Options When Someone Violates Your Creative Commons License

September 13, 2012 by 6 Comments

Portion of C.C. Chapman’s Twitter feed – September 10, 2012

I saw the following tweet the other day by author C.C. Chapman: “Since my photos are licensed under “non-commercial” is this a legal use of my Chevy Volt photo by Yahoo?” The question was followed by a link to an article on Yahoo Auto about GM’s report regarding whether Chevy Volts are being sold at a loss. The photo accompanying the article is C.C. Chapman’s photo of a Chevy Volt that he published on Flickr with a Creative Commons license.

This license requires anyone who uses the image to give C.C. Chapman the attribution, only use it for non-commercial use, and not alter the photo in any way. If the image appeared on Chevrolet’s blog, there would be a strong argument that Chevy uses its blog as a marketing tactic to get people to buy its vehicles; therefore every image on the blog is being used for a commercial use. In that case, the use of the image would have violated the license and C.C. Chapman’s copyright.

However, Yahoo published the article. Yahoo isn’t trying to sell cars. It makes money by selling ads and it may charge advertisers based on the number of hits a page gets. C.C. Chapman could make an argument that Yahoo’s use of his photo had a commercial goal; but Yahoo could fire back that it was reporting the news so its use of C.C. Chapman’s photo was protected by fair use. Yahoo could show that it has a history of news reporting and that its articles are accepted as news, not a marketing ploy.

But let’s say this photo appeared on a commercial website in violation of the Creative Commons license. That’s copyright infringement. What could C.C. Chapman do about it?

  1. Do nothing and be happy about the exposure.
  2. Get the photo removed by sending a DMCA takedown notice.
  3. Send the company a cease and desist letter.
  4. Send a bill with a licensing agreement and a letter that says the publisher has committed himself to paying a licensing fee since he already used the photo.
  5. Sue for copyright infringement.

A lot of people would be happy about the exposure and may opt to do nothing. The downside of doing this is someone else could use your work and make a valid argument that your inaction set a precedent that others could use their work for commercial purposes. You may want to send a letter that offers to license the photo in exchange for the exposure and states if the company doesn’t license it then they have to remove it. That way, you will still get your exposure but you still exert your copyright rights in your work.

If you have questions about how to protect your intellectual property rights, contact an intellectual property attorney (like me) in your community.

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

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

DMCA Takedown FTW: The Follow-up

July 19, 2012 by 2 Comments

Don't Steal by Uncleweed, Ruth Carter, Carter Law Firm

Don’t Steal by Uncleweed

Last week I posted a blog about my experience sending a Digital Millennium Copyright Act (DMCA) takedown notice to Google. A few questions have come up since I put up the post, and I wanted to address them.

When I first noticed that another blogger had taken a photo from my blog and posted it on her site, one of my friends asked me why I sent a DMCA takedown notice instead of just sending her an email. That’s a valid question, and an option I considered.  I chose to send a DMCA takedown notice because I’d never sent one before I wanted to experience the process. I had no malicious intent. The blog where the copyright infringement was occurring was taken down in about 24 hours, and the blogger who stole my work changed the image and had the post back up in less than a day after that.

It seems like a lot of people use images they find online without thinking about the potential legal implications. This situation could have been a lot worse. My blog is not currently registered with the U.S. Copyright Office, but that’s on my to-do list. If I registered my blog and sued for infringement in this situation, I would only be eligible for my actual damages, which is probably nothing.

If you steal an image from a blog that was registered with the U.S. Copyright Office within 3 months of publication or 1 month of learning of the infringement (whichever happens first), you could be sued for copyright infringement and ordered to pay the copyright owner’s statutory damages and attorneys’ fees. In the worst case scenario, you could be ordered to pay up to $150,000 in damages plus attorneys’ fees.

So what’s the take home lesson? Be thoughtful about the images you use on your blog. Only use images that are available under Creative Commons. If there’s an image that you want to use that doesn’t come with a Creative Commons license, get permission from the copyright owner to use the image.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

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DMCA Takedown FTW

July 12, 2012 by 11 Comments

Poolside Studying, Ruth CarterI think I do a decent job monitoring my blogs with my sites’ widgets and Google Analytics. I like to see where my readers live and how they ended up on my sites. When I see that someone got to my blog from a site that’s unfamiliar to me, I try to find the post that linked to my site to see what it said.

