Working with People who Don’t Understand Copyright

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Sentinel vs. Jawa (88/365) by JD Hancock from Flickr (Creative Commons License)

Here’s the scenario: You are a newly hired third party content creator for a company. You learn that your client has a habit of copying pictures from Pinterest or Google Images searches without verifying that they are allowed to use the images on their website and/or social media posts. They want you to do the same. What should you do?

Option #1: Your Client Needs an Education about Copyright
Some people truly believe they can use any image they find on the internet, particularly if they give an attribution and a link back to the original. There are so-called “gurus” who will tell you this is ok. It’s not.

What your client is likely doing is committing copyright infringement. Inform your client that he/she is running the risk of getting a cease and desist letter, a bill with a license, or a lawsuit. In the worst-case scenario, they could face a lawsuit for $150,000 per image they use, plus attorneys’ fees. Tell your client to thank their lucky stars they haven’t faced one of these consequences yet and advise them that the prudent thing to do would be to replace all images on their site with pictures they can legally use.

Use this an a teaching experience to educate your client about the importance of asking permission, using Creative Commons, and possibly exploring whether what they are doing in some situations qualifies as fair use.

Option #2: Your Client Understands but Disregards Others’ Copyright Rights
Fire your client.

This person is obviously an idiot. No money is worth being affiliated with this company. Run away as fast as you can.

Footnote: Every company should have a “No Jerks” rule when it comes to employees and clients. If you find someone violating this rule at a genetic level (not just having a bad day), cut all ties with them immediately.

The same rules about copyright that apply to your website also apply to your social media posts:

Whenever I work on a contract for the relationship between a company and an outside content provider, I always recommend that my client require an indemnity clause that will protect them if they are accused of intellectual property infringement based on material provided by the other party. Your contract is the master document for your working relationship. It should clearly define the parties’ obligations to each other which should include deadlines and deliverables and also how you will resolve problems when they occur.

If you want to know more about the complex issues related to copyright and the internet, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about this topic, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

Trademark Registration Workshop for Bloggers

The Anxious Type by JD Hancock from Flickr (Creative Commons License)

The Anxious Type by JD Hancock from Flickr (Creative Commons License)

I’ve been on my soapbox for a while about the importance of registering your trademark if you have a blog. Even if your following is small, you want to stake a claim to your site’s name because if someone registers your name before you, they can essentially shut down your site. If they register your name as a trademark after you’ve started your site, you don’t have to shut down your site, but you can’t grow you market.

This is not a new problem but it is getting more complicated in the online world. The most infamous trademark story I know in the brick-and-mortar world is about two different Burger King restaurants. The most infamous situation in the blogosphere is the Turner Barr situation:

When I speak at social media and blogging conferences, I encourage everyone who has a blog to register their site’s trademark with the U.S. Patent and Trademark Office (USPTO). (Ditto for vlogs and podcasts.) A lot of people agree that it’s a good idea; however most people don’t follow through and do it.

The #1 reason I hear why most people don’t register their trademark: the cost.

I’m not going to lie. Registering a trademark is expensive. The filing fee alone is at least $225. But what would suck more – paying for a trademark or having to rebrand because someone else registered it – especially if your plans include making money off your site?

I am almost through the process of registering the trademark for my blog, The Undeniable Ruth. It’s got me thinking that I could do small workshops with bloggers (3-5 participants) that includes an overview of trademarks and then I could lead them through the process of filling out the USPTO trademark application during the session, and then shepherd their applications through the rest of the process. Since it would be in a group setting, I could charge half the price of what I’d normally charge to submit an application for a client (only $499 instead of $1,000).

Interested? Please fill out the form below and if there’s enough interest, I’ll schedule a workshop.

 

If you want to know more about the legalities of blogging, please watch my Q&A keynote from TechPhx or check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.  You can also contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

When “I’m Sorry” Isn’t Enough

Sorry Bout That! by Anne-Sophie Ofrim

Sorry Bout That! by Anne-Sophie Ofrim

I’ve encountered a significant number of people in my short legal career who were under the impression that they could absolve themselves from legal wrongdoings by simply apologizing. Unfortunately for them, that is often not the case.

When I first meet with a client, especially in situations where they suspect their intellectual property has been infringed, I start by asking, “How do you want this to end?” Their answer will inform me what I need to do to try to get their desired result (and if that result is available).

