tag:blogger.com,1999:blog-90551987551903125882024-03-13T11:01:39.101-07:00F/8 and BewarePhoto Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.comBlogger42125tag:blogger.com,1999:blog-9055198755190312588.post-25237263924583085312015-08-24T08:32:00.000-07:002015-08-24T14:06:43.664-07:00Jeb Bush Campaign Lies about a Photograph [or Not]Earlier today, I saw a Rachel Maddow Show Facebook post about a photograph Jeb Bush is using in campaign materials in Iowa. There's a kerfluffle about his left hand, which [seems to] clearly shows the photo was a composite using a black man's body to substitute for Jeb's.<br />
<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi849R3c7fEbAq6OzlQ0O7Mb1dpP2WKoOft5szPs1TZDjBLfGpuudlaVwbe2LfqdANHH8SZ-ZSDHiAa55JBNuoNbLJmR47sXA_geDpxoMo9Nh4O1kMp4hdRJTVZgjg50rABlY9DIoGyOu5n/s1600/screen_shot_2015-08-22_at_10.04.06_am_copy.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="266" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi849R3c7fEbAq6OzlQ0O7Mb1dpP2WKoOft5szPs1TZDjBLfGpuudlaVwbe2LfqdANHH8SZ-ZSDHiAa55JBNuoNbLJmR47sXA_geDpxoMo9Nh4O1kMp4hdRJTVZgjg50rABlY9DIoGyOu5n/s400/screen_shot_2015-08-22_at_10.04.06_am_copy.jpg" width="400" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Photoshopped Jeb Bush Photo<br />
</td></tr>
</tbody></table>
<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEidZKtYbgwpIKE4LbLsoaq-WoQFykXGcYsfOyCX3jXBj4MXNev0oXPekQLFgzO4fZMNttcEAJncZiLhZOMNJzd2h_oCO5PWi5eFq_1mMSndXEQ9CzWDiSNrsTSQStuDIPh-GZkynyJp0B7T/s1600/proofphoto.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="322" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEidZKtYbgwpIKE4LbLsoaq-WoQFykXGcYsfOyCX3jXBj4MXNev0oXPekQLFgzO4fZMNttcEAJncZiLhZOMNJzd2h_oCO5PWi5eFq_1mMSndXEQ9CzWDiSNrsTSQStuDIPh-GZkynyJp0B7T/s400/proofphoto.jpg" width="400" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Original Photo</td></tr>
</tbody></table>
The original photograph has now surfaced. I apologize for getting it wrong. But it is still poorly done. <br />Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-14619135454661952482013-04-19T12:37:00.002-07:002013-04-19T12:37:49.501-07:00Copyright and the NewsBecause I couldn't remember my own blog address for this blog, I've set up a second blog to deal with legal issues. Not very efficient, I'm afraid. So here's the blog I wrote about Johannes Hirn and the infringement of his suddenly newsworthy photographs of one of the Boston bombers called "<a href="http://valadalaw.blogspot.com/2013/04/there-is-no-breaking-news-exemption-to.html" target="_blank">Broken News</a>." It is a reminder why all photographers should register their works in a timely manner so they can have an effective weapon to combat infringement by far deeper pockets.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-77715272058215755892012-10-26T16:06:00.001-07:002012-10-26T16:06:37.891-07:00If This Isn't Fair Use, Nothing IsWhen I went to law school, my intention was to help writers, photographers, painters, and other individual artists protect themselves against the looming corporations which attempt to steal copyrights from those who create work.<br />
<br />
Much to my surprise, I've just found a case where I would happily take on a corporation as a client.<br />
<br />
Sony has been sued by Faulkner Literary Rights, which controls the literary material created by William Faulkner. What happened? Sony released <b>Midnight in Paris</b>, a delightful little film by Woody Allen. Possibly the first one I've enjoyed since <b>Manhattan</b>. And what is the connection between <b>Midnight in Paris</b> and Faulkner? Owen Wilson quotes two short lines from <i>Requiem for a Nun</i>: "The past is never dead. It's not even past." Nine words and they are attributed to Faulkner in the dialog. "You know who said that? Faulkner. And I met him, too."<br />
<br />
Section 107 of the Copyright Act of 1976 (as amended) sets out the standards for fair use: <br />
<blockquote>
<ol>
<li class="indent">The purpose and character of the use, including
whether such use is of commercial nature or is for nonprofit educational
purposes</li>
<li class="indent"> The nature of the copyrighted work</li>
<li class="indent"> The amount and substantiality of the portion used in relation to the copyrighted work as a whole</li>
<li class="indent"> The effect of the use upon the potential market for, or value of, the copyrighted work</li>
</ol>
</blockquote>
<br />
If there was ever a clear case of fair use in copyright law, this is it. The amount taken was used in another artistic work, with attribution. The original work was a literary work and the new work was a 2 hour motion picture. The amount taken was miniscule. I see no possible effect on the potential market for or value of the original work, though I must confess I might want to read Requiem for a Nun because of it. I think the sentiment is spot on (especially as I see racism rearing its ugly head everywhere these days.)<br />
<br />
I am happy to see that Sony is already <a href="http://artsbeat.blogs.nytimes.com/2012/10/26/the-past-is-never-dead-a-faulkner-quote-in-midnight-in-paris-results-in-a-lawsuit/?partner=rss&emc=rss" target="_blank">characterizing this as frivolous</a>. If I were counsel for Sony, I'd be demanding sanctions against the law firm. To be fair, Mississippi is not a hot-bed of copyright litigation, so it may be the law firm is simply out of it's depth. That's why lawyers are supposed to investigate their claims and research the law before filing suit.<br />
<br />
I was once at a conference where Ralph Oman, then the Register of Copyrights, said that the office had a rule of thumb that it took 15 words before things were considered copyrightable. While a copyright covers the whole of a work and all of its parts, this is really an attempt to shut down fair use. It is (and should be) virtually impossible to hang an infringement claim on the use of nine words from a short-story, speech, or novel. You might be able to get away with it if we were talking about haiku, I suppose, and a music publisher would be all over it if we were talking about song lyrics. But we aren't.<br />
<br />
I'll be following the case, but I really hope that it dies a quick death. <br />
<br />Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-45334402133847572912012-07-23T13:49:00.004-07:002012-07-23T13:49:44.953-07:00Internet Piracy Never QuitsThe trouble with copyright pirates is they just don't go away. They come at you from all kinds of places, thinking that they can get away with what they are doing a disappear. The Internet makes it easy to destroy the value of copyrighted work, something you've created and should be able to benefit from, and makes enforcement of your copyrights very difficult.<br />
<br />
A friend alerted me to a new site promoting copyright infringement which calls itself a "library" and claims, because it is in Canada, that what they are doing is perfect legal and they can continue to do it. They claim, rightly, that they are not bound by the Digital Millennium Copyright Act, but they would not be protected by it anyway if they were in the U.S. because they are not a service provider or ISP. They are a destination website, earning money by, it appears, advertising, and making current and not so current work available for download. While encouraging others to upload digital copies of books.<br />
<br />
I have an iPad I love. I am married to a writer. Many of my best friends are working writers. They've earned the right to royalties for the works they create. I pay for the books I download. Happily. Using this site is the same thing as shoplifting a book from a store. It is theft.<br />
<br />
If you are creator of intellectual property, you should be concerned about the mentality of these thieves. While I am not a Canadian lawyer, I do believe that Canada does adhere to the Berne Convention and there is probably recourse against the individual(s) who are doing this. If you are an author, you might want to check out their growing collection<a href="http://tuebl.com/" target="_blank"> at this website </a>and take action. Isn't it lovely that they take donations via Paypal?<br />
<br />
They also have a Facebook page, but if you call them out for the thieves that they are, they will use that to harass your account. <a href="http://www.facebook.com/tuebl" target="_blank">Here is the Facebook page</a>. <br />
<br />
Dealing with Internet piracy is like playing whack-a-mole. I did it for almost three years as the lawyer for the Science Fiction Writers of America and for Harlan Ellison. I have friends who have found putting work up for free can increase sales, but they are choosing to share their work, and that is not the same thing as having it taken without permission.<br />
<br />
If you know an author, let them know this is happening and they should try to get their publishers to do something. Unlike 12 years ago, there are plenty of legitimate ways to get this material, so publishers are probably a lot more concerned about losing digital income than they were when I contacted them back then.<br />
<br />
<br />Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-52186509035992600332012-06-29T10:20:00.001-07:002012-06-29T10:20:41.102-07:00Litigation v. Arbitration<b>Photo District News</b> <a href="http://www.pdnonline.com/news/Photog-Claiming-LA-T-6067.shtml#.T-3MAv4MXaE.twitter" target="_blank">ran an article</a> this morning about a Los Angeles based photographer named David Strick who is caught between a rock and a hard place in his attempts to sue <b>The Los Angeles Times</b> for copyright infringement.<br />
<br />
The facts, according to the article, are that for a number of years Mr. Strick had a contract with the <b>Times</b> to provide photographs from various entertainment productions which would be used around the time the productions were released. The contract ended, Mr. Strick's lawyer told the <b>Times</b> they could not use the images that had been sent to them by FTP after the contract terminated. The photographs were used. Mr. Strick sued for copyright infringement, but the Federal District Court for the Central District of California in Los Angeles dismissed the case because of an arbitration clause in the contract. Then Mr. Strick's arbitration claim was dismissed because he had failed to file for arbitration within a 90 day window after the precipitating event, as specified by the arbitration rules.<br />
