Copyright Notice Done Right

Copyright Notice on Burn

Last weekend, I watched a documentary, Burn, about the Detroit Fire Department. (It’s an intriguing documentary film about these amazing people and how the economy’s crash impacted these firefighters and their community.)

As a lawyer, one of the things I liked about this film was the simplicity of its copyright notice. It had the standard FBI and Interpol warnings (which play through while I’m grabbing a snack), but this last notice caught my eye. It said, “This copy of ‘Burn’ is licensed for Private Home Viewing Only. Any other use is prohibited.” The notice went on to state how to request permission for other uses.

One of the complaints about the use of legal verbiage in everyday life is that it’s often too long to be worth reading, it’s filled with complicated legalese, and it’s in a tiny font. (How many times have you accepted the terms on a site without reading it?) This notice combats everything that’s wrong with the current systems:

  • It used plain language.
  • It was short.
  • It was readable.

A ten year-old could read this and understand what it means. I have never met a ten year-old that’s tried to read the FBI warning before watching a movie.

This notice made me smile. I wish more creators do things like this when declaring their rights and informing others how to seek permission for different uses. Sometimes complicated legalese is necessary, but generally not in mundane situations. Legalese in everyday life should use everyday language.

I’m an advocate of writing contracts and notices in plain English and keeping them as short as possible while still being effective.  If you have questions about your copyright and contract needs, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Staying Out of Trouble on Facebook Live

Selfie by Reyes Blanch from Flickr (Creative Commons License)

Facebook Live is one of the more recent developments in live video streaming on the internet. When used properly, it’s a lot of fun to get a real-time glimpse into someone’s life or a breaking news situation. It has value, but it also has its place.

The Same Rules Apply
Legally speaking, the rules that apply to Facebook Live are the same rules that apply to live video apps. In 2015, I wrote a post about the legal dos and don’ts of Periscope. Those same rules apply to Facebook Live.

The challenge with live video . . . is it’s live. You can’t edit a live performance, so if you do something inappropriate or illegal, assume someone saw it, recorded it, and you may have to face consequences for it later. If you’re not jumping on Facebook Live to show a newsworthy event in real-time, I recommend you take a minute or two before you go live to think about the scope of want to talk about, what topics or language are out-of-bounds, and when you’ll know to stop the recording. This is especially true if you’re distraught or experiencing extreme emotions. If you’re especially upset, it may be better to wait a few hours until you’ve calmed down or record your thoughts without being live.

Playing Music on Facebook Live
A friend asked about the legalities of playing music during a Facebook Live broadcast. The rules that apply to radio stations, retail stores, and cover bands apply to a person who is live streaming. If the music is not in the public domain, the copyright holder has the right to control where their music is copied and played. Facebook Live is likely a public performance, so even if you own a copy of the song for personal enjoyment, you can’t play it publicly without a license. In these situations, the only person who can come after you for infringement is the copyright holder. If they don’t know or don’t care about what you’re doing, you may never get in trouble. (Of course there is an exception for someone who uses Facebook Live to give commentary or criticism of the music – that may be protected by fair use.)

Think Before You Post
As always, think before you post/broadcast yourself. Once you put something out there, you can never fully take it back. What seemed like a good idea in the moment may be tomorrow’s regret, with long-lasting implications. Last summer we saw the disturbing Facebook Live video of a Georgia mother beating her 16 year-old daughter. The woman wasn’t charged with assault, but I wonder what will happen the next time she applies for a new job and the news stories (with video) from this incident dominate the results when prospective employers search for her name.

These are my rules of thumb when it comes to posting anything on the internet:

  1. Don’t post anything online that you wouldn’t put on the front page of the newspaper.
  2. Assume everything you post will be seen by four people: your best friend, your worst enemy, your boss, and your mother. If you don’t want to one of those people to see what you’re thinking about posting, don’t say it.

