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© © Copyright and Copyright and Licensing Licensing Issues Issues Donald R. Simon, Donald R. Simon, J.D./LL.M. J.D./LL.M.
| Date post: | 28-May-2015 |
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©©Copyright and Copyright and
Licensing IssuesLicensing Issues
Donald R. Simon, Donald R. Simon, J.D./LL.M.J.D./LL.M.
Copyright Law
• Part of an area of law called “intellectual Part of an area of law called “intellectual property:” original works created as a property:” original works created as a result of intellectual activities.result of intellectual activities.
Copyright Law
• Copyright (“CR”): exclusive right of Copyright (“CR”): exclusive right of control over literary or artistic creations.control over literary or artistic creations.
• Primary purpose of CR is to give creators Primary purpose of CR is to give creators economic incentive so that society will economic incentive so that society will benefit from creative production.benefit from creative production.
Copyright Law
• Elements of a CRElements of a CR::
““Original work of authorship that is fixed in a Original work of authorship that is fixed in a tangible medium of expression.”tangible medium of expression.”
1.1. OriginalityOriginality
2.2. Work of AuthorshipWork of Authorship
3.3. FixationFixation
Copyright Law
• Elements of a CRElements of a CR::
““Original work of authorship that is fixed in a Original work of authorship that is fixed in a tangible medium of expression.”tangible medium of expression.”
• CR protection begins CR protection begins at the moment of at the moment of creationcreation..
• No registration or notice requirements to have No registration or notice requirements to have a valid CR, but are significant for other a valid CR, but are significant for other reasons.reasons.
Copyright Law
• Once the elements are met, CR owners Once the elements are met, CR owners get get virtual monopoliesvirtual monopolies over their works: over their works:
1.1. To To reproducereproduce the work in copies; the work in copies;
2.2. To prepare To prepare derivative worksderivative works;;
3.3. To To distribute distribute copies;copies;
Copyright Law
• Once the elements are met, CR owners Once the elements are met, CR owners get get virtual monopoliesvirtual monopolies over their works: over their works:
4.4. To To performperform the work publicly; and the work publicly; and
5.5. To To display display the work publicly.the work publicly.
Copyright Law
• Unless you are an employee or have Unless you are an employee or have contractually transferred ownership, you contractually transferred ownership, you become the owner of rights when you become the owner of rights when you create the photo or image.create the photo or image.
• Infringement occurs when one or more of Infringement occurs when one or more of these exclusive rights area violated.these exclusive rights area violated.
Copyright Licenses
Copyright Licenses
• One of the primary values of owning CR One of the primary values of owning CR rights is the ability to transfer some or all rights is the ability to transfer some or all of those rights to 3rd parties.of those rights to 3rd parties.
• Transfers can be for all of the CR rights in Transfers can be for all of the CR rights in a work (an “assignment”), or can be for a a work (an “assignment”), or can be for a limited portion of the rights (a “license”).limited portion of the rights (a “license”).
Copyright Licenses
• Licenses are one of the primary ways in Licenses are one of the primary ways in which photogs make money from their which photogs make money from their images.images.
• Also referred to as “usage rights.”Also referred to as “usage rights.”
Copyright Licenses
• CR licenses can take several forms:CR licenses can take several forms:
1.1. Exclusive Exclusive
2.2. Non-exclusive; orNon-exclusive; or
3.3. A combination of the two.A combination of the two.
Copyright Licenses
• License agreements:License agreements:
– Should be in writing.Should be in writing.
– Include names of the parties.Include names of the parties.
– Description of the property under license.Description of the property under license.
– Fee or royalty amount (or buyout structure). Fee or royalty amount (or buyout structure).
Copyright Licenses
• License agreements:License agreements:
– Mention that rights only transfer with full Mention that rights only transfer with full payment.payment.
– Provide for the recovery of attorney’s fees.Provide for the recovery of attorney’s fees.
– Rights not expressly granted are reserved to Rights not expressly granted are reserved to the artist.the artist.
Infringement “Excuses”
Infringement “Excuses”
• When someone infringes your CR, they When someone infringes your CR, they usually offer some excuse to try to avoid usually offer some excuse to try to avoid liability.liability.
• Many excuses appear compelling on the Many excuses appear compelling on the surface, but don’t stand up to the law.surface, but don’t stand up to the law.
• Here are a few…Here are a few…
Infringement “Excuses”
• ““I didn’t post the photo ˗ my website I didn’t post the photo ˗ my website designer did.”designer did.”
– ResponseResponse: Ignorance isn’t an excuse to : Ignorance isn’t an excuse to infringement, particularly when it’s your job infringement, particularly when it’s your job to hire or otherwise supervise the infringer.to hire or otherwise supervise the infringer.
Infringement “Excuses”
• ““The infringement was a mistake.”The infringement was a mistake.”