<br />
For as long as I was an active member of the <b>American Society of Magazine Photographers</b>, and probably even now, the <b>ASMP</b> sample contract forms specified arbitration as the means of dispute resolution between photographers and clients for most complaints. I believe the same held true for the <b>Graphic Artists Guild</b> forms as well, and for many of the generic forms available to photographers and artists.<br />
<br />
As soon as I saw the results of this language in practice as a lawyer, I changed my forms and advised my clients to do the same thing. Arbitration, especially if you can specify using an organization like the <b>California Lawyers for the Arts</b>, can be a useful means of dispute resolution sometimes. But it has become a huge barrier for most artists, especially those who live in California, where an arbitration/mediation component is part of almost every legal proceeding anyway and private arbitration becomes far more expensive than that used during the course of regular litigation, as Mr. Strick learned. Mr. Strick was required to use <b>JAMS</b>, which, apparently, was specified by the Times contract. His costs to get to his arbitration dismissed on a technicality were $20,000 in shared arbitration costs. Ugh.<br />
<br />
Mr. Strick describes himself as the less powerful party to the contract, and that's no doubt true. He did have the power to say "no" to the terms and walk away. I do suspect that his access to the subject matter was a reason he got the gig in the first place, so maybe "no" would have turned in his favor. Most photographers (and frankly, other creators) I've known in my life are so insecure that they are afraid to use that word. The people I know who have used it are generally the most successful.<br />
<br />
Mr. Strick's predicament shows the biggest flaw in agreeing to arbitration: you will be held to it, even when, as in copyright infringement, you have denied yourself some really important remedies (statutory damages & attorneys fees to the prevailing party if copyright formalities have been followed.) Copyright infringement has a 3-year statute of limitations from the time that Mr. Strick learned of the infringement. The 90-day window of the arbitration agreement is unusually short, and if Mr. Strick had been out of the country, for example, and did not learn of the infringement until a year later, he no doubt would have been similarly barred from relief.<br />
<br />
A court will look at a contract and assume that all parties are on an even playing field. In fact, they usually are not and the big corporation has an extremely unfair advantage over an individual. There have been cases where arbitration clauses are thrown out by the courts as coercive and this one appears to thwart the interests of justice. But Mr. Strick isn't a consumer, he's a business, and he should have paid more attention to the paperwork. He may be very right that this would not have happened if the people who initially brought him in for this work were still with the Times, but they are not, and contracts should be written with that anticipation.<br />
<br />
Litigation is no fun and should be avoided if at all possible. But you need to protect yourself for the worst-case scenario. Review the terms of your own paperwork carefully and give careful thought to removing language about arbitration for dispute resolution. Or perhaps you should consider making arbitration the choice for contractual disputes or for below a certain monetary limit of damages but leave litigation as the forum for copyright infringement (sometimes courts have a hard time parsing that one, you should be warned.) Even filing an arbitration dispute can be much more expensive than filing a lawsuit. Remember that if you file in California, you will probably see some kind of alternative dispute resolution inserted into the process (if you are lucky, the matter will settle there) and you won't have to pay for a court appointed arbitrator or mediator out of pocket like you will if you start with<b> JAMS</b>.<br />
<br />
If you are in love with arbitration or mediation anyway, try to specify <a href="http://www.calawyersforthearts.org/Alternative_Dispute_Services" target="_blank">C<b>alifornia Lawyers for the Arts</b></a> as your dispute resolution organization. It will certainly be cheaper and faster than <b>JAMS</b> and the arbitrators may actually know something about the business of photography or the other arts.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-53364468158927018662012-05-16T12:13:00.000-07:002012-05-16T12:13:18.902-07:00Copywriting v. Registering a CopyrightCopywriting is what people in advertising do. Registering a copyright is what creators do to establish certain valuable remedies (including damages) for the infringement of their work.<br />
<br />
I'd like to clarify this, because it is a constant source of misspeak when I give lectures or appear on panels. A copyright subsists from the moment a work is put in some permanent form in which it can be seen, read, perceived or otherwise experienced by others. With a photograph, either digital or analog, that moment arguably is at the point when the shutter is released. There is still a difference between a published work and an unpublished work, but, make no mistake, putting it up on a website is publishing these days.<br />
<br />
There are specific forms for the registration of copyrights, depending on the form of literary, visual, or performance art to be registered. The Copyright Office has an excellent website to guide a novice registrant and provide the appropriate forms needed. Check it out <a href="http://www.copyright.gov/" target="_blank">here</a>.<br />
<br />
Photographers generally use form VA for registering physical copies or use an electronic registration process, which I understand is fairly slow and frustratingly old technology. My only experience with it found it so and I just finished reading comments gathered by the American Society of Media Photographers (ASMP) for submission to the Copyright Office on its proposals for raising registration fees which support this impression.<br />
<br />
ASMP has long been the leading organization working on behalf of photographers' rights. I spent two years on the ASMP national board of directors and chaired the Rights Committee after Richard Weisgrau, the long-time chair, left the board. ASMP has forged an excellent working relationship with the Copyright Office and members of Congress, and has earned a place at the table when copyright law is considered. Naturally, it has stepped up to present the concerns of photographers who face steep increases in registration fees if the new schedule goes into effect.<br />
<br />
Photographers register more discrete works at one time than any other creators, and digital photography has increased this output. Protecting remedies to infringement by registering work in a timely fashion can be expensive, even with group registration. (As an aside, this is an issue that goes back to wet-plates, according to some old cases I have read.) <br />
<br />
Because photographers need to distinguish between unpublished and published works when registering copyrights, I have recommended to clients that they set up a workflow that permits them to register all unpublished work created within a 60 day period and separately register all worked published within a 60 day period. They can be the same periods of time, but they must be registered separately.<br />
<br />
The 60 day period is because a copyright registration that is made within 90 days of creation or first publication gives remedies for any infringement that occurs within that window prior to the actual day the registration is made. 60 days gives the photographer a pretty good window to catch an early infringement.<br />
<br />
Note: in the U.S. a copyright registration is necessary to gain access to the courthouse door. It is not necessary (but certainly helps) to establish copyright ownership. If a creator has not registered a work within the appropriate window, the creator cannot ask for statutory damages (currently as much as $150,000 per intentional infringement) or for attorneys' fees (which is usually the key to an attorney's services in an infringement.) More importantly, a timely registration is what stands between a quick settlement and expensive litigation which might not be worth the trouble if "actual" (what a photographer might have charged for a licensing fee if asked in advance) rather than "statutory" damages are what will be the basis of determining loss.<br />
<br />
A creator who fails to register copyrights in a timely manner will still have to register in order to gain access to the Federal Courts, which, currently, are the only courts of jurisdiction for infringement actions. Most of the time, if case is about the usage of a licensed image and the use made is greater than that of the contract, that case will end up in Federal Court rather than in a state court because a defendant will ask for removal with the hope the plaintiff hasn't made the appropriate registration. It is best to be ready for Federal Court at the onset. I have filed complaints where the client was in the process of getting their copyrights registered, which is disclosed in the papers filed. Some courts will permit matters to move forward, allowing the complaint to be amended when the certificate of registration is available, but this might not always be the case. There is a special form which must accompany a copyright complaint, which, I recall, asks for registration numbers.<br />
<br />
At the last talk I did, the moderator asked for ways to protect works of authorship. Two offered were to register with the Writers Guild of America (WGA) or to send a copy of the work to yourself through the mail.<br />
<br />