Sometimes my client simply wants the alleged infringer to stop using their work. That requires a cease and desist letter from me and the recipient to cease and refrain from using the material in question. An apology isn’t even required. However, if my client wants money, and my evaluation of their case shows that they are eligible to collect, “I’m sorry” will not be enough to resolve the situation.

In general, once lawyers are involved, “I’m sorry” is not going to be enough to fix the situation. If a person hires a lawyer, they are usually investing hundreds of dollars in an attempt to seek their preferred resolution. Very few people are willing to pay that amount just for an apology.

In my experience, when one side gets a lawyer the other side should get one too – if only for a consultation to understand the totality of the situation. They need to understand their options for responding to a cease and desist or a demand letter and the likely consequences of each potential course of action. In a perfect world lawyers talk to lawyers when there is a dispute. They know the law best and can often speak more candidly about the situation and achieving a resolution.

Every entrepreneur should watch Mike Montiero’s “F*ck You, Pay Me.” It’s an outstanding talk that shows how the legal system helps entrepreneurs protect their rights.

If you believe your rights have been violated or you’ve received a notice from someone’s lawyer accuses you of intellectual property infringement, breach of contract, or the like, contact a lawyer in your community who can analyze the situation and advise you on your options. If you want to chat more about this topic, you can contact me or connect with me on TwitterFacebookYouTube, or LinkedIn.

U.S. Copyright Office is Raising its Filing Fees on May 1, 2014

Burning Nature by Vinoth Chandar from Flickr (Creative Commons License)

Burning Nature by Vinoth Chandar from Flickr (Creative Commons License)

Last week, the U.S. Copyright Office announced that it is raising its fees to register your work. Effective May 1, 2014, the cost to register a single work or a collection of works using their online system will go up from $35.00 to $55.00 per application. For those of you who are old school and prefer to register your work by mail, the fee will go up from $65 to $85.

So if you have projects that you were planning on registering with the Copyright Office, now would be a really good time to get them done.  You only have to get your application in before May 1st; it may take the Copyright office until after May 1st to process it.

There is one piece of good news in the fee hike announcement. The U.S. Copyright made an exception for individuals who are registering single works that are not “works made for hire.” If you are a photographer, writer, or some other artist and you want to register you works individually, your filing fee will remain at $35 per application.

I had a question about this exception because I know many artists who create a lot of works that are not works made for hire, but they do it under an LLC for liability and tax purposes.  I called the Copyright Office and they confirmed that you only qualify for the $35 fee if you register as an individual person. If you register your work under your business name, you have to pay $55 per application, even if you are the only person in the business.

Heart in Pages by Vincent Lock from Flickr (Creative Commons License)

Heart in Pages by Vincent Lock from Flickr (Creative Commons License)

The only things that are changing on May 1st are the Copyright Office’s fees. The rest of the copyright laws have remained the same.

To qualify for a copyright, you need an original work of authorship that is fixed in any tangible medium. When you have a copyright, you have the exclusive right to control where your work is copied, distributed, displayed, performed, and what derivative works can be made from it. You get these rights the moment your work is created, even if you never register it with the Copyright Office and even if you don’t put a copyright notice on your work – i.e. “© [Copyright Owner’s Name] [Year].”  If you register your work, your registration provides the presumption of ownership and validity of your copyright rights. If you ever want to sue for copyright infringement when someone steals your work, you must register your work with the U.S. Copyright Office first.

If you want to talk more about copyright, copyright registration, or intellectual property strategy, connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. If you post your original work online, I strongly recommend you check out the many chapters on copyrights in my books:

Please subscribe to the Carter Law Firm monthly newsletter and visit my homepage for more information about Carter Law Firm.

Burning CDs and Copyright Law

CD Reflections by spcbrass from Flicker (Creative Commons License)

CD Reflections by spcbrass from Flicker (Creative Commons License)

One of my favorite minimalists shared a post by Lindsay Schauer about the eight things you can live without on Twitter last week, and it kicked off a legal discussion and he asked me to comment. One of the things Lindsay said to get rid of is your CD collection – burn them to your hard drive and get rid of the physical CDs themselves. That makes a lot of sense. A single CD doesn’t take up much space but a collection of jewel cases does.

I put my CDs in a CD binder and chucked the cases years ago, but can you legally copy a CD you own and keep that instead of the disk?  Probably.

