers regarding this issue:

Q. Is content on the Internet copyrighted?
A. Yes, everything published on the Internet is subject to copyright laws and one cannot simply find an article that he or she would like to use, copy it and then paste it onto his or her Web site. This is considered plagiarism and a civil, but not a criminal, offense. The only way that you can use content is to obtain written approval from the person who has the copyrights.

Q. Isn’t content on the Internet “Public Domain” content and therefore available for use on any Web site?
A. While tons of Web sites offer public domain content, the offer is generally made with caveats that require certain actions by the publisher offering the content and the author of the content. Web sites, such as articles.GetaCoder.com, offer thousands of travel articles, but the signature of the author must be included when published.

Q. Can I just copy trade articles and publish them on my Web site?
A. Travel Trade articles fall under the same copyright laws as all other printed material. The best way to pass the information on is to summarize the article and then offer a link to the entire article as it resides on the publication’s Web site.

Q. As an independent contractor for a principal, can I open a bank account using a registered, trademarked name if I modify the name to reflect my unique relationship?
A. Absolutely not! Say you belong to a group that has a registered trade name and mark. You cannot simply decide to start a business using the trade name and/or mark, open a bank account like you were part of the organization and collect money using the name. This kind of activity may be viewed as fraud and conversion against the owner of the trade name and mark and fraud against consumers who believe that they are dealing with the owner of the trade name and mark. Such a situation could be criminal and would certainly qualify for treble and punitive damages in a civil suit.
Be smart. Before you copy, use or act upon any copyrighted, registered or trademarked content, ask for permission first. Get it in writing and make sure that you have received permission from all parties interested in the content that you are using. Simply assuming that you can use the content can lead to difficult situations.

For more information, visit www.HomeBasedTravelAffiliate.com or
www.TravelAffiliateResourceCenter.com.