Neither of these methods register a copyright and neither will get you statutory damages or attorneys' fees. The WGA registration, which is actually touted as a way to protect ideas (copyright does not protect ideas, only expressions of ideas), is used to help establish first-in-time scripts or elements of screenplays. A timely copyright registration for a screenplay (make it before sending it out to readers) will do that as well, plus preserve those lovely remedies of statutory damages and attorneys' fees.<br />
<br />
The other method, of mailing a copy of the work to yourself and putting it unopened in a drawer, is sometimes called "poor man's copyright." IT IS A WASTE OF TIME. I'm not even sure it was effective for anything under the 1909 Act, but it is totally ineffective under the 1976 Copyright Act. The 1976 Act eliminated all state-level copyright protection, established a term of copyright protection based on the life of the author (while a different time frame was established for "works made for hire"), and established the Federal Courts as the only venue to hear claims of copyright infringement.<br />
<br />
One final note, in the not-so-distant past, creators relied on the copyright registration of a magazine or book to protect their individual contributions therein. Unless you are the only author of the book or magazine (unlikely), you must register the copyrights for your contributions separately to preserve your rights. If you are the only author of a book, you should, by contract, make sure that the copyright registration will be made on your behalf, in your name, by the publisher. If you make a contribution to a book which has works by a number of people in it, make sure your reserve your copyright rights in your contract with the publisher and make your own registration of the contributed works. If you provide work to a magazine, make sure you register your contributions as published works. If you were able to register your contributions as unpublished works originally, registering them again when they are published is a good business practice (though not entirely necessary.)<br />
<br />
Questions?<br />
<br />
<br />Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com4tag:blogger.com,1999:blog-9055198755190312588.post-79896518672354458352012-05-15T18:49:00.000-07:002012-05-15T18:57:29.699-07:00Thoughts on RepresentationI recently accepted an invitation to appear on a panel dealing with copyright and trademark issues for a local writers' organization. Four of the five panelists were lawyers, two of whom also said they were agents for writers. I think there is an inherent conflict of interest in that designation.<br />
<br />
As a lawyer, I know my duty is to my client. I have to perform due diligence to make sure I do not have a conflict in representing an old client when I take on a new client. Disclosures must be made and releases sometimes need to be signed.<br />
<br />
An agent can, and frequently does, represent a number of clients who
are looking for work (or contracts, in the case of a prose writer) in
the same places. These clients are, in essence, competing against each
other. <br />
<br />
An agent, by definition, is supposed to be working on behalf of his or her principal and, in law school, I thought I was taught there were fiduciary duties involved in that relationship. Now, I am not so sure agents see it that way. While I think that the agent does have a fiduciary duty to the writer or photographer or artist he or she represents, I have heard too many stories of creators whose agents failed to send on royalty payments or who inserted clauses into contracts which benefited the agent but which were no benefit to the creator. A lawyer should bring independent eyes to a contract review, and know that duty lies not to him or her self, but to the client.<br />
<br />
Back in the day when I was a full-time photographer (and never had an agent except for stock work which was a 50/50 split), photographers' agents might represent non-competing photographers, such as a fashion photographer and an architectural photographer. But many agents worked exclusively with a single photographer, earning a commission on the order of 35%. (To be fair, a lot of the time a photographer's agent was often the photographer's spouse and I always thought that having an agent taking 35% was like being married to someone without the benefits.)<br />
<br />
Book agents, by comparison, worked with many writers and took a commission of 10% (now the usual fee is 15%.) Legitimate television and film agents, because they are in the business of "procuring employment" are still limited by law in California to 10%, but large agencies can circumvent this by "packaging" a project, where they are allow to commission at a higher rate against the project, but cannot then take a commission against individual talents.<br />
<br />
Here in Hollywood, there are people called "managers" who are unregulated as to what they do and how much money they can charge for commissions. They are not supposed to be "procuring employment" but many of them do just that. They also charge 15% and up for what they do.<br />
<br />
I've heard tales of people who call themselves "agents" and then change the designation to "manager" or, worse, say they are "producers" and really screw over writers who are hoping to make an impact in Hollywood. I call them barnacles, a term of art I learned at some MCLE program or another. You do not get to change your title mid-stream. You do not get to attach yourself to a project and kill it for your principal if you don't get what you want for yourself.<br />
<br />
Lawyers are highly regulated and licensed. Agents who "procure employment" for talent are also regulated and licensed. Managers have fought tooth and nail to avoid any kind of licensing or regulation. Literary agents, meaning those who represent prose writers, and artists' agents do not appear to be licensed beyond having a business license wherever they set up shop, although I know that there is are some trade associations for them. I've known some good and honorable agents. I've also been told tales of horrible agents. And my friends Victoria Strauss and Ann Crispin have spent decades watching and reporting on the scammers out there, who steal money and dreams from aspiring writers. (Check out <a href="http://www.sfwa.org/for-authors/writer-beware/" target="_blank">Writer Beware</a> to see the good work they do.)<br />
<br />
There is something about a lawyer claiming simultaneously to be an agent that makes me very uncomfortable. I've been in the position of negotiating (and getting) points in a contract that the agent for our mutual client refused to take up because it might affect some other deal they had in the works. This is not a good thing, and if the lawyer and agent were the same person, it could lead to a malpractice claim down the line. Malpractice is my worst nightmare.<br />
<br />
So, if you are in the market for a lawyer or an agent or even a manager, don't look for one in the phone book. Do some investigating before you sign any agreement with any representation. Use the Internet. Ask for references. Talk to some of their other clients. Remember, it's likely to be a relationship like a marriage without the benefits.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-26400672436013084052010-07-15T16:16:00.000-07:002010-07-15T16:19:15.572-07:00Rights Grab<p><span style="font-family: Verdana;">I got an interesting e-mail recently at work. I share it with you. It is something to keep in mind. There should always be some sort of consideration for amending a contract, and it can't be done unilaterally. Many publishers are giving expansive readings to their own contracts, to the detriment of authors. Writer (and artist) beware:<br /></span></p><p style="font-style: italic;"><span style="font-family: Verdana;">The information in this email is being sent on behalf of the National Writers Union. The AAUP is supportive of the work of the National Writers Union (NWU) and has partnered with the NWU on issues of common interest to our members. The AAUP is not providing any legal assessment or advice related to e-book contract amendments and is not responsible for the legal advice provided by NWU in this message.</span></p> <p style="margin-left: 40px; font-style: italic;"><span style="font-family: Verdana;"><span style="color: rgb(0, 128, 128);"><b>Message from the National Writers Union About E-Book Contract Amendments</b></span></span></p> <p style="margin-left: 40px; font-style: italic;"><span style="font-family: Verdana;">With e-books starting to surge, many publishers are asking textbook and trade book authors to amend their existing contracts to include e-book and other electronic rights. If you receive such an amendment from any publisher, please don’t sign it before you read the National Writers Union’s </span><a title="blocked::https://nwu.org/sites/nwu.prometheuslabor.com/files/ebook contract amend.pdf" href="https://nwu.org/sites/nwu.prometheuslabor.com/files/ebook%20contract%20amend.pdf"><span style="font-family: Verdana;" title="blocked::https://nwu.org/sites/nwu.prometheuslabor.com/files/ebook contract amend.pdf"><span style="color: rgb(0, 128, 128);" title="blocked::https://nwu.org/sites/nwu.prometheuslabor.com/files/ebook contract amend.pdf">primer on e-book amendments</span></span></a><span style="font-family: Verdana;">.<br /><br />It’s important to remember that you are under no obligation to sign an amendment to an existing contract. You should only sign an amendment if you get the terms you want. If you don't agree to a proposed amendment, the original contract remains in force. So, take your time and negotiate the best deal you can.<br /><br />As negotiating an amendment or a contract can be an intimidating proposition, be sure to check out the </span><a title="blocked::https://nwu.org/sites/nwu.prometheuslabor.com/files/NegotiatingOverPhone.pdf" href="https://nwu.org/sites/nwu.prometheuslabor.com/files/NegotiatingOverPhone.pdf"><span style="font-family: Verdana;" title="blocked::https://nwu.org/sites/nwu.prometheuslabor.com/files/NegotiatingOverPhone.pdf"><span style="color: rgb(0, 128, 128);" title="blocked::https://nwu.org/sites/nwu.prometheuslabor.com/files/NegotiatingOverPhone.pdf">NWU’s Negotiating Contracts over the Phone primer</span></span></a><span style="font-family: Verdana;"> beforehand. This document is filled with useful information that will help you negotiate from a position of strength.