The copyright holder (likely the record label or the artist) controls when/where/how their work is copied, distributed, and performed. When you buy a CD, you only purchase the tangible object – not the intellectual property rights. Just like when you want to get rid of an old book you can give it away, throw it away, or sell it to a second hand store, the same is true for CDs. However, you can’t make a photocopy of the book so you can keep the original for yourself and give a copy to a friend. The same is true for CDs. (Yes, all those copies of CDs you burned from or for your friends are probably illegal.)

CDs by borkur.net from Flickr (Creative Commons License)

CDs by borkur.net from Flickr (Creative Commons License)

If you legally purchased a CD, you can make a copy of it for “archival” purposes. This prevents you from having to buy a new one in the event the CD gets lost, damaged, broken, or used as a Frisbee, coaster, or for an art project. The same rule applies for making a copy of computer software that you’ve legally purchased.

So can you take Lindsay’s advice and copy all your CDs to your hard drive and chuck the originals? Yes, if you legally purchased the albums. You can only make one copy for yourself. You can’t make copies for your friends.

The purpose of the copyright law is to give artists rights in their work and allow them to profit from selling it. An archival copy is supposed to be a backup for the original, so some copyright holders may frown on people who make an archival copy of a CD and sell the original. (You’re starting to look like the guy who sells a book to a friend but keeps a photocopy of it for himself.) There’s an argument that you’re committing copyright infringement; however, the amount you’re making isn’t really cutting into their profits, and the artist might be happy that more people are being exposed to their music. If someone is concerned about their rights and maximizing profits, they might be less upset if you throw the CD away or repurpose it into a coaster so anyone else who wants the album has to buy it.

The good news in copyright infringement cases is the only person who can come after you for copyright infringement is the copyright holder. If they don’t know what you’re doing or don’t care, they will never come after you.

If you want to chat with me about this or any other topic, you can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm monthly newsletter.
Please visit my homepage for more information about Carter Law Firm.

New Stance on Blog Copyright Registration

Hey you! by QuinnDombrowski from Flickr

Hey you! by QuinnDombrowski from Flickr

Grrr . . . It seems like every time I call the Copyright Office with a question about blog copyrights, I have to change my stance on how and whether anyone should register their blog’s content. Mind you, when I wrote the Legal Side of Blogging last year, my research and ideas were approved by my cyberspace law professor and another internet/copyright attorney. We all got it wrong.

I used to think that bloggers should register their new content every three months because the Copyright Act says you’re eligible for statutory damages in a copyright infringement lawsuit if you register your work within three months of publication or one month of learning of the infringement – whichever is first. In a previous call to the Copyright Office, the representative said it was permissible to register all your content as one work and that subsequent registrations would be derivative works of the prior ones.

A few months ago I was informed that content that is only available online (including blog posts) doesn’t count as “publications,” so that rule about registering within three months of publication doesn’t apply. For unpublished content, you have to register you work prior to the infringement occurring to be eligible for statutory damages. If you wait until after your work has been stolen to register you work you can only collect actual damages, which will be low unless you or the person who stole your work has a financially successful site.

I called the Copyright Office yesterday and was told that you can’t register posts that are released on different days as one work (though my experience is proof that you can) and you can’t register the same post as an individual work and as part of a larger work, (though I think there’s some wiggle room here).

So here’s my new stance – registering your blog content is not worth it for most people. The exception to this rule is you might want to register your work if you think it will be stolen by someone who can afford to pay potentially hundreds of thousands of dollars in damages and attorneys’ fees. If you’re in this boat, or think you might be, you should submit your application to the Copyright Office before you release the post on your site to ensure that your application will be in before any infringement can occur.

This is more proof of how behind the times the law is and that you can’t apply logic to copyright on the internet. I think it’s moronic that online content isn’t “published” when it’s released on the internet. I think this definition will change in the near future with so many publications switching from paper to being online only. As the law is written and applied the law seems unfair because it makes it harder for online writers to protect themselves.

There is a special copyright registration for “serial works” but so far the Copyright Office says blogs, including those that are released on a strict schedule like other serial publications, do not qualify. I think this is wrong and needs to be challenged.

For now, I’ve added a disclaimer to my ebook on Amazon that states that the copyright registration chapter is inaccurate and will be updated this summer. I hope to add the revised chapter to the book in the next month once it gets through legal review and editing.

Should Star Wars Fans Fear Disney Cease & Desist Letters?

