Thursday, April 24, 2008

Intellectual Property Estates

I frequently get asked if I know any lawyers who can write a will for writers. That's because writers, like all visual artists, have an interest in seeing their intellectual property properly disposed of after death. It is not an area of the law in which I practice. Wills and trusts is an ancient and archaic area of the law and was my worst grade in law school (probably because the class was on a Friday afternoon for an ungodly number of hours and I could barely stay awake.) Lucky for me, it wasn't on the California Bar Exam except perhaps with some reference to community property, which I do grasp (no pun intended.)

My friend Neil Gaiman is on a crusade to make sure all writers have wills, because several other writers of both of our acquaintances failed to to do so (you can read the entire post here.) In both of those cases, the writers were not in good health for enough time to have taken care of the matter and didn't. Neil asked a lawyer friend of his, Les Klinger, to draw up a sample will, which he encourages people to pass on, so I will. You can find the PDF here. These are the suggestions Mr. Klinger makes:

1) Recopy the document ENTIRELY by hand, date it, and sign it at the end. No witnesses required.

2) Type the document, date it, sign it IN FRONT OF at least two witnesses, who are not family or named in the Will, and have each witness sign IN FRONT OF YOU and the other witnesses. Better yet, go to a lawyer with this form and discuss your choices!

California does recognize holographic wills--my husband and I both have them, although getting Len's through probate may wind up being pretty strange. Not all states do, however. The best advice is to take the draft to your own attorney and modify it to best fit your own situation. Most local bar associations can make referrals to specialists and the local version of the Volunteer Lawyers for the Arts is a good place to check as well.

Photographers are no less in need of wills to handle their photographic estates than writers are theirs. Photographs can have enormous historic value and it is a good idea to have someone in charge who knows what to do with them if your significant other or children don't. None of us knows what tomorrow brings, so don't be foolish. Get it done.

Wednesday, April 23, 2008

A New Twist on Infringement

Over at The Beat, Heidi MacDonald's blog for Publisher's Weekly on "comic culture," she reported that the entire contents of someone's website was "scraped" and published in a book selling for $100--without the permission of the website's owner. The story is here, with links to the offended website.

This is classic copyright infringement and the ripped off website owner should take immediate steps. The first of these is to get the material registered and after that 15 minutes, he needs to get a cease & desist letter out and, if appropriate, a DMCA takedown notice to any ISP which might be reproducing any of the material in the form of advertise the product. If the book is being sold on Amazon or e-Bay, I'd get letters off to them as well.

As most people should know, even without copyright registration, the website owner does own the copyright (and prudence says the copyright owner should have a prominent notice to that effect on the website itself.) It's just that registration is the key to the courthouse door and the key that opens the door to statutory damages and attorneys fees. It is cheap insurance.

The Copyright Office website has forms and instructions. The Library of Congress is hard at work trying to make on-line registration easier. You can get a deposit copy of a website by downloading it to a disk and then you should send it to the Copyright Office with the appropriate form and registration fee. Send it by Federal Express, or, if you live in the Washington, D.C. area, take it in by hand. U.S. Mail is slower. Registration is effective on the date of receipt by the Copyright Office, but it will probably take six months to get the certificate back. You can help yourself out by enclosing a self-addressed, stamped postcard with your registration materials with words to the effect of "The stamp of the Copyright Office hereon indicates receipt of the following: (1) [Description of the material being registered, i.e. PhotoLawyer's website and all contents on April 23, 2008 provided on one DVD]; (2) Registration form for [material being registered]; and (3) A check for the Registration Fee of [current amount.] The stamped date will let you know the effective date of registration. Then, if you want to file a lawsuit, you can state in your pleadings that registration has been applied for and the complaint will be amended as soon as the certificate is received.

Actual damages can be pretty low, which is what you are left with if you have not registered within 90 days of first publication or before any infringement has taken place. If you have a website, think about doing updates of your registration at least quarterly if you change your content frequently--you never know when someone might rip you off. In this case, actual damages would be based on the number of copies of the book sold. The website owner could also ask for, and probably get, the confiscation or destruction of the offending books (I'd probably ask for all the books and sell them myself) as well. So the damages might not be enough to make a lawsuit worth while.

If registration had been made on the material before this rip-off occurred, the website owner could have asked for $150,000 in statutory damages for each infringement (in this case there appears to be both a printed book and a disk of some kind) and attorneys fees, in addition to the confiscation or destruction of the material, which is a much better starting place for a law suit.