Should Star Wars Fans Fear Disney Cease & Desist Letters?

May 2, 2013 by 14 Comments
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.

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Please visit my homepage for more information about Carter Law Firm.

Filed Under: Geek Law, Intellectual Property Tagged With: , , , , , , , , , , , , , , , , ,

FAQs about the Legalities of Social Media

April 25, 2013 by 1 Comment
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 newsletter.
You can connect with me on Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , , , , , , , , , , , ,

Sending a Bill When Someone Steals Your Work

April 11, 2013 by 6 Comments
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 photo radar 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 Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , , , , , , , , , , , ,

Update on Registering the Copyright in your Blog

April 4, 2013 by 6 Comments
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 Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Intellectual Property, Internet law, Legalities of Blogging Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , ,

DMCA Abuse

March 28, 2013 by Leave a Comment
Copyright license choice by opensourceway from Flickr

Copyright license choice by opensourceway from Flickr

The Digital Millennium Copyright Act (DMCA) is part of the copyright law. Its purpose is to protect people who provide online forums but don’t control the content people post to them – like YouTube and Pinterest. If they receive a notice that material on their site is allegedly copyright infringement, they must remove it. This law gives content creators a way to react to copyright infringement when someone posts their work online without permission. Instead of sending a cease and desist letter to the person who stole their work, they bypass them and deal with the infringer’s webhost instead.

Lately, I’ve seen a few instances where people have been improperly using the DMCA to get material removed from the internet that they don’t like. I’m starting to refer to these acts as DMCA abuse.

1. Using the DMCA to address TM Infringement
The DMCA should only be used for copyright issues – when you suspect someone is using your original content without your permission. Don’t use it to removed suspected instances of trademark infringement.

In a recent incident, GoPro allegedly sent a DMCA takedown notice to DigitalRev’s webhost to remove a picture of its camera from the site. The photo was in article that compared GoPro against another camera. GoPro didn’t think DigitalRev copied their content, but that they were using a picture of the camera that had the wrong branding. GoPro should have sent DigitalRev an email with a correct image of the camera instead of getting the whole article pulled for alleged copyright infringement.

2. Using the DMCA to Eliminate the Original
This story really bothered me. Somebody copied someone’s original content onto their site, and then used the DMCA to claim that they were the real owners and get the original removed for its site. Thankfully the original author could get their work put back on their site by sending a DMCA counter takedown notice.

Apparently this is a common incident. This behavior was so disturbing, I had to make a video about it.

If you think you have questions about how you, your brand, or your content is being used online, please consult an intellectual property attorney. Don’t just send a DMCA takedown notice – that may not be the right tool to address your problem. When you send a DMCA takedown notice, you attest under the penalty of perjury, that your statements are true. If you send a DMCA takedown notice and it turns out what you did qualifies as what I call DMCA abuse, you may have committed a crime.

For more information about copyright, 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 Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Intellectual Property, Internet law, Photography & the Law Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , ,

Using Google Image Search to Detect Copyright Infringement

March 21, 2013 by 8 Comments

Google Image SearchI heard you can input a picture into the Google Images search engine to see if someone has stolen or used one of your pictures without your consent. I decided to try to figure it out to see if it works.

I’m happy to report it’s super easy. Here’s how you do it.

  1. Go to the Google Images search page.
  2. Click on the camera icon on the far right of the search bar. This will bring up the “search by image” box.
  3. Paste the URL for the image you want to search for or upload it and hit “Search.”
  4. The results will show you every instance where someone has used that photo.
My paintball wound - Photo by Merlz Tamondong

My paintball wound – Photo by Merlz Tamondong

I started looking for images I’ve used on The Undeniable Ruth and I found an instance where someone pulled an image off my site without my permission. It’s a picture of me from Ladies’ Paintball Night. Someone put it on a paintball forum without asking me first. Even though this is a picture of me, I don’t own the copyright in it so there’s nothing I can do to get it removed, and to be honest, I don’t really care.

This search engine is one tool you can use to search for copyright infringement, but it won’t catch every copy of your photos, just the copies of the photos from your site. I know this picture of my dog Rosie is on my site and I shared it with Attorney at Work for a post I wrote for them. I didn’t give them a copy of the image off my site, so when I searched for this picture of Rosie, it only showed images from my site, not theirs.

My sweet Rosie dog

My sweet Rosie dog

If you’re worried about people stealing your work from your site, keep an eye on your analytics. A lot of people think it’s ok to use an image off your site as long as they give an attribution and a link to the source. All they may have done is committed copyright infringement and told you about it. I’ve discovered two instances of copyright infringement of my work this way.

If you create any type of content and you’re concerned about copyright infringement, please consult a copyright attorney in your community who can help you create and implement a strategy to protect your work.