</span></p> <p style="margin-left: 40px; font-style: italic;"><span style="font-family: Verdana;">The National Writers Union provides </span><a title="blocked::https://nwu.org/contract-advice-0" href="https://nwu.org/contract-advice-0"><span style="font-family: Verdana;" title="blocked::https://nwu.org/contract-advice-0"><span style="color: rgb(0, 128, 128);" title="blocked::https://nwu.org/contract-advice-0">free book contract advice</span></span></a><span style="font-family: Verdana;"> and </span><a title="blocked::https://nwu.org/grievance-assistance" href="https://nwu.org/grievance-assistance"><span style="font-family: Verdana;" title="blocked::https://nwu.org/grievance-assistance"><span style="color: rgb(0, 128, 128);" title="blocked::https://nwu.org/grievance-assistance">grievance assistance</span></span></a><span style="font-family: Verdana;"> to our members, many of whom are academics. To learn more about the NWU, check out our website at </span><a title="blocked::https://nwu.org/" href="https://nwu.org/"><span style="font-family: Verdana;" title="blocked::https://nwu.org/"><span style="color: rgb(0, 128, 128);" title="blocked::https://nwu.org/">https://nwu.org/</span></span></a><span style="font-family: Verdana;">.<br /><br />If you have any questions or concerns about a book contract and/or an e-book amendment, please contact us at </span><a title="blocked::mailto:advice@nwu.org" href="mailto:advice@nwu.org"><span style="font-family: Verdana;" title="blocked::mailto:advice@nwu.org"><span style="color: rgb(0, 128, 128);" title="blocked::mailto:advice@nwu.org">advice@nwu.org</span></span></a><span style="font-family: Verdana;">.<br /><br />E-books present tremendous opportunities for academic authors, but only if you are fairly compensated for your work.</span></p> <p style="margin-left: 40px; font-style: italic;"><span style="font-family: Verdana;">Paul J. MacArthur<br />Assistant National Contract Advisor<br />Vice President of External Organizing<br />National Writers Union<br /></span><a title="blocked::mailto:pmacarthur@nwu.org" href="mailto:pmacarthur@nwu.org"><span style="font-family: Verdana;" title="blocked::mailto:pmacarthur@nwu.org"><span style="color: rgb(0, 128, 128);" title="blocked::mailto:pmacarthur@nwu.org">pmacarthur@nwu.org</span></span></a></p>Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com2tag:blogger.com,1999:blog-9055198755190312588.post-76159064172211486082010-05-19T08:40:00.001-07:002010-05-19T10:11:41.189-07:00Wannabe Writer v. AvatarI had a couple of calls from people seeking legal advice before <span style="font-weight: bold;">Avatar</span> was released. I told them all I no longer litigate (true), but the last thing I wanted to be involved in was something as silly as<a href="http://gawker.com/5542239/the-insane-avatar-copyright-lawsuit-filed-against-james-cameron"> this law suit which has been filed.</a> The book has never been published and sounds like what my friends in publishing call a "Mary Sue." I'm sure that if the manuscript ever hit a slush pile, it would be used in a late-night, read-out-loud session at a science fiction convention, which is what happens to really bad manuscripts.<br /><br />There are legitimate cases where work has been stolen and the plaintiff prevails. The <span style="font-weight: bold;">Northern Exposure</span> case won by Glen Kulik always comes to mind. And Harlan Ellison had a famous run-in with James Cameron over<span style="font-weight: bold;"> Terminator</span> (Cameron made an admission against interest which led to it, I hear. It was years before Harlan was my client.) Harlan also went up against Paramount over a short-lived TV series called <span style="font-weight: bold;">Brillo</span>, which I hear led to a billboard near Paramount for a while (again, before he was my client.)<br /><br />I once had someone from Eastern Europe call me to say that a disaster movie had been stolen from him. His English was not good enough for me to believe that had happened. Actually, several times I've gotten inquiries about what would be a theft of idea case where I didn't think the caller had the language skills to have written a screenplay or novel that anyone would have (a) read or (b) stolen. (If this sounds a little elitist or arrogant, I'm married to a very successful writer and wordsmith--an "old god" of his field--and I have spent time with many, many famous writers. I also spent time working in publishing. I know the difference between good and god-awful.)<br /><br />Most of the time, the plaintiff is working on a theft of idea theory--somehow their idea or work got into the hands of someone who then used it as the basis of a movie. The plaintiff would not have given it away without expectation of payment. These claims of quasi-contract only have a chance of working in California. It's a claim under state law, and most states won't recognize it.<br /><br />Copyright does not protect ideas, only expression. If a substantial amount of the "idea" has been expressed in writing--an outline, a treatment, or a draft of a screenplay--the first thing a studio which is hit with a theft of idea case will try to do is kick it from state court to Federal Court as a copyright claim. If the plaintiff hasn't registered the copyright to the work, it puts them behind the eight ball at the start and severely limits plaintiff's damages.<br /><br />The next step in the plaintiff's case is going to be to show access and substantial similarity between plaintiff's work and the alleged infringing work. And defendants don't get off the hook by showing how much they changed from the original. There is no magic percentage of change that makes it original, no matter what you have heard.<br /><br />Access such as having a meeting with the producer who produced the infringing work and submission of plaintiff's work is pretty darned good potential access (which is why most places won't even look at work that's submitted cold without getting a waiver from the writer.) The similarity becomes the big hurtle. There are experts who do detailed analysis and charts to present evidence of similarity or lack thereof.<br /><br />In a science fiction or fantasy work, traveling to a new world with strange new creatures is endemic to the genre. There are hundreds of tropes in these genres. Space ships, winged aliens, elongated, aliens of different colors, military invasions, mining (even <span style="font-weight: bold;">Star Wars</span> had a mining planet) etc., etc., etc. The stranger in a strange land concept goes back to the <span style="font-style: italic; font-weight: bold;">Bible</span> and probably beyond (the phrase comes from the <span style="font-weight: bold; font-style: italic;">Bible</span>.) Using any or all of these concepts doesn't get you to copyright infringement. Things have to be a lot more specific and it is even better if chucks of dialogue are identical (and not just because that's what anyone would say under certain circumstances.)<br /><br />I haven't seen <span style="font-weight: bold;">Avatar</span>, which is strange considering my background. But I'm not a Cameron fan and, while I think this lawsuit is bogus, there are plenty of other sources from which Cameron probably stole his ideas. But he's allowed to steal the ideas, just not the expression. Even people who are as turned off by his poor dialogue as I am say it is the visuals that make the film and he did a great job with them.<br /><br />Among the material I've seen people cite as source material for <span style="font-weight: bold;">Avatar</span>'s plot and other elements are <span style="font-weight: bold;">Dances with Wolves</span>, <span style="font-weight: bold;">Pocahontas</span> and Ursula K. LeGuin's Earthsea stories. When I finally get around to watching it, I may have some suggestions to add.<br /><br />I expect that this lawsuit is going to get thrown out at the motion stage. With a bit of luck, the judge may even sanction the law firm if this is as frivolous as it looks at first glance. I'm having a hard time reading the complaint without laughing.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-88854221830492721422010-05-17T09:28:00.000-07:002010-05-17T09:54:30.870-07:00WB v. Superman's LawyerI doubt that I would have been contacted by the Siegel & Shuster families when my article <span style="font-weight: bold; font-style: italic;">"Truth Justice & the American Way"</span> appeared in <span style="font-weight: bold;">L.A. Lawyer Magazine</span> in 1996 if some of the allegations in the law suit against Marc Toberoff are true. There are things in the opening paragraphs of the complaint, which you can read <a href="http://reporter.blogs.com/files/superman-2.pdf">here</a>, that don't sound like what I learned when I was doing my research for the article or the law school paper that preceded it in 1992.<br /><br />It will be very chilling if lawyers can be sued personally for taking on a legitimate case (which the Siegels did have for the renewal rights.) And I find it annoying that the complaint waxes eloquently about how well DC Comics/WB took care of the Siegels and Shusters when anyone in the comic book industry can tell tales to the contrary for a huge part of the 70 plus years of Superman's existence. Paul Levitz did a lot to improve the financial position of many of the older, pre-equity creators, but there were a lot of years before he ran the company. <br /><br />And, contrary to the allegations in the complaints, Siegel and Shuster used every legal opportunity they had to attempt to regain control of the Superman empire. The various suits are a matter of public record. Both Siegel and Shuster died before the window for reclaiming works created under the 1909 Copyright Act which was written into the 1976 Copyright Act opened. That opportunity was described in a side-bar in my article. The Siegel heirs (widow and daughter and grandchildren) had that right. The complaint correctly notes that Joe Shuster left neither widow nor offspring, so I don't know what was done to include the Shuster heirs (sister and nephew, I think) in the matter.