The laws that apply to the internet is an area of law that is constantly developing as cases are decided and new statutes are added to the rule book. If you want additional 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 contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

No Protection for Short Phrase T-Shirts

FUNNY ASS SHIRT by Douglas Muth from Flickr (Creative Commons License)

I regularly get questions from people who sell shirts on Etsy, Café Press, or a similar website and they claim that another user is stealing their design. When I look more closely at the situation, I see all the person is selling is shirts with a short phrase, in a common font, and no other artwork or design elements. Many times, I have the unfortunate responsibility of telling them that there’s no intellectual property in their design, so there’s no infringement (that’s legalese for “stealing”).

No Copyright in Short Phrases
Copyright applies to original works of authorships when they are fixed in a tangible medium. A t-shirt is a tangible medium, and it’s possible to have an original work on a garment. However, short phrases aren’t original works, so the act of merely printing one on a shirt does not create a copyright-protected article.

If that’s all you’re selling – word or a phrase on a shirt – there’s likely nothing you can do (from a copyright perspective) to stop your competition from selling a shirt with the same phrase on it. If you look on any of these DIY shirt and craft sites, you’ll see the same phrases on shirts from different sellers. There’s no copyright protection for words, images, or phrases like “geek,” “reasonable person,” “Introverts Unite! Separately in your own homes,” and even more creative phrases like “terminally soulless douche canoe.”

The Anti-Titanic Shirt

This used to be less of a problem before we had Teespring, Zazzle, and sites that make it easy to create and sell shirts and whatnot. In the past, if you wanted to sell a shirt, you had design it, have it printed, and then sell them in shop or on the street, or if you had html skills, you could create a website and people could mail you a check for a shirt. That’s what my friend, Peter Shankman, did when he sold anti-Titanic shirts in 1998. He started selling them in Times Square and then sold them online. He was a success, in part, because he had no competition.

What Could be Infringement
Every t-shirt design on Etsy is not up for grabs. Copyright does not protect short phrases, but it does protect designs with original artwork on them. Additionally, copyright protects the images you post of your shirts on your site. If you see another seller using your photos, that would likely be infringement (assuming it’s your photo). Sending a DMCA takedown may be sufficient to get them removed from their online store.

The other thing to watch for is trademark infringement. A seller can use a short phrase as a trademark to brand their wares. They can also create a logo that they put on their products. If you see someone using your trademark or a mark that is similarly close to yours, that could be infringement and worth investigating.

Beat the Competition in the Marketplace
For anyone who is selling these types of shirts, the best way to deal with your competition is be better than they are. Give your customers a reason to buy from you than from another seller, or having it made at a t-shirt shop. It could be your prices, the quality of the garments, or something about your company that makes you more desirable than the others.

Beyond that, you may want to consider upping your t-shirt game by creating or purchasing designs that will be protected by the Copyright Act.

Copyright is an area of the law with many gray areas, so if you’re having legal issues regarding your copyright rights, you can contact me directly or an intellectual property lawyer in your community. I regularly post about copyright and other IP issues on TwitterFacebookYouTube, and LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Legal Issues with Open Photoshoots

Parkwood Photography Studios, used with permission

Last week, I went to an open photoshoot/happy hour at Parkwood Studios. (They have a gorgeous space!) It’s a free monthly event for photographers and models of all skill levels and experience. There was an area set up with lights where anyone could model and shoot photos. The purpose is to give everyone an introductory experience working with a model in a studio environment. There was not a model release or TFP agreement for this event.

I went to this to network and to model. As a lawyer, I knew what I was getting into in regards to copyright and image rights. Of course, my analytical brain couldn’t stop strategizing what I’d do to integrate legal protection and information without disturbing the spirit of the event.

Who’s At Risk, Who’s Protected
There are three groups who should be interested in protecting themselves at an open shoot: the models, the photographers, and the studio. If I represented a studio that hosted an open shoot, I’d recommend having a release that states the studio is not responsible for anyone’s behavior. If there’s a dispute between a model and a photographer, that’s an issue to be resolved between the two of them.

One of my images from the open shoot. I look like a action hero.