Poolside Studying, Ruth Carter

This is the image that was stolen from The Undeniable Ruth

This week, someone got to The Undeniable Ruth via a blog on BlogSpot. I checked out that blog and found that the blogger didn’t write a post that referred to me or a topic I’ve written about. She copied an image from my post about studying in the pool. She mentioned the name of the post she got the image from, but she didn’t ask my permission to use the image or even give me an attribution. Unfortunately for her, she copied one of the few images that I personally took with my camera phone and own the copyright to it. I decided to send a Digital Millennium Copyright Act (DMCA) takedown notice to Google, which owns BlogSpot.

The DMCA is a law that provides a safe harbor to companies that don’t control the content on their sites. They have to remove or disable access to the infringing material when they receive a DMCA takedown notice or else they can be liable for copyright infringement. To qualify for protection under the DMCA, you have to register a designated agent with the U.S. Copyright Office. This is the person you send the takedown notice to.

Google has a DMCA agent, so I sent them a takedown notice to get my picture taken off BlogSpot. A takedown notice is a simple letter that must include the following:

  1. Your physical or electronic signature,
  2. The identity of your work that is allegedly being infringed,
  3. The specific URL for the website where the infringement is occurring,
  4. Your contact information (i.e., your address, telephone number, and/or email address),
  5. A statement that you have a good faith belief that the material violates the law or the copyright owner’s rights, and
  6. A statement, under penalty of perjury, that the notice is accurate.

I emailed my takedown notice to Google yesterday and I got a response today that informed me that the post was taken down. I tried to visit the BlogSpot post where my photo was published, and verified that the blog post was taken down. I thought they were only going to remove the photo. She can put the post back up if she wants, just not with my picture.

If you create content, it important to keep an eye on your analytics so you can detect when someone steals your work. I was pleased to see that the DMCA takedown process was fast and easy and that Google was responsive to my notice.

If you detect someone’s stolen your content, consult an attorney to determine your options for recourse.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

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

Can I Publish an Email in a Blog Post?

July 5, 2012 by 16 Comments

Letter of Intent by Nick Ares, Ruth Carter, Carter Law Firm

Letter of Intent by Nick Ares

My friend in California recently contacted me and said that he received an email from a professional association he belong to and that he wanted to share it in a blog post along with his response. As an Arizona attorney, I can’t provide legal advice to California clients, but it made me think about what potential legal repercussions I could face if I wanted to publish an email in a blog.

Defamation
Defamation usually involves making a false statement about a person or entity to a third party that damages their reputation. Publishing a blog post is definitely a communication to a third party, but there’s no false statement if you publish the email as it was written and if your response contains your true reaction to the message.

Public Disclosure of Private Facts
Public disclosure of private facts is an invasion of privacy claim where you tell the truth about a person but you release information that a reasonable person would expect you to keep confidential and they would be highly offended if you shared it. This is the type of claim you could face if you break up with your significant other and release the sex tape you made during your relationship.

In terms of publishing an email I received, I’d review the message and the association’s rules to see if communications need to be regarded as confidential. If not, I probably wouldn’t hesitate to republish it in a blog because there’s probably nothing in it that would be high offensive to share with others.

False Light
False light is a claim where you’re accused to telling the truth about someone but you manipulate it in a way that suggests something that is false. If I were going to republish an email, I’d probably publish the entire message to avoid being accused to manipulating the message to make the person look worse than they are.

These legal claims are all state law claims. If I publish an email written to me by a person or on behalf of an organization and they get pissed at me, they’re going to sue me where they live. I’d have to check the exact verbiage of these laws in that state, not just my home state. I prefer  to not set myself up to be sued across the country and have to go there to defend myself.

EDIT: My lawyer friend reminded me of one more claim you have to think about if you’re going to publish an email in a blog post: Copyright Infringement.
The person who wrote the email likely has copyright rights in their verbiage, include the right to decide where it’s reproduced and displayed. Most people don’t register their copyrights with the U.S. Copyright Office, so if you wait three months to publish your blog post, they can only come after you for their actual damages, which will probably be lower than statutory damages. In some cases, they could still get a decent settlement.

And as always, if you’re going to push the envelope with your blog posts, it’s easier and cheaper to consult a lawyer (like me!) in advance than to have to hire one after you’ve been sued and you have to defend yourself.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

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

I <3 The Oatmeal

June 28, 2012 by Leave a Comment

Oatmeal Porridge by Alpha

Oatmeal Porridge by Alpha

I want to use this week’s post to voice my support for Matthew Inman, aka The Oatmeal. He draws comics that make me laugh so hard, especially the ones about real life situations. I can always count on him to lift my mood. I saw him at his book signing at Changing Hands in Tempe, and he’s the sweetest guy.

