Photo District News ran an article 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 The Los Angeles Times for copyright infringement.
The facts, according to the article, are that for a number of years Mr. Strick had a contract with the Times 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 Times 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.
For as long as I was an active member of the American Society of Magazine Photographers, and probably even now, the ASMP 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 Graphic Artists Guild forms as well, and for many of the generic forms available to photographers and artists.
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 California Lawyers for the Arts, 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 JAMS, 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.
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.
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.
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.
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 JAMS.
If you are in love with arbitration or mediation anyway, try to specify California Lawyers for the Arts as your dispute resolution organization. It will certainly be cheaper and faster than JAMS and the arbitrators may actually know something about the business of photography or the other arts.
Showing posts with label Copyright Infringement. Show all posts
Showing posts with label Copyright Infringement. Show all posts
Friday, June 29, 2012
Wednesday, May 16, 2012
Copywriting v. Registering a Copyright
Copywriting 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.
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.
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 here.
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.
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.
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.)
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.
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.
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.
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.
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.
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.
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.
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.)
Questions?
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.
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 here.
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.
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.
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.)
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.
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.
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.
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.
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.
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.
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.
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.)
Questions?
Wednesday, May 19, 2010
Wannabe Writer v. Avatar
I had a couple of calls from people seeking legal advice before Avatar 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 this law suit which has been filed. 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.
There are legitimate cases where work has been stolen and the plaintiff prevails. The Northern Exposure case won by Glen Kulik always comes to mind. And Harlan Ellison had a famous run-in with James Cameron over Terminator (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 Brillo, which I hear led to a billboard near Paramount for a while (again, before he was my client.)
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.)
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.
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.
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.
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.
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 Star Wars had a mining planet) etc., etc., etc. The stranger in a strange land concept goes back to the Bible and probably beyond (the phrase comes from the Bible.) 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.)
I haven't seen Avatar, 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.
Among the material I've seen people cite as source material for Avatar's plot and other elements are Dances with Wolves, Pocahontas and Ursula K. LeGuin's Earthsea stories. When I finally get around to watching it, I may have some suggestions to add.
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.
There are legitimate cases where work has been stolen and the plaintiff prevails. The Northern Exposure case won by Glen Kulik always comes to mind. And Harlan Ellison had a famous run-in with James Cameron over Terminator (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 Brillo, which I hear led to a billboard near Paramount for a while (again, before he was my client.)
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.)
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.
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.
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.
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.
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 Star Wars had a mining planet) etc., etc., etc. The stranger in a strange land concept goes back to the Bible and probably beyond (the phrase comes from the Bible.) 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.)
I haven't seen Avatar, 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.
Among the material I've seen people cite as source material for Avatar's plot and other elements are Dances with Wolves, Pocahontas and Ursula K. LeGuin's Earthsea stories. When I finally get around to watching it, I may have some suggestions to add.
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.
Thursday, November 12, 2009
Fairey's New Hope
Here's an article 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."
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.
Fairey took the whole of the work.
Applying a posterizing filter in Photoshop is so not transformative.
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.
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.)
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.
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.
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."
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.
Fairey took the whole of the work.
Applying a posterizing filter in Photoshop is so not transformative.
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.
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.)
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.
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.
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."
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.
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.
Wednesday, December 20, 2006
And the Geek Shall Inherit the Earth
I went off to law school in 1989 to study copyright law. My mentor, a fine lawyer in D.C. who specialized in that discipline, called it geek law: most people don't understand it and it's an area in which most people have no interest. The first part is still true but the second is far from true. I'd be rich if I got a penny for every time I've heard or read mangled copyright or trademark law reporting, but the point is that intellectual property law makes the news on a regular basis these days. In part, that is because intellectual property is the only reason the U.S. has a balance of trade in its favor.
I read Sunday's paper and found a large piece about X17, Inc. suing publicity whore Perez Hilton for copyright infringement. Hilton is quoted about defending his rights and the rights of all bloggers to make "satirical or humorous use of newsworthy photographs." So far, what I've been able to gleen from the reports is that Hilton is making, at best, unauthorized derivative photographs and, at worst, committing a classic case of copyright infringement by reproducing, without permission, photographs copyrighted by X17, Inc.