– ResponseResponse: You didn’t have to intentionally or : You didn’t have to intentionally or willfully infringe to be liable for infringement.willfully infringe to be liable for infringement.
• A mistake will not only not preclude liability, it may A mistake will not only not preclude liability, it may not be reasonable and willfulness could still be not be reasonable and willfulness could still be found by the court.found by the court.
• ““I gave credit to the photog.”I gave credit to the photog.”
– ResponseResponse: Many mistakenly assume that : Many mistakenly assume that they may use a photo so long as they they may use a photo so long as they acknowledge the photog or otherwise acknowledge the photog or otherwise provide the source of the photo.provide the source of the photo.
• While this might work for plagiarism purposes, it While this might work for plagiarism purposes, it doesn’t excuse potential CR liability.doesn’t excuse potential CR liability.
Infringement “Excuses”
Infringement “Excuses”
• ““If it’s on the web, then it’s public domain If it’s on the web, then it’s public domain unless clearly marked otherwise.”unless clearly marked otherwise.”
– ResponseResponse: The urban myth that if it’s on the : The urban myth that if it’s on the web, it’s free, it not true.web, it’s free, it not true.
• CR vests in a work when it is created.CR vests in a work when it is created.
• A CR notice is not required to preserve a work’s A CR notice is not required to preserve a work’s CR protection.CR protection.
Infringement “Excuses”
• ““I got the image from Google.”I got the image from Google.”
– ResponseResponse: Many infringers claim that they : Many infringers claim that they didn’t know that the photo was protected by didn’t know that the photo was protected by CR because they copied it from a Google CR because they copied it from a Google Images search.Images search.
• Even Google explains this in their disclaimers that Even Google explains this in their disclaimers that images may be protected by CR.images may be protected by CR.
Infringement “Excuses”
• ““I only used part of it, so it’s fair use.”I only used part of it, so it’s fair use.”
– ResponseResponse: Using a small part of a CRed : Using a small part of a CRed work is only one factor considered by a work is only one factor considered by a court under the fair use doctrine, but the court under the fair use doctrine, but the amount of use alone is not enough to amount of use alone is not enough to excuse infringement.excuse infringement.
• The safest thing is to get a license to use a photo.The safest thing is to get a license to use a photo.
Infringement “Excuses”
• ““I didn’t make any money from the I didn’t make any money from the infringement.”infringement.”
– ResponseResponse: Making money is irrelevant when : Making money is irrelevant when determining an infringement.determining an infringement.
• If you reproduce, display, distribute and/or create a If you reproduce, display, distribute and/or create a derivative work of the photo without authority of derivative work of the photo without authority of the CR owner or the law, then you have committed the CR owner or the law, then you have committed infringement.infringement.
Protecting Your Works
Protecting Your Works
• Besides registering the CRs with the CR Besides registering the CRs with the CR Office, there are numerous common Office, there are numerous common sense ways to protect your work.sense ways to protect your work.
• Some methods work better than others.Some methods work better than others.
Protecting Your Works
• Short of avoiding posting material on the Short of avoiding posting material on the Internet all together, nothing is 100% Internet all together, nothing is 100% foolproof. foolproof.
• You’ll need to find the right technique You’ll need to find the right technique that thwarts Internet thievery but doesn't that thwarts Internet thievery but doesn't inconvenience potential clients.inconvenience potential clients.
Protecting Your Works
• If someone is bound and determined to If someone is bound and determined to steal your work, they will stop at nothing.steal your work, they will stop at nothing.
• You don’t have to make it easy for them!You don’t have to make it easy for them!
Protecting Your Works
1.1. Watermark or emboss your photos or Watermark or emboss your photos or images. images.
– Use some kind of easily identifiable mark, Use some kind of easily identifiable mark, such as your name along with the © symbol.such as your name along with the © symbol.
Protecting Your Works
2.2. Post small, low-res photos or images.Post small, low-res photos or images.
– These are much harder to copy.These are much harder to copy.
Protecting Your Works
3.3. ““Shrinkwrap” your photos and images.Shrinkwrap” your photos and images.
– Adding a clear filter layer over the work. Adding a clear filter layer over the work.
– Visitors can still see the image but it cannot Visitors can still see the image but it cannot be so easily copied.be so easily copied.
Questions?
Contact Me:
• PhonePhone: 816.728.6948: 816.728.6948
• EmailEmail: : [email protected]@simonbizconsulting.com
• TwitterTwitter: : @simonbizconsult@simonbizconsult
• WebWeb: : simonbizconsulting.comsimonbizconsulting.com
THANK YOU! THANK YOU!
Attention:
This presentation is provided as a This presentation is provided as a source of information and is not to be source of information and is not to be construed as legal advice or opinion, or construed as legal advice or opinion, or to form an attorney-client relationship.to form an attorney-client relationship.
For legal advice, please consult an For legal advice, please consult an attorney.attorney.