Lights Camera Lawsuit

There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

Filed Under: Intellectual Property, Internet law, Photography & the Law Tagged With: , , , , , , , , , , , , , , , , , , ,

Publishing Contracts: Copyright Assignment vs Copyright License

February 14, 2013 by 18 Comments

The best analogy for copyright is a jar of markers where each marker represents one of your rights - 10 things: Sharpies by Crystl from Flickr

The best analogy for copyright is a jar of markers where each marker represents one of your rights – 10 things: Sharpies by Crystl from Flickr

I had the pleasure of speaking about the legalities of publishing at Changing Hands Indie Author Conference on February 9, 2013. My session covered the basics of copyright, the importance of registering your copyrights and publishing contracts. I wanted to do a recap of the two types of publishing contracts from a copyright perspective: copyright assignments and copyright licenses.

A copyright is the rights you get in your work. Your rights are created the instant you have an original work of authorship fixed in a tangible medium. As the copyright holder, you have the exclusive right to copy, distribute, display, perform, and make derivative works based on your original work. If you want to let someone publish your work, you need a copyright assignment or a copyright license. This should be a signed contract between the parties and it should be explicit about the rights you’re giving up (if any) and what you will get in return.

Copyright Assignment
When you give someone a copyright assignment, you give them your copyright. When you have a copyright assignment, you do not own your copyright anymore; the other party does. If you publish your work after you assign it to someone, you will be committing copyright infringement, even though you were the original author of the work. Some publishers require you to assign your copyright to them or else they won’t publish your work.

If you give someone a copyright assignment and you later regret the decision, you have to buy your copyright back from them. I know at least one artist who sold the copyright in his work and later purchased it back because it was more lucrative for him to control it.

Copyright License
If you grant someone a copyright license, you retain ownership of your copyright and you give the other party permission to use some or all of your copyright rights. You may grant a publisher the rights to publish your work in print and/or as an ebook but retain the right to create an audio version of your work. J.K. Rowling retained her internet rights to the Harry Potter series when she negotiated her contract with her publishers, which is why she could create Pottermore.

If you license your work, the license should explicit state whether the license is exclusive or non-exclusive, time-limited or perpetual, and clearly state how you will be compensated for granting the other party the license.

Publishing contracts are complicated and it’s best to have a lawyer review the contract before you sign it to ensure you understand what rights you’re giving up and what rights you get to keep. As always, if there’s a portion of a contract that you don’t understand, don’t sign it.

I also created a video this week about the difference between copyright assignments and copyright licenses here.


You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

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How To Get a Free Consultation with Ruth Carter

January 31, 2013 by 2 Comments

Photo by Don McPhee

Photo by Don McPhee

I’m excited to share that I’ve teamed up with Gangplank in Chandler to offer free legal mentoring services on the first Monday of the month from 1pm until 4pm. I can see 3 people for 45-minutes each every month at no charge.

Hello Beautiful by Gangplank HQ from Flickr

Hello Beautiful by Gangplank HQ from Flickr

My legal mentoring hours are a great opportunity to informally bat around your ideas and questions about your projects and business. Coming to my mentoring hours does not create an attorney-client relationship between us. We won’t have any ongoing obligations to each other unless we decide to create a formal working relationship.

Gangplank provides free collaborative workspaces in Arizona, Virginia, and Canada. They provide the physical and social infrastructure for creative people to launch their startups. These are wonderful places for freelancers and new business owners to work. In Arizona, Gangplank has locations on Chandler, Avondale, and Tucson.

I love working with Gangplank. They have a fantastic group of dynamic people who have an enormous amount of creativity and drive. They have a very informal environment and they do incredible work. It fits brilliantly with my desire to be the approachable lawyer who wears t-shirts.

Skulls & Stripes by Gangplank HQ from Flickr

Skulls & Stripes by Gangplank HQ from Flickr

Gangplank in Chandler is located at 260 South Arizona Avenue. Their events calendar shows their mentors’ availability and also all their other events like their weekly brown bag presentations, hacknights, and workshops. They have a wealth of other mentors too who provide assistance in the areas of business, leadership, marketing, design, finance, and technology.

Gangplank is in charge of scheduling the mentoring hours so please check their event calendar for my availability. You can book a mentoring appointment with me by emailing them at chandler@gangplankhq.com.

Please note: my mentoring hours at Gangplank are not for my ongoing clients with whom I’ve created an attorney-client relationship. These appointments are for people who think they might need a lawyer, people who just want some general legal information, law students, anyone else who wants to chat for an hour.