Model Release and Copyright Notice
Even in the photography/modeling industry, a lot of people do not understand copyright and image rights. In an open photo shoot, the model and photographer exchange their time, talents, and the opportunity to practice their respective crafts. Unless stated otherwise in a written agreement, whomever took the photo owns the copyright.

The expectation at these events is that photographers and models exchange contact information so the photographer can share images with them, and that the models are allowed to put the images in their portfolios or share on social media. I suspect the studio would also want a license to the use any images taken at the event that they receive or that are posted to their social media to promote future events or the studio.

No Guarantees
The one of the complaint I heard from past events is models saying a photographers who took photos of them never sent any images. While that is poor form, the only way I can think to legally work around this is to have a “no guarantee” clause. There’s no guarantee the photographer will send the model photos and there’s no guarantee the photographer will get the shot they want.

Code of Conduct
Since this is an event for all experience levels – including fledglings – I recommend having a code of conduct that applies to everyone and the studio’s equipment. This would include basic things like “Always ask permission before touching a model,” “Don’t touch the lights or any equipment that’s not set up for use at this shoot,” “Give constructive feedback,” and “Be respectful – we’re all here to learn and have fun.” A lot of these are common sense, but it’s good to state the obvious for people for whom it might be their first time shooting in this type of environment.

For studios like Parkwood that host regular events, I suggest creating reusable poster-sized copies of the rules and release and put it on the door leading to the photoshoot area with a notice that says by entering the room, you agree to these expectations. For anyone who wants to shoot photos or model, put a clipboard with a dated copy of the agreement and a signature page where everyone must agree to the rules before they’re allowed to participate. This serves multiple purposes:

  • It gives photographers and models experience with reading and signing these agreements.
  • It creates expectations and helps avoid conflict for all involved.

I get questions every day about photography, image rights, and copyright. For anyone who works as a photographer or model, it’s imperative that you understand these topics. Many disputes can be avoided with well-written contracts and accurate information. I’m constantly doing work in this area, so if you want to keep up with what I’m doing or if you need help, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Copyright License for Commissioned Art

“and the years have wings, detail” by Olivia Kirby from Flickr (Creative Commons License)

There are services that will print your photos and other artwork onto canvas – even in Walgreens. I recently heard of a situation where a customer commissioned an artist to create a portrait. The artist created the work and sent it to the customer as a JPG file, that the customer could use to get it printed onto paper or canvas. This may be a more efficient and cost-effective way for artists to create original pieces for customers.

The customer took the image to be printed on canvas, and the photo processor refused to do it without a release from the artist. I’d never heard of a printer requiring this, but the customer encountered this problem when they tried to use two different printers. To avoid such problems and delays in the future, the artist should provide a license with the JPG file for printing in case the customer is required to provide it.

Photo Processors and Copyright Infringement
Should photo processors be concerned about customers using their services to make unlawful copies of another person’s work? Probably not. I suspect a customer that comes in with a JPG to create one photo product is likely not committing copyright infringement. Of course, there’s an exception for art that is so well-known that a reasonable person would recognize the likelihood of infringement.

One way a photo processor could protect themselves from accusations of contributory copyright infringement would be to include a check box on the order form where the customer attests that they own or have permission to use the image in this way and indemnify the photo processor in the event of infringement lawsuit and with reimbursement for all related costs and damages. I know the company I use to print my custom t-shirts has this on their order forms.

License for Commissioned Work
This problem sounds like it’s easy to fix: the artist can add a licensing provision to the agreement that specifies upon payment in full, the customer will receive a JPG of the work and a license for how the customer may use it. That provision can specify that the artist retains ownership of the copyright and the customer may have the unaltered JPG printed on paper, canvas, and any other permitted medium for personal use (which may involve soliciting the services of a third party printer). That should hopefully be enough to satisfy the concerns of any printing service.

The artist may want to add other licensing terms, such as it’s a non-exclusive, paid-in-full, royalty-free license, whether the license is perpetual or time limited, how many prints the customer may make, and any other permissions or restrictions the artist wants to impose of their work. An intellectual property lawyer can provide more information about what provisions to include in such an agreement.