The legislative history of the 1909 Copyright Act makes it quite clear that publishers like Joseph Pulitzer wanted to appropriate photographs deemed newsworthy without payment to photographers. That effort was actually rejected by Congress thanks to the efforts of independent photographers. If you can find a copy of the 1909 Act's legislative history, it is all there in black and white. I read it in law school when I was writing a paper on work made for hire. People like Perez and corporations which don't want to actually pay for the use of copyrighted material are making that argument all over again and the Internet has definitely contributed to this misdirected sense of entitlement.
Fortunately, the "fair use" provisions of the 1976 act are fact specific, and Mr. Perez's attorney will have a tough fight on his hands if X17, Inc.'s lawyer does his homework.
I'm hoping that the actual filings will be available to read on line. I'm very curious about the calculation of damages, which will shed some light on what business practices X17, Inc. follows.
The reports have stated that the damages claimed are $7.6 million for the unauthorized use of 51 photographs. That's approximately $150,000, or the upper reach of statutory damages, per image. In order to qualify for statutory damages, X17, Inc., must have registered the copyright to each of those images within 90 days of creation OR prior to the first infringement by Hilton. If Hilton's infringement occurred within 90 days of the creation of the photographs and they hadn't been registered at that point, X17, Inc. could still preserve statutory damages by registering the work before the end of that 90 day period. Unfortunately, the law doesn't adequately address the question of what happens when a work is illegally appropriated for publication and this first (unauthorized) publication occurs longer than 90 days after creation.
Lessons to take to heart: If you put it on the Internet, consider it published. Before you put it on the Internet, do a group registration of everything you shot in a session by putting it on a cd or dvd and sending it to the Copyright Office with the appropriate check and get it registered. Registration gets you the right to ask for statutory damages and attorneys' fees (which can be greater than the actual damages, believe me.) Set up a system in your studio for a 60 day registration cycle to take advantage of group registration. All the information and forms you need can be found at http://www.copyright.gov. Someday, we'll actually be able to do registration and deposit on line, but that's not here yet.
Very few creators actually take the time to properly register their work and fewer yet have made the effort to engage in the systematic registration (and, if necessary, renewal) of their copyright interests. This is the key to the courthouse door.
Failing to register the work prior to the infringement is not a bar to litigation, just to statutory damages and attorneys' fees for plaintiffs (about which more some other time.) That means that X17, Inc. can register the 51 images after Hilton's infringement, but X17, Inc. can't ask the court for attorneys' fees and must prove the measure of actual damages for recovery from Hilton. They may be able to do this based on cancelled licenses or license fees already collected on similar images. Reaching actual damages equal to the statutory $150,000 per image will be tough because it is unlikely that every one of the 51 infringed images has equal value in the marketplace or even value close to $150,000 per infringement. I don't doubt that X17, Inc. makes considerable money from the photographs in which they specialize, but I think they will face a good deal of bias from a court or jury who simply doesn't like what they do, even if the individual judge or jury member gawks over a copy of the National Enquirer featuring X17, Inc. pictures.
Unfortunately, very few lawyers actually understand the business of photography and even fewer judges do. That's why there have been a number of reported rulings which have been extremely detrimental to photographers. Some are so bad that I wonder what the point of registration is if the courts won't recognize the inherent contractual relationship created by copyright registration: the creator pays $XX and U.S. law protects the creator from thieves. Big companies can shoulder the cost of copyright litigation, and often win by force of brute strength (Disney's great at this), but individual creators or small companies have a much harder row to hoe even if every fact and the law is on their side.
The American Society of Media Photographers (ASMP, and you'll see those letters a lot here) has made a concerted effort to support litigation to advance photographer's rights over the past 25 years. It has a network of attorneys who are knowledgeable about copyright law and the business of photography and many of them are willing to give advice to other attorneys who are handling copyright matters. It is better to quash this at the summary judgment stage than having to carry it on appeal.
I'm wondering if Mr. Hilton violated the DMCA by hacking his way past protections that X17, Inc. had in place to prevent infringement. That could be an interesting element of the pleading.
I read Sunday's paper and found a large piece about X17, Inc. suing publicity whore Perez Hilton for copyright infringement. Hilton is quoted about defending his rights and the rights of all bloggers to make "satirical or humorous use of newsworthy photographs." So far, what I've been able to gleen from the reports is that Hilton is making, at best, unauthorized derivative photographs and, at worst, committing a classic case of copyright infringement by reproducing, without permission, photographs copyrighted by X17, Inc.