Yoda statue outside Lucasfilm - The Presidio by kennejima from Flickr

Yoda statue outside Lucasfilm – The Presidio by kennejima from Flickr

May 4th is Star Wars Day. May the 4th be with you! In light of this geeky holiday and the fact that I will be speaking about the legalities of fan fiction and fan art at Phoenix Comicon this year, I’ve been thinking about what the impact of the Disney buying Lucasfilm in 2012 will have on Star Wars fans.

George Lucas was known for encouraging fans to create fan art and fan fiction. This is an expression of love for Star Wars and gives fans a chance to connect in new ways. In contrast, Disney is known for sending cease and desist letters when they find that a day care or school shows Disney films or if a child-centered business has a mural of Disney characters painted on the wall.

I tell my fellow geeks who want to create fan art or fan fiction to do their research on whose work they want to emulate to see if the copyright holder will be likely to come after them if they discover what they’ve created. I haven’t heard of any Star Wars fans receiving a cease and desist letter from Disney since they’ve acquired Lucasfilm. I’ve sent a message to Disney corporate office asking about their official policy regarding Star Wars fan art and fan fiction.

If you get a cease and desist letter from Disney for your Star Wars fan fiction or fan art, you could try to make an argument that you’re not committing copyright infringement because what you created is protected by the concept of fair use. This is part of the Copyright Act that permits people to add original and transformative content to existing works. This law protects things like parodies.

Never forget that fair use is a defense, not a permission slip. To make a valid fair use argument, the copyright holder will sue you for infringement and then you’ll have to demonstrate to the court that your work qualifies as fair use. The court will consider four main factors:

  1. Purpose and character of your use of another’s work (Are you transforming the original?)
  2. Nature of the copyrighted work you’re copying
  3. Amount and substantiality of the copyrighted work used
  4. Effect on the market (Is your work a substitute for the original?)

This is somewhat a dangerous quest to take on. The general rule is “Disney never loses” when it comes to legal battles. I know of only person who fought Disney and won in a copyright situation.

If you create fan art or fan fiction or are considering creating original work based on an existing work and need to understand the legal risks that accompany your work, please contact a copyright attorney in your community. You can also check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed for my thoughts on fair use.

You can also subscribe to the Carter Law Firm monthly newsletter.
You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

FAQs about the Legalities of Social Media

Carter Law Firm's Official Postcard - let me know if you want me to send you one.

Carter Law Firm’s Official Postcard – Let me know if you want me to send you one.

I had the pleasure of speaking at the Public Relations Society of America’s Western District Conference last weekend. I led two sessions: “So you want to do a flash mob” and “The Legal Side of Blogging: 10 Questions to Ask Before you Hit ‘Publish.’” Both sessions were great and I wanted to share some of the frequent questions I get when I talk about the legalities of social media.

What should you do if you’re outsourcing your blog content?
You need a kick ass contract that clearly states who owns the copyright in the content that is created. If the hiring company obtains copyright, does the blogger get permission to put a copy of the work in their portfolio to obtain other work? The contract should also state who is responsible if there are any problems related to the work (i.e., copyright infringement claim) or if there are any disputes related to the contract.

What should you do if you want to use a photo from a company’s site, such as if want to write a positive review of their company?
There’s a chance that using the photo could qualify as fair use; however it’s probably best to avoid the possibility of being hit with a copyright infringement claim by asking the company if you can use their photo. You never know who owns the rights to an image and if there are any restrictions related to using it.

What’s the worst case scenario if you use an image from Google Images without verifying that it was available for use with a Creative Commons license or had been released to public domain?
You could be sued for tens of thousands of dollars for copyright infringement. I always say that just because someone sues you that it doesn’t mean they’re going to win, but in this case, they might. You can still be sued and lose even if you didn’t mean any harm.

I get permission to use every photo on my blogs or use photos that are available under Creative Commons licenses that allow me to modify and commercialize each image.

What if you’ve been using Google Images or you haven’t kept track of what images you’re allowed to use?
Probably no one wants to hear this, but I’d rip every image out of your site and start over, making sure that you own or have permission to use every image on your site.

These are my rules of thumb when it comes to social media:

  • Assume everything you post online will be seen by your best friend, your worst enemy, your boss, and your mother. If you’re not ok with one of those people seeing what you want to say, don’t post it.
  • Don’t post anything online that you wouldn’t put on the front page of the newspaper.

