At t o r n e y At L aw

381-8888 (206)

Timothy McCormack

I N V E N T I V E

N v e n t I

E X P E R I E X P E R I E N C E D

617 Lee Street, Seattle WA 98109

I M A G I N A T I V E

Copyright Cow™…..

Defending the American Dream

FREE PRESS BOOKS TRADE SECRETS AND CO.

SEATTLE ● INTERNET ● EARTH

The Copyright Cow Blog focuses on the untold stories of the second largest export of the United States – intellectual property and tech-nology – through the lenses of law, economics (freaky-economics) and society.

Intellectual property is comic books, cartoon characters, the “Book of Life” embodied in the Human Genome, medicine, technology, movies, websites, and, for example, the business of producing and distributing milk (a Copyright Cow favorite).

The Copyright Cow BLOG is not only for your local dairy farmer / rancher in Washington state. It is also for the CEOs of Microsoft, Boeing and Getty Images. Although Copyright Cow is a great read for any business owner, it is also good for mothers and fathers, teachers and students and anyone who wants to know more about the legal and economic forces shaping 21st century America.

The law can decide, who lives and who dies; who eats and who starves. Who gets the latest HIV medication and who does not? Who owns the critical intellectual property that, literally, holds the key to life and death for over 50 million people?

What about the economic and social forces that help to shape the law and also result in both prosperity and misfortune?

With the help of Copyright Cow, we will all be better prepared to

answer these questions, shape a better future and hopefully be a

little happier! With your help, the reader, Copyright Cow can con-

tinue to help defend the American Dream!

DISCLAIMER: This magazine is not intended to give legal

advice and is not a substitute for the same; if the reader

has a concern they should contact a knowledgeable

attorney.

FOUNDER & PUBLISHER:

Timothy B. McCormack

CONTRIBUTORS:

Timothy McCormack

Eric Harrison

Lucas Michaels

GENERAL REQUESTS:

tim@mccormacklegal.com

PUBLISHING/ADVERTISEMENTS:

tim@mccormacklegal.com

Also by Timothy McCormack:

With permission from:

Timothy B. McCormack

INTELLECTUAL PROPERTY: Trademarks Copyrights Patent Litigation Trade Secrets

Email: tim@mccormacklegal.com

617 Lee Street, Seattle WA 98109

206.381.888

Experienced Intellectual Property Lawyer for Over 11Years

LITIGATION: Federal Court

State Court

Trial and Appeals

A MEMBER OF:

• Washington, Oregon and Idaho State Bar • Washington Patent Law Association

Intellectual Property Questions? PROTECT WHAT IS YOURS

Licensing

Advertising Law

Internet Law

Information Law

Copyright Infringement I didn’t Know!

Copyright

infringement

can occur

willfully or

“accidentally,

” but copy-

right law

prohibits

both.

One federal

court recent-

ly held,

“there is no

need to

prove any-

thing about a

defendant’s

mental state;

Copyright

Infringement

is a strict lia-

bility tort.” A

strict liability

tort is a legal

wrong that

does not re-

quire a

“mental in-

tent.”

Mere unauthorized use of a pic-ture downloaded from the Inter-net (even from a “free site”) is enough to create liability for a business using the copyrighted work without permission. This is true, regardless of how the in-fringement came about. Typical copyrighted works that get busi-nesses into trouble include imag-es and text “acquired” from the Internet.

Copyright infringement can occur

willfully or “accidentally,” but

copyright law prohibits both. One

federal court recently held, “there

is no need to prove anything

about a defendant’s mental state;

[copyright infringement] is a strict

liability tort.” A strict liability tort

is a legal wrong that does not

require a “mental intent.”

In other words, a copyright own-er, does not need to prove a de-

fendant intentionally infringed the copyright in order to create liability because it is a “strict lia-bility” tort [1]. If you copy a pic-ture from the Internet without permission, for example, you can be liable for damages even if you did not know the picture was cop-yrighted. That is the essence of “strict liability.”

Further, if you hire someone (an employee or an independent con-tractor or a web designer) you are also liable for using a pictures posted to your website by that third party even if you did not know what they did. Said another way, the business displaying the copyrighted work without permis-sion on their website is liable as the end user.

In fact, two or more people can

be liable for the same act or acts

of copyright infringement. This is

called “joint liability.” If parties

have joint liability, then they are

each liable up to the full amount

of the damages. Courts have

found joint liability in such cir-

cumstances as a corporation’s

president being jointly liable for

publication of imagery from a CD-

Rom. Other examples include

website owners held liable for a

third-party uploading content on

their website (owner of website,

infringed copyrights by distrib-

uting copyrighted photographs,

even when website operator did

not know that the photographs

had been uploaded onto web-

site).