The legislative history of the 1909 Copyright Act makes it quite clear that publishers like Joseph Pulitzer wanted to appropriate photographs deemed newsworthy without payment to photographers. That effort was actually rejected by Congress thanks to the efforts of independent photographers. If you can find a copy of the 1909 Act's legislative history, it is all there in black and white. I read it in law school when I was writing a paper on work made for hire. People like Perez and corporations which don't want to actually pay for the use of copyrighted material are making that argument all over again and the Internet has definitely contributed to this misdirected sense of entitlement.
Fortunately, the "fair use" provisions of the 1976 act are fact specific, and Mr. Perez's attorney will have a tough fight on his hands if X17, Inc.'s lawyer does his homework.
I'm hoping that the actual filings will be available to read on line. I'm very curious about the calculation of damages, which will shed some light on what business practices X17, Inc. follows.
The reports have stated that the damages claimed are $7.6 million for the unauthorized use of 51 photographs. That's approximately $150,000, or the upper reach of statutory damages, per image. In order to qualify for statutory damages, X17, Inc., must have registered the copyright to each of those images within 90 days of creation OR prior to the first infringement by Hilton. If Hilton's infringement occurred within 90 days of the creation of the photographs and they hadn't been registered at that point, X17, Inc. could still preserve statutory damages by registering the work before the end of that 90 day period. Unfortunately, the law doesn't adequately address the question of what happens when a work is illegally appropriated for publication and this first (unauthorized) publication occurs longer than 90 days after creation.
Lessons to take to heart: If you put it on the Internet, consider it published. Before you put it on the Internet, do a group registration of everything you shot in a session by putting it on a cd or dvd and sending it to the Copyright Office with the appropriate check and get it registered. Registration gets you the right to ask for statutory damages and attorneys' fees (which can be greater than the actual damages, believe me.) Set up a system in your studio for a 60 day registration cycle to take advantage of group registration. All the information and forms you need can be found at http://www.copyright.gov. Someday, we'll actually be able to do registration and deposit on line, but that's not here yet.
Very few creators actually take the time to properly register their work and fewer yet have made the effort to engage in the systematic registration (and, if necessary, renewal) of their copyright interests. This is the key to the courthouse door.
Failing to register the work prior to the infringement is not a bar to litigation, just to statutory damages and attorneys' fees for plaintiffs (about which more some other time.) That means that X17, Inc. can register the 51 images after Hilton's infringement, but X17, Inc. can't ask the court for attorneys' fees and must prove the measure of actual damages for recovery from Hilton. They may be able to do this based on cancelled licenses or license fees already collected on similar images. Reaching actual damages equal to the statutory $150,000 per image will be tough because it is unlikely that every one of the 51 infringed images has equal value in the marketplace or even value close to $150,000 per infringement. I don't doubt that X17, Inc. makes considerable money from the photographs in which they specialize, but I think they will face a good deal of bias from a court or jury who simply doesn't like what they do, even if the individual judge or jury member gawks over a copy of the National Enquirer featuring X17, Inc. pictures.
Unfortunately, very few lawyers actually understand the business of photography and even fewer judges do. That's why there have been a number of reported rulings which have been extremely detrimental to photographers. Some are so bad that I wonder what the point of registration is if the courts won't recognize the inherent contractual relationship created by copyright registration: the creator pays $XX and U.S. law protects the creator from thieves. Big companies can shoulder the cost of copyright litigation, and often win by force of brute strength (Disney's great at this), but individual creators or small companies have a much harder row to hoe even if every fact and the law is on their side.
The American Society of Media Photographers (ASMP, and you'll see those letters a lot here) has made a concerted effort to support litigation to advance photographer's rights over the past 25 years. It has a network of attorneys who are knowledgeable about copyright law and the business of photography and many of them are willing to give advice to other attorneys who are handling copyright matters. It is better to quash this at the summary judgment stage than having to carry it on appeal.
I'm wondering if Mr. Hilton violated the DMCA by hacking his way past protections that X17, Inc. had in place to prevent infringement. That could be an interesting element of the pleading.
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