I was surprised to hear about this situation, especially if the customer only asked for one print. I would expect the order to be more extreme to raise a red flag for a printer, but on the other hand, I’m pleased to see printers being mindful about what they’re being asked to create. The laws and rights related to intellectual property are complicated and always situation-dependent. If you want to connect with me about your intellectual property rights as a consumer or an artist, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Using Movie Clips in your YouTube Videos

Wedding Crashers by Kurt Bauschardt from Flickr (Creative Commons license)

Some people incorporate clips from mainstream movies into their YouTube videos. Depending on the circumstances, it may or may not be legal.

Movie Studio’s Rights
Whoever owns the copyright in the movie has the exclusive right to control where the work can be copied, distributed, displayed, performed, and what derivative works can be made from it. This applies to the whole film and clips of it. The copyright owner is also the only one who can come after someone for copyright infringement. So, if they don’t know or don’t care about what another person is doing with their work, that person will never get in trouble.

What about Fair Use?
The powers that wrote the Copyright Act understood that existing artwork inspire other artists to create new works. To that effect, they created the fair use provision of the copyright law (17 U.S.C. § 107 if you want to look it up).

The fair use law allows a person to use another’s work for the purpose of criticism, commentary, research, and teaching – often in ways that thoughtfully add to the existing work. The law provides four factors that the court may consider in determining whether a use is copyright infringement or fair use (which I turned into the handy mnemonic device PAIN), but these are merely points of consideration.

The fair use factors are not a mathematical equation to use to get a definite answer. The only way to know for certain if a use qualifies as fair use would be if there’s a lawsuit and the court makes a ruling on the matter. However, if the use of another’s work is transformative and doesn’t become a substitute for the original work in the market, there’s a good chance it’s fair use.

One way to avoid the issue about whether using a clip is copyright infringement or fair use, would be to get permission to use the clip by purchasing a license. Without this permission, there’s a risk that the copyright owner will order your video to be removed until the offending clip is removed.

Using a Movie Clip – Good Idea or Bad Idea?
If a client asked me about using a movie clip for a purpose other than criticism, commentary, as a teaching demonstrative, or an original compilation with other works, I’d challenge them to explain why they want to use that clip and what value it adds to their work. I’d also encourage them to at least do their homework on the copyright owner to see if they have a track record of going after people who use clips of their work without permission.

Ultimately, I respect my clients’ choices, but I try to help them make informed decisions about the risk they’re accepting when they use another’s work. Copyright and fair use situations are always complicated and always depend on the specific circumstances. If you want to connect with me and hear more thoughts about copyright, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Turnabout is Fair Play – Getty Sued for $1B for Copyright Violations

The Trees are Laughing at Us by daspunkt from Flickr (Creative Commons License)

The Trees are Laughing at Us by daspunkt from Flickr (Creative Commons License)

Getty Images is known for sending letters to people suspected of using their images without purchasing a license. These demand letters essentially say, “By using our image, you’ve agreed to pay for a license. Pay $XXX by this date or we will sue you.”

They may have started the trend of other photographers sending similar demand letters when people use their images without permission. (I’ve sent these type of letters and counseled clients who have received them – usually from pulling images from a Google Image search without verifying that they had permission to use it.)

Getty sent such a letter to documentary photographer Carol Highsmith, claiming that she was violating their terms for using an image. Here’s the catch – it was a photograph that Highsmith took herself and previously shared with the Library of Congress to allow free use of her work by the general public. Highsmith has shared tens of thousands of images with the public through the Library of Congress since 1988.

Highsmith learned that Getty is claiming copyright rights to thousands of her images work and demanding payment for licenses, often without attribution to her, and adding “false watermarks” to the images. She filed a $1,000,000,000 (that’s $1B with a “B”) copyright infringement lawsuit against these agencies for the “gross misuse” of 18,755 of her photographs.

That’s a lot of photographs.
I hope they have good insurance.