<br /><br />I will certainly be watching this closely. Mr. Toberoff, I hear, is also representing the family of Jack Kirby against Marvel, and some of those properties have a direct bearing on my husband's Marvel creations.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-37645666197307092012009-11-12T08:20:00.000-08:002009-11-12T08:50:07.642-08:00Fairey's New Hope<a href="http://news.lp.findlaw.com/ap/f/1310/11-11-2009/20091111055008_16.htmlhttp://">Here's an article</a> about Shepard Fairey's changing lawyers in his case about his copyright infringement of a photograph to create the poster of Barack Obama called "Hope."<br /><br />His new lawyer from Jones, Day (the largest law firm in Cleveland, and one of the largest in the world--I cannot figure out why they've even taken this case since they are a corporation-side law firm) says that one of the ways Fairey can win is "fair use." This is so not fair use.<br /><br />Fairey took the whole of the work.<br /><br />Applying a posterizing filter in Photoshop is so not transformative.<br /><br />He's denied the photographer (and there is still an issue about whether the photograph is AP's property or the original, freelance photographers--C.C.N.V. v. Reid says it's the photographer, not AP that owns the image) the right to make that own derivative work.<br /><br />Whether or not he's made money for this, his lawyers better take a close look at Rogers v. Koons, which also says this isn't fair use and any money is going to go to the photographer (or AP, if it does turn out AP owns the image.) In the Rogers' case, Jeff Koons took a greeting card with Rogers' photograph of two people holding a litter of puppies, ripped off the copyright notice, sent the photo to artisans in Italy who fabricated a statue of the images--I think nine of them were made--and Koons then sold them at over six-figures a pop, because he is "an artist.') (Koons has also been sued by--and lost to--Jim Davis for doing a statue of Odie from "Garfield." Some people never learn.)<br /><br />Fairey's poster is an unauthorized derivative work of this photograph, just as the Koons statue was. I think that the judge should have made that ruling on a motion and saved a lot of people a whole lot of money and labor in legal fees. I had a case where the judge pulled in all of the parties--including insurance companies who'd be doing the payout--and told us all the case was about money and there was a price that would make it all go away. He was right. While the insurance defense firm was royally pissed that the parties could do this, it worked out well for everyone else.<br /><br />Jones, Day is the same law firm that represented the Rock & Roll Hall of Fame against a photographer who made a poster from his shot of the building at sunset--which is, by the way, a fair use--claiming that it was a violation of the Rock Hall's trademark rights in the building. While the trial judge in Cleveland took that hook, line, and sinker, the Sixth Circuit saw right through what had happened (Jones, Day could say what ever it wanted to in Cleveland with no law to back it up against a misguided photographer who represented himself at the hearing) and ruled that because the Rock Hall had no standing to sue on the basis that the photograph infringed on their copyright (the copyright to a building actually rests with the architect and anyone can photograph a building from a public place and not infringe that copyright--as the law clearly says) the lawyers stretched to find a trademark right in every image of the building, which does not exist. It was a nice ruling for the photographer.<br /><br />You'd think that Jones, Day would have lawyers who know more about copyright than to take this case thinking they can win under the argument of "fair use."Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-70721548856119262072009-10-26T09:08:00.000-07:002009-10-26T09:10:42.079-07:00Jeopardy Home Town HowdeeJeopardy! has put up this week's "Home Town Howdees"<a href="http://www.jeopardy.com/showguide/thisweek/http://"> here.</a> See me immortalized making funny faces. Remember to watch the show tonight!Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-20279590454306774572009-10-06T15:12:00.000-07:002009-10-06T15:48:12.098-07:00Real Fair Use<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj-IUStfbwKwsi5TW2V7JDpJJ_Z0ECONJMv9OTwaN4ycGJTYdXvnrUdQaPBb5hK3a-0SuTDVTGuQ1nton4Qu6vBFm7uj0V6VkDxsLqWz9KlhsnDlQ-Tcjvqt-V2sKqSeecoE37tJrdNRdvb/s1600-h/Lauren+ad.jpg"><img style="margin: 0pt 10px 10px 0pt; float: left; cursor: pointer; width: 182px; height: 320px;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj-IUStfbwKwsi5TW2V7JDpJJ_Z0ECONJMv9OTwaN4ycGJTYdXvnrUdQaPBb5hK3a-0SuTDVTGuQ1nton4Qu6vBFm7uj0V6VkDxsLqWz9KlhsnDlQ-Tcjvqt-V2sKqSeecoE37tJrdNRdvb/s320/Lauren+ad.jpg" alt="" id="BLOGGER_PHOTO_ID_5389617651218762514" border="0" /></a>I collect litigated art for the talks I give about copyright and artists rights, and, in preparation for a talk I'm giving next week, a peachy one has just crossed my desk.<br /><br />I do not normally agree with Cory Doctorow about copyright issues. He's firmly in the camp of "information wants to be free" which I find at odds with his other job of being a science fiction writer. Cory was on the board of directors of the Science Fiction Writers of America when I first was hired as their attorney, so we've had some dealings over the years. He's a very smart and personable gentleman, even if I don't agree with most of the positions of the Electronic Frontier Foundation or those he propounds on Boing Boing.<br /><br />This time, though, Cory and <a href="http://www.boingboing.net/2009/10/06/the-criticism-that-r.html">Boing Boing</a> are absolutely in the right. They've reproduced a photograph of an impossibly thin model in a Ralph Lauren ad, which you can see here and read about <a href="http://www.huffingtonpost.com/2009/10/06/emboing-boingem-and-ralph_n_311593.html">on the Huffington Post</a>. <a href="http://www.boingboing.net/2009/10/06/the-criticism-that-r.html">Boing Boing's</a> been hit with a <a href="http://craphound.com/10-2-09LettertoPriorityColoinrePRLInfringement.pdf">cease and desist letter</a> from Ralph Lauren's lawyers claiming copyright infringement.<br /><br />This doesn't pass the smell test, or the giggle test, as the blog pointed out. While I get a lot of queries about fair use, most of them involve situations where some schmuck wants to use work without paying for it. This is not that kind of a case. The photograph was reproduced under one of the clearest cases of fair use I've ever seen--commentary on the photograph itself. I think it was originally reproduced in <a href="http://photoshopdisasters.blogspot.com/">Photoshop Disasters</a>, one of the funniest blogs anywhere, especially if you work with Photoshop (as every photographer today does.) <br /><br />As pointed out elsewhere, the model in the Lauren ad has a head which is bigger than her pelvis. Last time I looked, that's more than a bit out of proportion. I find her legs to be absurdly thin--rather like Laura Flynn Boyle's walking skeleton the night that David E. Kelley was honored for his legal series at the Television Academy. I could not believe that people complained about Callista Flockhart when Ms. Boyle looked like she had not 1% body fat and legs that looked like toothpicks in her leather pants. (This was my impression from my view about three feet away at the reception that night.)<br /><br />The model looks awful. Kudos to Cory for pointing this out. I'll handle the case against Ralph Lauren if Cory needs it, which is not an offer I make lightly. Lauren's high powered law firm should have advised him that this is a no-win situation. (Which is what I will tell them if they bother me with one of their C&Ds now that I've had my teaching moment about litigated art.)<br /><br />And someone should set up a fund to feed this girl.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-76686724663007281202009-09-11T10:59:00.000-07:002009-09-11T11:15:00.566-07:00What's Really Wrong with the Google "Settlement"I've just been reading Register of Copyrights Marybeth Peters' statement to the Judiciary Committee on the Google Book Settlement. You can, and should, read it <a href="http://judiciary.house.gov/hearings/pdf/Peters090910.pdf">here</a>, especially if you have or contemplate having works in print. This involves Google's plan to illegally digitize every book, in or out of print, it can lay its hands on through major library collections, particularly those at colleges and universities. (As I recall, my college library didn't have much of a fiction or comic book collection, but these things change and at least some colleges have huge collections of graphic novels or the papers of science fiction writers.)<br /><br />I opted out of the settlement for myself and the spousal unit a couple of weeks ago. I have long believed that requiring me to opt out, rather than requiring Google, Amazon, or other similar profit-making entities to individually contact and negotiate with a copyright owner AS THE LAW REQUIRES is an abomination. I am very happy to do it in this case because I can chose to sue them at any time I find they have ignored my wishes. Based on the number of other people I know who have opted out, this should make the company aware that lawsuits loom on the horizon. Finding out that Marybeth Peters believes the settlement usurps Congress' Constitutional right to make law related to copyright makes me do the dance of joy.<br /><br />If you haven't opted out of the Google settlement, it may now be too late. But it probably isn't too late to let your Congressperson know that you object to the courts stepping in and depriving you of your control over your copyrights. How many of you with published works got a notice of this? If you aren't a member of a creators' trade association, I'll bet it has slipped you right by. I recommend you look into joining ASMP, APA, GAG, SFWA, the Authors Guild or another, similar, group so you won't be left out in the dark.