If your web designer is liable so

are you. Sadly, the party with the

deepest pockets is the one that

will likely get sued.

In most cases that is the busi-

ness owner that hired the web

designer. The damages for this

type of infringement can also

be quite steep.

Under federal law, a copyright

owner can be entitled to a

$750 to $30,000 per infringe-

ment. If it is shown that the

infringement is willful the law

allows as much as $150,000

per infringement.

If you copy a

picture from

the Internet

without

permission,

for example,

you can be

liable for

damages even

if you did not

know the

picture was

copyrighted.

Double check your business insurance poli-

cies to make sure you are covered for

“advertising” injuries because these types

of claims can sneak up on you and in many

cases you might be completely unaware of

latent liabilities. Lastly make sure you have

a good contract with any website develop-

er and use only reputable companies. A

development company located abroad

might seem cheap until you get served

with a copyright infringement lawsuit. ■

[1] Educational Testing Service v. Simon, 95 F.

Supp. 2d 1081, 1087 (C.D. Cal. 1999) (holding

copyright infringement occurred because the

C O P Y R I G H T C O W ™ D E F E N D I N G T H E A M E R I C A N D R E A M !

Recent jury awards have ranged from

$675,000.00 to in excess of $1 Million dollars

in damages for copyright infringement. One

recent jury in Western Washington awarded

over one-million dollars in damages for unau-

thorized use of as few 5 photographs or imag-

es. In another recent case a jury awarded

$675,000 for infringing as few as 30 copyright-

ed works. The old adage, “ignorance of the law

is never an excuse” applies to copyright law

because even if you didn’t know, you might

still be liable.

In some cases a standard business liability in-

surance policy (“slip and fall” policies) will cov-

er copyright infringement claims made against

a business. This is called “advertising insur-

ance.” Ask your insurance agent if you have

such coverage or consult a knowledgeable in-

tellectual property or insurance lawyer can

help determine if you have such coverage.

Above all, do not use copyright content with-

out permission. A good general rule of thumb

is, “if you did not take the picture, it is not

yours.”

Copyright Cow™ is the Blog and alter-ego-Blogger name

for Timothy B. McCormack, a well established and suc-

cessful Seattle-based intellectual property, technology

and business lawyer.

This blog provides is not intended to give legal advice

and is not a substitute for the same; if the reader has a

concern they should contact a knowledgeable attorney.

ABOUT COPYRIGHT COW™

At t o r n e y At L aw

381-8888 (206)

Timothy McCormack

I N V E N T I V E

N v e n t I

E X P E R I E X P E R I E N C E D

617 Lee Street, Seattle WA 98109

I M A G I N A T I V E

Trademarks

Copyrights

Patent Litigation

Trade Secrets

Licensing

Advertising Law

Internet Law

Information Law

A MEMBER OF:

• Washington, Oregon and Idaho State Bar

• Washington State Patent Law Association

Registered to practice before the United States Supreme Court, Federal Circuit Court, Ninth Circuit Court of Appeals, and Federal Court for the Western District of Washington

When it comes to your Intellectual Property

EXPERIENCE MATTERS.

Timothy B. McCor-

LITIGATION / CIVIL DISPUTES • Federal Court, State Court, Trial and Appeals

Experienced IP Attorney for Over 11 Years

206-381-8888 • Email: tim@mccormacklegal.com

617 Lee Street, Seattle WA 98109

INTELLECTUAL PROPERTY:

Timothy B. McCormack Attorney at Law

206-381-8888

Email: Tim@McCormackLegal.com

617 Lee Street, Seattle WA 98109

Intellectual Property Questions?

McCormack Intellectual

Property Law P.S.

206.381.888www.mccormacklegal.com 617 Lee Street, Seattle WA

98109

Call

Today!

We provide strategic planning, patent and trademark portfolio manage-

ment / development, domestic and international technology licensing,

patent position competitive analysis, technology and collaboration

agreements, technology audits, due diligence studies, cease and desist

letters, and invalidity / non-infringement opinions. We represent indi-

vidual inventors, artists, emerging technology companies, and mature

multinational corporations in matters relating to the procurement and

enforcement of domestic and foreign intellectual property rights.

We recognize that each of our clients'’ needs are unique. This, we ad-

here to an individualized approach whereby the needs of each client

are addressed in accordance with their particular business objectives.