But $1B?! Really?!
Actually, yes. In this case, suing for $1B makes perfect sense.

A party who adds or removes a watermark from a photo to avoid detection for copyright infringement can be fined up to $25,000 per image in addition to other financial damages for copyright infringement.
$25,000/image x 18,755 images = $468,875,000

And if a party is found to have violated this law in the last three years – which Getty has – the complaining party can ask for triple the damages.
$468,875,000 x 3 = $1,406,625,000

Looking at this, it’s easy to see how easy it is for Highsmith to reasonably request over $1B in damages. She’s also requested a permanent injunction to prohibit future use of images by Getty and the other Defendants and attorneys’ fees.

You can read the full complaint filed by Highsmith against Getty in New York Federal Court here.
So far, Getty claims they will defend themselves “vigorously.”

This could be a fun case to watch. If this case doesn’t go to trial (and most cases don’t), I hope the settlement isn’t kept completely secret behind a non-disclosure agreement. One of the recommendations I make to anyone who is a professional creative is determine in advance how you want to respond when your work is used without your permission and plan accordingly. For many people, it’s not if their work is stolen, but when.

There are a lot of issues that come into play surrounding photography, image rights, and copyright. If you want to chat more about these topics, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

EDIT: The previous version of this post stated that Highsmith released her work to public domain. My apologies. Highsmith retains the copyright in her work, but allows others to freely use it through the Library of Congress.

Copyright Protection – Ideas vs Expression

Golden Gate Bridge by Julian Fong from Flickr (Creative Commons License)

Golden Gate Bridge by Julian Fong from Flickr (Creative Commons License)

A common mistake among professional creatives and amateur is understanding the scope of copyright protection, In the U.S., when you have a copyright, you have protection for your original expression, not the ideas contained within your work.

What Does Copyright Protect
Copyright applies when you have an “original work of authorship” that is “fixed in a tangible medium.” When you have a copyright, you can prevent others from using or claiming your work without permission, but it doesn’t give you a monopoly over the ideas contained within a work.

The image above is a photograph of the Golden Gate Bridge by Julian Fong. By taking this photo, he has the copyright in the image; however, he can’t stop others from taking picture of the bridge. If I went to San Francisco and determined where he was standing, I could take a photo that is nearly identical to his, but that is not a violation of his copyright. He can only stop me from claiming his work as my own or using his work without his permission. He can’t stop me from creating my own picture. His rights only extend to his exact expression, not the idea of capturing an image of this bridge on a sunny day.

The same rules that apply to images also apply to written material. This is why multiple people can write about the same topic and even express similar sentiments without risk of violating the other’s copyright rights. As long as one writer is not deliberating copying the other’s work word-for-word and claiming it as their own, it’s possible for two people to create similar works without violating the other’s rights. It is permissible under the concept of fair use to quote another writer and provide your own thoughts and others’ perspectives about the issue.

What Is Not Protected
Copyright only protects original expression, it does not protect facts, ideas, methods, titles, names, short phrases, or recipes. Copyright can protect and original arrangement of facts, but not when it’s an unoriginal arrangement. That’s why a cookbook may be protected by copyright (original arrangement of recipes and images) but a phonebook is not.

I regularly receive questions from people about what is the scope of copyright protection and whether contributing to a project (such as being the subject of a photo) gives them rights in the resulting product. Copyright, like many areas of law, has few definite answers. Each situation must be evaluated based on its merits.

If you want to talk with me about copyright law and protecting your rights, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

Planning for the Digital Afterlife

Candlelight Vigil 6 by B. W. Townsend from Flickr (Creative Commons License)

Candlelight Vigil 6 by B. W. Townsend from Flickr (Creative Commons License)

Your accounts on websites and social media platforms, website domains, and all the content you post are your property, and therefore part of your estate.  When you pass away, your estate plan determines who will inherit your possession, including your property online. When you write your will, make sure it includes information about who will own your online content when you die.