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-80006975806316342142009-08-07T12:22:00.000-07:002009-08-07T13:23:04.576-07:00Even Successful Artists Make Big MistakesThe mind boggles. Annie Liebovitz is in danger of losing the rights to her photographs because of a $24 million loan she took out last year. She's also in danger of losing several homes or buildings she owns, but that's of less concern to me than the issue of her copyrights. Here's the <a href="http://www.nytimes.com/2009/08/02/fashion/02annie.html?pagewanted=1&_r=1">story</a>. And another one <a href="http://www.bloomberg.com/apps/news?pid=20601088&sid=aFihBGbUFPs8">here</a>.<br /><br />I was a professional photographer, and I'll tell you I felt under-capitalized the whole time I worked full-time, but I can't begin to figure out how someone gets to be $24 million in debt as a working photographer. Yes, start up costs are considerable higher than they were when I started out, but Annie started out a few years before I did, when the most expensive Nikon body was less than $600 new and a couple of good cameras and lenses would put you in business. She had the good fortune to hook up with Rolling Stone, and the rest is history.<br /><br />I started following Annie's career around 1974 when Peterson's published a book about her and Mary Ellen Mark. My own work is based in portraiture for magazines, books, newspapers, corporate communications, and advertising, so I looked to her as a role model. I met her once, many years ago, and I have the greatest respect for her as a working photographer. Greg Heisler once said "if you want to be a famous photographer, photograph famous people." It is absolutely true, as both he and Annie prove and it certainly helped my own career to do celebrity portraits during my stint as a freelancer for the Washington Post. Art directors remembered those portraits for years after they appeared and they stopped people in their tracks when they'd walk into my office where I had a number of them hanging.<br /><br />I would doubt that she had the same troubles I did getting advances on fees and expenses from her corporate or advertising clients, but maybe that is exactly where the troubles came from. If you are doing these huge production shoots, but you are expected to front the costs for assistants, models, stylists, props, travel, food, etc., those costs can start climbing really quickly and waiting 60-180 days for payment can put a real crimp in your finances. But $24 million? Wow.<br /><br />Even if the buildings she owned in New York or the outlying areas were money pits, you'd think she'd cut her losses before it got so outrageous. Maybe the buildings or houses are worth far less because of the housing crash. That's possible, but the reported value of the homes doesn't come close to explaining $24 million.<br /><br />Maybe it's medical related. If you look at the familial issues of the last 9 years in her life, maybe some of that factors in. Having a child after the age of 50 is no cheap thing in a world where Viagra is covered by insurance but women's fertility issues aren't. Plus her twins were carried by a surrogate. Was she supporting her extended family and over-extended herself?<br /><br />She did have an admitted drug problem back in her younger days, but I was under the impression that was long gone. If it wasn't, $24 million sounds like a whole lot more than a drug dealer would let build up before taking action, so I doubt that's the reason she needed to borrow that much money.<br /><br />Maybe she ran up legal bills with the fight against Naked Gun 33 1/3 for copyright infringement of her famous pregnant Demi Moore photograph. I think that the court came to the wrong conclusion--the Fair Use analysis was faulty--but she'd still have to pay lawyers (or at least expenses) after losing the case. But again, $24 million?<br /><br />No matter how famous she is, I can't believe that even her celebrity status would be enough to encourage a reputable lending institution to place that great a value on her archive as collateral for a loan. If it does, I have a wonderful archive of writer's portraits I'd like to leverage to buy a bigger house. I need about $900,000 and the lender will have to honor the model releases. Some of the most famous writers are no longer with us and the images are ones they really liked (and have appeared on book jackets.)<br /><br />If I were Annie, I'd be heading for a bankruptcy attorney immediately. At least that way she'd probably still have one roof over her head and the tools of her trade. While I'm not a bankruptcy attorney, I know that there's something called a "homesteader's exemption"--or at least there used to be-- which protects those things. The copyrights are more problematic. They certainly are assets and they do figure in whatever loan Annie took out. This is a sophisticated lender who knows the value of the archive, so it's definitely going to be brought into the petition. I'd like to think that there's room for negotiation here. The lender believes the assets are worth twice the value of the loan, so it's quite possible a good lawyer will be able to negotiate a happy solution.<br /><br />I'd also recommend that Annie contact someone like ASMP's former Executive Director, Dick Weisgrau, to work on fixing her business practices. This is a situation that got way out of hand, but is not atypical of the left-brain, right-brain skills dichotomy of an artistic person versus a business person. The most successful photographers I've known had a really good handle on the business they ran, but some of the most creative didn't.<br /><br />I wish Annie nothing but the best and I hope she extricates herself from this to move forward and continues to make great pictures. But I hope she does it with better business advisers.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com1tag:blogger.com,1999:blog-9055198755190312588.post-62354336534750200242009-07-07T13:09:00.000-07:002009-07-07T13:32:51.334-07:00DMCA in the S.D. of New YorkMy friend Lisa Jane has been disappointed that I haven't written on this blog for a while. To her I apologize, but there hasn't been a lot of time lately. I did see something today that made me do the happy dance. It's reported on <a href="http://blogs.wsj.com/digits/2009/07/01/riaa-wins-copyright-lawsuit-against-usenet/">here</a> and <a href="http://blogs.findlaw.com/technologist/2009/07/benchslap-of-the-day-judge-tears-usenetcom-a-new-port-in-riaa-case.html">here</a>. It's an R.I.A.A. case, Arista Records v. Usenet.com.<br /><br />The ruling is on the use of the Digital Millennium Copyright Act (DMCA) safe-haven provisions and it is time for copyright owners to breathe a sigh of relief. First of all, it is in their favor. Second, it's in the Federal District Court for the Southern District New York, where a lot of copyright litigation takes place.<br /><br />I'm looking forward to reading the actual ruling, but the bottom line is that Usenet.com got slammed for claiming what it was doing was protected by the safe haven when it did things like destroy evidence and encourage the use of the service to infringe on the copyrights of others.<br /><br />When I represented Harlan Ellison against AOL, AOL claimed it was entitled to the safe haven because copyrighted material uploaded by others was only "in transit" on their servers (how the material sitting for weeks on AOL's servers constituted "in transit" was beyond me, but the trial court judge bought it.) Ultimately, Harlan prevailed in part because the Ninth Circuit believed that AOL did not hold up its end on what it needed to qualify for the safe haven (by keeping accurate information about its agent for service of notice of copyright infringement available on the Copyright Office website.) In part, that's what's bringing Usenet.com down here, but there is also the matter of the court recognizing that the material was residing on Usenet servers so other people could download it.<br /><br />I am so glad to see a better understanding of the damage that the DMCA can cause copyright owners as time has passed. Harlan's first filing was in 2000, occurring pretty much at the same time as the Napster litigation. There was almost no support for what we were doing and individuals who should have seen what we were doing was in their best interests as well just didn't. <br /><br />Not everything has been resolved by this ruling, and I'd lay money that it is appealed, so I'll be watching what happens. Probably with a big smile on my face. I think I'll look up Judge Harold Baer and see what his other rulings look like.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-33312766539784432052008-11-19T12:27:00.001-08:002008-11-19T12:31:19.358-08:00I Spoke Too SoonI got this nervous note from the Society of Illustrators via the Advertising Photographers of America, so take it as you will. I wasn't aware that the subcommittee, headed by Congressman Berman, was being abolished. Congressman Berman, long a friend to creators, wanted a different chairmanship this time out (as Marybeth Peters told me in January.)<br /><br />Lots of bills get slipped by this way, and the Orphan Works Bill is bad news for individual creators (sorry, Howard):<br /><p style="margin: 0px;" align="left"><span style="font-family:verdana,geneva;font-size:85%;"><span style="font-size:100%;"><strong><br /> <br /> Orphan Works Update: Congress has reconvened today.<br /> <br /> 11.19.08 </strong></span><br /> <br />They're scheduled to be in session until Friday, although that could change. And although sponsors of the Orphan Works bill say publicly that it won't come up, sources have told us they'll try to use the lame duck session to pass it by means of another back room deal.