You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Employment Law, Flash Mob Law, Intellectual Property, Internet law Tagged With: , , , , , , , , , , ,

Jonathan Coulton v. Glee – Legal Rip Off or Copyright Infringement?

January 28, 2013 by 8 Comments

Jonathan Coulton by Dan Coulter from Flickr

Jonathan Coulton by Dan Coulter from Flickr

I’ve been reading up on the Jonathan Coulton/Glee controversy over Coulton’s arrangement of “Baby Got Back” by Sir Mix-a-Lot and all I can think is “What the fuck, Glee?!?”

Sir Mix-a-Lot is the artist behind the original “Baby Got Back.” When indie singer-songwriter Jonathan Coulton wanted to record a cover of it, he did the ethical and legal thing and purchased a license to use the song. Whenever he sells a copy of his version, Sir Mix-a-Lot gets a royalty payment.

The TV show Glee is about a high school glee club that does covers of popular songs. When they wanted to do a version of “Baby Got Back,” they got permission from Sir Mix-a-Lot to do it, but according to Coulton and his fans, they blatantly ripped off his arrangement without any attribution. It was likely completely legal for Glee to do this, but it was an asshat thing to do.

Here’s how copyright works when it comes to music. When a musician writes a song (think sheet music), he gets the exclusive right to copy, distribute, display, perform, and make derivative works from it. Covers are derivative works, which is why Coulton needed a license to do his own arrangement of the song. He used the same lyrics with a few modifications, but the accompanying music is totally different.

When the musician makes a sound recording of their song (think mp3, CD, etc.), he gets a separate copyright in that. In this case, Coulton may not have a copyright in the arrangement he wrote for “Baby Got Back,” but he does have a copyright in his sound recording of his arrangement of the song.

When “Baby Got Back” aired on Glee, Jonathan Coulton and his fans recognized it as his arrangement instantly, and they rightfully asked, “What the fuck?” No one informed Coulton that they’d be using his arrangement and they didn’t give him credit for it on the show. The show reportedly responded that he should be happy for the free exposure. What exposure did they give him since they didn’t give him the attribution for his work?!

Some people are now questioning whether Glee used some of Coulton’s sound recording on the show. Coulton may not have legal recourse for them using his arrangement of the song, but he would if they used his recording instead of recreating it themselves. We’ll see where the chips fall on this one.

In the meantime, Coulton is doing something totally awesome in response to this situation. He released his version of “Baby Got Back” (in the style of Glee) and he’s donating the profits to The VH1 Save the Music Foundation and The It Gets Better Project. Go buy it! (I did!)

So what’s the lesson from this: Always give an attribution when you use another artist’s work, even if you’re not legally obligated to do it.

You can read more about this story on CNN, Wired, and Forbes. Apparently other artists are also coming forward and saying that Glee did the same thing to their arrangements as they allegedly did to Coulton.

You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

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Choose Your Strategy to Protect Your Work Before Posting it on the Internet

January 17, 2013 by 2 Comments

My artwork for Dans office by Romers from Flickr

My artwork for Dans office by Romers from Flickr

A friend recently asked me about a common situation her clients face. They are artists who, before the internet, could only show their work to a large audience at art festivals. She said these artists hesitate to market their work online because they’re afraid that it could be stolen.

Could their work be illegally copied if they show it on the internet? Yes. I worked with an artist last year who had their entire catalog illegally copied.

Should they us the internet to market their work despite this risk? Probably. If you’re an artist you have to weigh the risk of having your work illegally copied against the benefit of reaching a larger audience.

My unsolicited advice to artists is to decide how you want to respond if your work is stolen before you put your work out there and plan accordingly.

  • If you want to sue the people who illegally copy your work, you have to register your copyrights with the U.S. Copyright Office.
  • If you want to license your work, meaning people can pay you for the right to reproduce your work on their sites, you need to have licensing terms and fees. This way people can legally purchase the rights to use your work and you can send a bill to the people who illegally copy your work. This recently happened to a friend of mine.
  •  If all you want to do is force them to remove the image when you detect someone’s stolen your work, you need to understand the Digital Millennium Copyright Act or know an attorney who does who can send the proper takedown notice on your behalf.

When you put your work out there, you should be diligent about watching the internet for potential infringement. Often times people think they can use your work if they provide an attribution and a link to the original. What they’ve really done is made it easy for you to determine who is using your work without your permission.

My two cents on this issue is you shouldn’t let your fears about copyright infringement prevent you from using the internet to market your work if you’re an artist, but you should have a strategy in place in advance for dealing with it when it occurs.

For more information on this and related topics, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed, available on Amazon.

You can connect with me via Twitter, Google+, Facebook, YouTube, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

Filed Under: Business Law, Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law Tagged With: , , , , , , , , , , , , , , ,
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