Copyright Ownership
Under the U.S. Copyright Act, you are the copyright owner in any original works you create the moment they are “fixed” in any tangible medium (including digital files). This includes the photos and videos that you take post on social media and the content you create and post on your websites. For any individual, the copyright in each work does not expire until 70 years after you die. It’s important to designate who will be the copyright owner for your content.

Maintain Accounts
You may have accounts that require payment to maintain them – such as your web domains. Your accounts could be disabled or delete if they are not maintained, meaning the content could be lost if someone doesn’t continue to pay your domain, hosting, and account fees. If you want a website to live on after you pass away, include instructions and money for doing so.

For your other social media accounts, check with each site’s terms of service about what happens to an account when a user passes away. There may be processes in place to transition your account into a memorial page and/or transfer control to your loved ones.

Settling your Online Affairs
When you create an estate plan, you designate an executor or personal representative for your estate who is responsible for settling your affairs. Consider designating a representative to oversee you online affairs. Provide a list of your online property and instructions regarding what should happen to it. You may also want to give this person instructions regarding the files on your computer, in your phone, or in the cloud.

You may select one person as your regular personal representative and a tech savvy friend to address your online affairs. Your online executor may need access to your passwords to your computer, phone, and for each account. (This is when using a password storage system like LastPass is handy.) Your online executor is also the best person to clear your browser history, delete images from your machine, and possibly remove items from your home that you don’t want your family to see.

Dying Without a Will
If you die without an estate plan (aka die intestate), you’ll have no say over who inherits what from your estate. The court will appoint a personal representative and the laws of your state will determine who inherits your estate. In Arizona, if you die without a will, your spouse inherits your estate. If you don’t have a spouse, your children inherit your estate. If you don’t have a spouse or children, your parents inherit if they are living, otherwise your property goes to your then-living siblings. If you are an entrepreneur, you should also be aware of what happens to your LLC when you die.

If you want to talk with me about who owns your online content now and in the afterlife, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

Reclaiming your Copyrights

Music by Brandon Giesbrecht from Flickr (Creative Commons License)

Music by Brandon Giesbrecht from Flickr (Creative Commons License)

It was recently announced that Sir Paul McCartney filed papers in the United States to reclaim the rights to 32 songs from The Beatles’ catalog. The rights to these songs are currently owned by Sony. Yes, there is a provision (call if a loophole if you will) in the U.S. Copyright Act that allows for this.

How the Rule Works
This is a rule that applies to all creatives, not just a rule that applies to the rich and famous. You can look it up at 17 U.S.C. § 203 if you want to read it for yourself. The purpose of this rule is to five an author a “second bite of the apple” to those who may have granted a copyright transfer or license that they later regret. It protects people from being taken advantage of.

Here’s how the rule works: 35 years after the copyright assignment or license was granted or 35 years after the work was published, the author(s) can send notice to terminate this transfer or license and reclaim their rights. There’s a relatively small window in which an author must send the notice of termination with the effective date. A copy of this notice must be filed with the U.S. Copyright Office. If an author has passed away, whoever has the author’s “termination interest” in the work can send the notice – usually the author’s family.

There is one caveat to this rule – it does not apply to works made for hire.

Why More People Don’t Take Advantage of This
Why is this the first time most people are hearing about this loophole? Most of the time, it’s not worth pursuing.

At 35 years after a work was created, there is likely little or no money to be made off the work, so from a financial perspective, it’s not worth pursuing. If money is being made from the work, the author may be better off leaving their work in its current situation and the royalties keep flowing in. They don’t have to fix what’s not broken.

In Sir Paul McCartney’s case, he signed over the rights to his work decades ago, and yet he is still going strong as a musician. The BBC article on his bid to reclaim his rights specifically stated that he’s trying to obtain the publishing rights in his music. John Lennon’s share of the rights in the McCartney-Lennon catalog will remain with Sony.

If you signed away your copyright in a work and you wish to reclaim your rights, speak to a copyright attorney about your options. If you have questions about copyright or intellectual property ownership that you want to discuss with me, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.