<br /> <br />Currently the situation in Washington is fluid, but if deals are being made, they'll be made before the bill is placed on the Suspensions calendar. Then they'll try to pass it immediately. How we respond will depend on developments. But while we keep watch, consider this news from the National Journal, Nov. 12, 2008:<br /> <br /> <strong>Conyers To Abolish IP Subcommittee On Judiciary Panel</strong><br /> by Andrew Noyes<br /> <br /> "House Judiciary Committee Chairman <strong>John Conyers</strong> will abolish the Subcommittee on Courts, the Internet, and Intellectual Property in the new Congress and instead keep intellectual property issues at the full committee level, a Judiciary aide told CongressDaily today."<br /> <br />This is the subcommittee that spawned the Orphan Works Act and placed it on the "Rocket Docket." Yet remember last spring, when those lobbying for this bill warned us that unless we accepted it - no matter how bad it was - that the next chairman of the Subcommittee would be a copyright foe and would pass a worse one? Well, now the Subcommittee itself won't exist. So much for urging artists to bet against themselves!<br /> <br />This bill is very controversial. It would strip ordinary citizens of their intellectual property rights without due process. This is no way to pass legislation that would radically change US property laws. The bill can be fixed, but there is no time to fix it in a lame duck session. Stay tuned.<br /> <br /> - Brad Holland and Cynthia Turner, for the Board of the Illustrators' Partnership<br /> ______________________________________________________________<br /> <br /> <strong>Over <a href="http://e2ma.net/go/1500275987/1371264/50365332/goto:http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00273" target="_blank">80 organizations</a> oppose this bill, representing over half a million creators.</strong><br /> <br /> <strong>U.S. Creators and the image-making public can email Congress</strong> through the Capwiz site: <a href="http://e2ma.net/go/1500275987/1371264/50365331/goto:http://capwiz.com/illustratorspartnership/home/" target="_blank">http://capwiz.com/illustratorspartnership/home/</a> 2 minutes is all it takes to tell the U.S. Congress to uphold copyright protection for the world's artists.<br /> <br /> <strong>INTERNATIONAL ARTISTS</strong> please fax these 4 U.S. State Agencies and appeal to your home representatives for intervention. </span></p> <p style="margin: 0px;" align="left"> <span style="font-family:verdana,geneva;font-size:85%;"><a href="http://e2ma.net/go/1500275987/1371264/50365330/goto:http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00267" target="_blank">http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00267</a><br /> <br /> <strong>CALL CONGRESS: 1-800-828-0498</strong>. Tell the U.S. Capitol Switchboard Operator "I would like to leave a message for Congressperson __________ that I oppose the Orphan Works Act." The switchboard operator will patch you through to the lawmaker's office and often take a message which also gets passed on to the lawmaker. Once you're put through tell your Representative the message again.<br /> <br /> If you received our mail as a forwarded message, and wish to be added to our mailing list, email us at: <a href="mailto:illustratorspartnership@cnymail.com?subject=">illustratorspartnership@cnymail.com</a> Place "Add Name" in the subject line, and provide your name and the email address you want used in the message area. Illustrators, photographers, fine artists, songwriters, musicians, and countless licensing firms all believe this bill will harm their small businesses.<br /> <br /> </span></p> <div align="center"> <span style="font-size:100%;"><em><span style="font-family:verdana,geneva;"> <strong>Please post or forward this message to any interested party.</strong></span></em></span><br /> <span style="font-family:verdana,geneva;font-size:85%;"><strong> </strong></span> </div> <div align="center"> </div> <div align="center"> <span style="font-family:verdana,geneva;font-size:130%;color:#ff0000;"><strong>Stop the US Orphan Works, act now.</strong></span><br /> </div> <p style="margin: 0px;" align="left"> </p>Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-34715732670040502702008-10-01T13:50:00.000-07:002008-10-01T13:58:13.148-07:00Orphans StillThe best news about legislation I've heard in a long time came across the transom this morning: the Orphan Works Bill is dead. At least for now.<br /><br />The Orphan Works Bill is a misguided attempt which would make copyright registration practically worthless, because an unauthorized user could make certain claims about unsuccessful attempts to reach a copyright owner, go ahead and use the work, and the owner would be limited in the amount of damages he or she could collect.<br /><br />Why spend $45 to register your copyright if you don't have the power of $150,000 for damages for intentional infringement? Beats me.<br /><br />I think Congress should pass a bill that says I can build my house on any plot of land I just see sitting unused--after all shouldn't someone who's willing to make good use of something have rights over someone who just lets it lay around? That's a simple analogy, but the likelihood of me being able to convince a Congress person to let me do what I want with someone else's real property is just about zero. But somehow, I'm supposed to be happy when an infringer takes away my right to control my images.<br /><br />Right.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-29055544361823848232008-09-24T11:22:00.000-07:002008-09-24T11:54:17.079-07:00Legal Advice to WritersFor more years than I can remember, I've been answering questions on a site called <a href="http://www.hollywoodlitsales.com/">Hollywood Lit Sales</a>, which was founded by a client of mine. Sometimes I wish Howie would just put a FAQ under the <a href="http://www.hollywoodlitsales.com/questions/faq_it/">Ask a Hollywood Pro</a> section.<br /><br />The question I got today about writing a sequel to a film was actually on point, and I probably haven't answered it before, but many times I think I may need to break my fingers to avoid a snotty answer, many of which can be summarized below:<br /><br />1. That's not a legal question.<br />2. Do some research before you ask a question.<br />3. There are no shortcuts to success.<br />4. If you can't spell, use proper grammar, or write complete sentences, you have no business trying to be a screenwriter.<br />5. An idea cannot be protected by copyright.<br />6. There is no such thing as a "common law" copyright in the U.S. after 1977.<br />7. I've answered that before when you wrote in under a different name.<br />8. Why do you insult me by wasting my time?<br /><br />I know, I volunteered for this.<br /><br />I don't want to be mean or even discourage people from following their dreams, but the first rule of being a writer is to WRITE. And write some more. And even more. And know that rejection is a big part of the game. <br /><br />I can't count the number of people who have written to me saying they've got all these great ideas but they want someone else to write the script. Most real writers have more ideas than they can possibly deal with in their own lifetimes. They aren't interested in yours unless you can provide them with a great big bag of money and guaranteed credit. The people who write to me think they should be the ones who get the most money and credit.<br /><br />An answer I give a lot is "why did you start this work without a written agreement" to the people who are in the middle of an ugly break-up with a partner who may have been a co-writer or just the idea person. Then there's the similar question about what happens after the ugly break-up where one of the writers has gotten someone interested in actually buying the spec script and doesn't want to tell the purchaser about the other writer. Nothing will hurt that guy worse than trying to sell a lawsuit to a producer. It's as if they think a former co-writer won't notice. People in the mid-west follow box office. Writers follow sales.<br /><br />A screen writer needs a word processor, Final Draft, a printer, a ream of paper, and the delusion that he or she is talented.* A writing team also needs a written agreement about who gets first billing, how the credit will read, how the money will be split, and what happens in case of divorce.<br /><br /><span style="font-style: italic;">*Credit to Russell Myers for the two variations of a </span><span style="font-weight: bold; font-style: italic;">Broom-Hilda</span><span style="font-style: italic;"> strip featuring Gaylord Buzzard he did with a gap of about 25 years between them. The first one says "typewriter." My husband, writer Len Wein, keeps them both hanging near his desk.</span>Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-17098528861913632062008-06-25T10:40:00.000-07:002008-12-10T09:13:11.871-08:00Just Try to Keep This Plate SpinningOver the past few days, I've been hearing that the artist responsible for the image on one of the California license plates has been trying to renegotiate the terms under which the state gets to use the image. There's an article in the Los Angeles Times, which you can <a href="http://www.latimes.com/news/local/la-me-whale25-2008jun25,0,2723660.story">link to here</a>.<br /><br />There are plenty of mistakes that were made in this arrangement. First of all, it is described as a "handshake deal," which is always a mistake but more so with something that is on-going. Then Wyland, an artist whose murals I've seen in several places (but didn't connect with the license plate until this article) claims he can change the terms of whatever agreement he had because he's the artist and owner of the intellectual property. Uh, that's a pretty stupid statement in terms of business arrangements which were done on a hand-shake. He's claiming the "license" was only for a term that is now over. If that is true, he could indeed ask for different terms to extend the use and the state has the right to find another artist.<br /><br />If the new image looks too much like Wyland's, he might have a case for suing for copyright infringement but not if it's an independently created new image. Wyland doesn't have a monopoly on the idea of using a whale's tail to decorate a license plate for charitable purposes--despite the fact that the article quotes him as basing some of his claim on his "idea." Nope, only the expression is protected.