For more information about the legalities of social media, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

You can also subscribe to the Carter Law Firm monthly newsletter.
You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Sending a Bill When Someone Steals Your Work

Mushroom? by Oslo in the Summertime from Flickr

Mushroom? by Oslo in the Summertime from Flickr

I’m a member of a Facebook group for people to discuss and share instances where other people use their work. Most of the members are nature photographers who do gorgeous work. Most of them have no desire to sue people who steal their work, but they would like to be compensated. And some of them are getting pissed when they find that someone has stolen their work and have started sending bills to people who use their work without permission.

This isn’t a bad idea. I’ve had a friend get a bill in the mail when he used someone’s photograph without permission that he found via Google Images. You can view it here or below.

When someone comes to me and wants to send a bill to anyone they discover is infringing on their copyrights, I suggest they add information to the website where they show their work about licensing terms and fees. This makes it more credible when the artist sends a bill that essentially says that by using a photograph, the infringer has agreed to pay the fee and abide by the license’s terms. As long as the infringer complies, they are no longer committing copyright infringement.

The downside of this strategy is many people will ignore such a bill if they receive one. Then the question for the artist is “What’s next?” Do you sue them? Send a DMCA takedown notice to get the work taken off their site? Call them out publicly for using your work without permission? Do you drop the issue?

My friend who got the bill for using an authorized image earlier this year got a bill from a company with a track record of suing people who don’t pay the bill and winning. In his case, he choices appeared to be pay the bill (or try to negotiate a lower price) or get sued. If you don’t follow up when people don’t pay the bill, it’s kind of like the photoradar tickets. If you get one in the mail, you can deal with it by paying the fine or going to traffic school or avoid service for four months until the court drops the charge.

I’m not one to tell people what they should do, but I advise people to think their plan of action all the way through before selecting a course of action. If you need help deciding what’s the best strategy for protecting your copyrights, please contact a copyright attorney in your community.

For more information about copyright and blogs, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Update on Registering the Copyright in your Blog

Library of Congress by ctj71081 from Flickr - Where your work goes when you register it with the U.S. Copyright Office.

Library of Congress by ctj71081 from Flickr – Where your work goes when you register it with the U.S. Copyright Office.

I’ve been a proponent of registering your copyright in your blog every three months. The federal Copyright Act states you must register the copyright in your blog within three months of publication or one month of learning of the infringement, whichever happens first.

So every three months (March 31st, June 30th, September 30th, and December 31st) I have a note on my calendar to register my blogs. I take all the content I’ve added to my blog since my last registration, create a PDF, and register it.

I made a mistake on my last copyright application.

I let logic dictate my action and I claimed that my publication date was December 31, 2013 on my last application. I should have said that my word was “unpublished.” If I declare that my work is published, I have to register each post individually. If the work is “unpublished,” the dated posts can be registered as a group.

You would think that putting something on the internet counts as publishing a work, but it doesn’t. In the Copyright Office’s words, “For copyright purposes, ‘publication’ means the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display is also ‘publication.’ The following do not constitute “publication:” the printing or other reproduction of copies, a public performance or display of the work, or sending copies of the work to the Copyright Office.”

If the only place you put your content is on your blog, it’s likely not published. If you repurpose your content in multiple locations, it might be. (Talk to a copyright attorney to see if you’ve “published” your work.)

The downside of blog content not counting as published is you have to register you work prior to it being stolen to be eligible for statutory damages under the copyright laws. So the idea a lot of my copyright attorney friends and I believed about registering every three months is not a good strategy. Also, the Copyright Office doesn’t like it when you register posts that were released on different days as a single work. Experience tells me that they’ll let you do it, but if they know that’s what you’re doing, they’ll tell you that you have to register each post individually.

Because of this, the best strategy for people who want to be able to sue for copyright infringement if their blog content is stolen is to register your work before you put a post on your site. Yes, this will be more expensive because each post will need its own registration, so you might want to only register the posts you think will be stolen, and even then you may want to only register the posts that you think will be stolen by someone who can afford to pay the damages assessed by the court and your attorneys’s fees. Otherwise you might be better off not suing for copyright infringement and sending a cease and desist or a DMCA takedown notice.

If someone steals your work, you should talk with a copyright lawyer ASAP. Even if you didn’t register you work before the infringement occurred, you may be in a situation where it is worthwhile to pursue actual damages which is how much money you lost and the alleged infringer made because of the infringement. They can also discuss other ways to address infringement that don’t involve the court system.

For more information about copyright and blogs, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.
You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.