<br /><br />Wyland now gets 10%<a onblur="try {parent.deselectBloggerImageGracefully();} catch(e) {}" href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjHTLxbHe40gIRh0lOe5Bs8i5GgfH09-8OEQK5bnIPf_WG7vs5aijhYWpqH8NyjL9RD2kFL9vmtsqMCfKrtLXGL9kd4uQvn2ng9iaee9EEMd29giychF95GSmawJY1icD0qJXBEIPm_aExh/s1600-h/plate3new.jpg"><img style="margin: 0pt 10px 10px 0pt; float: left; cursor: pointer;" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjHTLxbHe40gIRh0lOe5Bs8i5GgfH09-8OEQK5bnIPf_WG7vs5aijhYWpqH8NyjL9RD2kFL9vmtsqMCfKrtLXGL9kd4uQvn2ng9iaee9EEMd29giychF95GSmawJY1icD0qJXBEIPm_aExh/s320/plate3new.jpg" alt="" id="BLOGGER_PHOTO_ID_5215882375058010962" border="0" /></a> of the money for a plate he designed for Florida. Maybe he learned something about the value of his work after he did the California plate, got a real deal with Florida, and is trying to build on it. Apparently, Wyland wants to get 20% of the proceeds from the sale of the California plates to go to his own foundation--those of us in California pay a hefty premium every year to get these special plates and a nice portion of that goes to a particular charity or another. In the case of the whale tail, it goes to the California Coastal Conservancy. The photograph of the Wyland license plate appears at the left and it comes from the California Coastal Commission website.<br /><br />It will be interesting to see what happens with this dispute. I've got a button which reads "This job would be great if not for the clients" and I sure wouldn't want either of these clients knocking on my door. <br /><br />Here's my big advice for the day: even if it is for a cause you believe in, get the terms in writing. It protects both sides.<br /><br />Personally, I've got the picture of Yosemite on my plates.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-71635396065266342382008-06-24T15:06:00.000-07:002008-06-24T15:45:41.090-07:00What First Amendment?An article appeared in today's Los Angeles <span style="font-weight: bold; font-style: italic;">Times</span> about the problems caused by the presence of paparazzi in Malibu. <a href="http://www.latimes.com/news/la-me-malibu24-2008jun24,0,5937145.story?track=ntothtml">Here's the link</a>. The problem is not limited to Malibu--wherever young celebrities hang out, so do photographers looking for that money-making shot. Apparently, the photographers travel alone and in packs in Santa Monica, Beverly Hills, and on Robertson (Avenue, Street, or Boulevard, I'm not sure) where there are lots of trendy boutiques. <br /><br />Clearly, I don't go to many trendy places, because the only time I'm likely to see a swarm of photographers is when I'm walking a red carpet or when I'm in San Diego for Comicon, where the swarm follows the stars for their appearances. Last year, when David Beckham arrived in Los Angeles, I was driving home and saw a swarm of photographers along Pierce College's Victory Boulevard fence. Victoria Beckham was with the kids at a soccer match, so the little flies were buzzing. I'm not entirely sure it was legal for the school to keep the photographers at bay like that--it is a public school and it is, technically, public land. At least that's what the horse owners got told when we wanted to keep people from walking through the barns at Pierce and sticking their fingers in our horses' faces. Maybe Posh Spice smiled nicer than we did.<br /><br />Like the situation at Pierce, I'm not sure that the mayor of Malibu, who is now trying to craft a law to keep the paparazzi at bay in her "Mayberry-like" community. For good or ill, the paparazzi are a part of the press, whether they are freelancers or in the employ of an agency. It seems to me that there are already laws in place upon which a particularly intrusive photographer can be dissuaded from pursuing his or her career, such as those against trespass, assault, battery, reckless driving, or false imprisonment. <br /><br />While the main stream media often portrays the paparazzi as parasites, it seems that there is more of a symbiotic relationship between many of the paparazzi and their prey. People like Paris Hilton and Britney Spears would be long past their 15 minutes of fame but for their encouragement of the prying lenses. This isn't always the case. There are plenty of examples of the press or photographers actively goading celebrities into unflattering situations.<br /><br />I want to make it perfectly clear that I believe everyone is entitled to some privacy. I don't believe that everything a celebrity does is news or my business. Going to a premier is public and most actors are gracious under those circumstances. Going out to dinner with friends or the family or going grocery shopping? That's private. Leave them alone. No one can be on 24-7 (except maybe I do expect a President who is, but I'm sorely disappointed these days) and even people who make their living by being famous are entitled to down-time.<br /><br />California already has a law on the book by which a photographer can be prosecuted for invasion of privacy by using an extreme telephoto lens to get a picture within the confines of someone's home or yard. That may not be so bad, but finding a way to prevent reportage (and photographs are reportage, just like words are) because you don't like the "speakers" should face pretty high hurdles before enforcement. The problem is that many individual photographers aren't in any position to pay for the kind of legal fight opposing crippling legislation might cost. That's probably not a problem for TMZ and X17.<br /><br />I've been hearing rumblings about what the mayor of Malibu is trying to do for several weeks. I'll be keeping my eyes and ears open for a more definite ordinance.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-25143352270460270362008-06-14T16:07:00.000-07:002008-06-14T16:13:37.777-07:00June 20 Program on Copyright and Trademark Issues<div><span style="font-size:100%;"><span style="font-family:Times New Roman;">I'll be giving an overview of copyright and trademark issues concerning visual artists next Friday, June 20, for the Simi Valley Art Association. A couple of their members attended the program I did at Continental Art Supplies earlier this year and invited me to speak.<br /></span></span></div> <div><br /></div> <div><span style="font-size:100%;"><span style="font-family:Times New Roman;">The 7:00 PM session will be held at the Community Room of the Simi Valley Public Library at <span style="border-bottom: 1px dashed rgb(0, 102, 204); background: transparent none repeat scroll 0% 50%; -moz-background-clip: -moz-initial; -moz-background-origin: -moz-initial; -moz-background-inline-policy: -moz-initial;"><span style="color: black;">2969 Tapo Canyon Rd</span><span style="color: black;"> Simi Valley , CA 93063</span></span><span style="color: black;">.<span> Admission is free to students with accompanying adults. Non-SVAA members donate $7 at the door</span>. (Proceeds go to the art scholarship fund for high school students.) The room has capacity for 120 people. My presentation should start about 7:15, after they finish with preliminary matters. There's plenty of parking and it's easy to find as it's next to the city hall.<br /><br />So come on out and I can try to answer your copyright and trademark questions.<br /></span></span></span></div>Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-77111174364425531652008-04-24T08:59:00.001-07:002008-04-24T09:17:02.756-07:00Intellectual Property EstatesI 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.)<br /><br />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<a href="http://journal.neilgaiman.com/2006/10/important-and-pass-it-on.html"> here</a>.) 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 <a href="http://files.neilgaiman.com/SIMPLEWILL.pdf">here</a>. These are the suggestions Mr. Klinger makes:<br /><br /><strong><em>1) Recopy the document ENTIRELY by hand, date it, and sign it at the end. No witnesses required.</em><br /><em></em><br /><em>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!</em></strong><br /><br />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.<br /><br />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.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-71141535064803535642008-04-23T08:40:00.000-07:002008-04-23T09:09:13.249-07:00A New Twist on InfringementOver at <a href="http://pwbeat.publishersweekly.com/blog/">The Beat</a>, 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 <a href="http://pwbeat.publishersweekly.com/blog/2008/04/22/immonen-reports-rip-off/">here</a>, with links to the offended website.<br /><br />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.<br /><br />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.<br /><br />The <a href="http://www.copyright.gov">Copyright Office website</a> has forms and instructions. The <a href="http://www.loc.gov">Library of Congress</a> 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.<br /><br />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.<br /><br />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.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0tag:blogger.com,1999:blog-9055198755190312588.post-80474531787545050262008-03-06T10:35:00.000-08:002008-03-06T10:37:07.289-08:00Copyright & Trademark LectureThe <span style="font-weight: bold;">California Lawyers for the Arts</span> called yesterday and asked me to give a talk on "Copyright and Trademark Basics for Visual Artists," something I could probably do in my sleep since I've done so many of them. <br /><br />This <span style="font-style: italic;">free</span> brown-bag lunch event is at Continental Art Supplies, 7041 Reseda Boulevard, Reseda, California on March 17, 2008. On-site registration is at 11:15 a.m. and the talk is scheduled from 11:30 a.m. to 1 p.m. Call California Lawyers for the Arts at 310-998-5590 or e-mail them at UserCLA@aol.com. Space is limited to 25 people.<br /><br />See you there, I hope.Photo Lawyerhttp://www.blogger.com/profile/14251946913032036788noreply@blogger.com0