Matthew Inman by Gary BarberFor those of you who haven’t been following the story, Oatmeal was recently threatened with a lawsuit if he didn’t pay FunnyJunk LLC $20,000. FunnyJunk is a website where people can post humorous photos and it apparently it was hosting hundreds of Oatmeal’s images in violation of his copyright. Oatmeal wrote a post about what was happening and accused FunnyJunk of making $100,000+ off his work. FunnyJunk claimed this was a false accusation of willful copyright infringement.

Some people might be been scared by the threat of a lawsuit, but not Oatmeal. He published an awesome blog where he refused to pay the $20,000 and instead announced that he’d try to raise $20,000 for charity in a venture called Operation BearLove Good, Cancer Bad. Oatmeal ended up raising over $200,000 for charity and was sued by FunnyJunk’s lawyer in the process. Hopefully that case will be dismissed soon and Oatmeal can disseminate the funds.

As a lawyer I initially cringed when I saw Oatmeal’s plan, but I was relieved when I saw that he has an awesome lawyer who appears to be doing the appropriate lawyer things on Oatmeal’s behalf. I think Oatmeal’s grace and strength in the face of adversity is admirable. I think if you feel you’re being unjustly accused of a wrongdoing, you should stand up for yourself and not do whatever you have to do to make the threat go away. I applaud Oatmeal for addressing this situation very publicly and showing his opposition a lot of respect.  When Oatmeal’s fans starting calling FunnyJunk’s lawyer, he told them to stop and to donate to Operation BearLove Good, Cancer Bad if they wanted to help.

Much love to you Oatmeal! Thank you for demonstrating the power and influence you can use for good when you build a solid following by doing excellent work. Your hilarious comics and charming personality made you what you are and I’m so glad you didn’t back down from this fight. I hope your legal troubles are resolved soon.

Filed Under: Geek Law, Intellectual Property, Legalities of Blogging Tagged With: , , , , , , , ,

Phoenix Comicon Badge Art Being Ripped Off

June 21, 2012 by Leave a Comment

Phoenix Comicon 2012 Badge Ruth Carter

Picture from my 2012 Phoenix Comicon Badge

I recently wrote a post about copyright, fair use, and fan fiction and I did an analysis of Marty Freetage’s artwork that was on the badges for Phoenix Comicon this year. It was an awesome parody of Angry Birds and The Avengers. Parodies are generally permissible under the fair use doctrine and I thought Marty’s work was original enough that the copyright holders for Angry Birds and The Avengers probably wouldn’t come after him or Phoenix Comicon for copyright infringement.

Shirt on Gabilife.com

This week I was surprised to see a t-shirt for sale on Gabilife that looks exactly like Marty’s picture. A lot of people on Facebook posted that Gabilife used Marty’s work, changed the background, and stuck it on a shirt. Whoever owns the copyright in the badge art has good reason for believing that their Gabilife is infringing on their work.

This story gets more complicated by Gabilife claims to be a company in India. It raises the question of what are the possible recourse options to make them stop selling the shirt. If they have a presence in the United States, whoever owns the copyright could go after Gabilife for infringement as if they were a US-based company.

Gabilife’s terms state “Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider’s Designated Agent.” I searched the agent list on the US Copyright website and I didn’t see a listing for Gabilife or Gabi. That makes me wonder if they just copied someone else’s terms and conditions without registering an agent.

If owned the copyright for the original badge art, I’d register the copyright in the artwork immediately. A copyright holder maximizes their options for recourse if they register their copyright within 3 months of publication or 1 month of learning of the infringement, whichever happens first. If this art hasn’t been registered, that window could still be open.

If the work was registered in time, I’d sue them for copyright infringement if it was a US company. If the company doesn’t do business in the US, there’s probably no point to suing them. If suing them would be pointless, I’d either send a DMCA takedown notice to the email address listed on their site and to their snail mail address. If I wanted to be really bold, I would send them a licensing agreement and a bill that states that they agreed to the licensing agreement by using the artwork without permission.

I wouldn’t expect them to pay me, but it would be validating.

So what is the take away message?

  1. Register your copyrights shortly after creating an original work, especially when you’re as awesome as Marty.
  2. If you suspect someone is ripping off your work, contact a copyright attorney in your community (like me!) to help you strategize and execute your response.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

 

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

Register Your Copyrights

June 14, 2012 by 6 Comments

Poor Frog & Macrograpy by Hamed Saber Ruth Carter

Poor Frog & Macrograpy by Hamed Saber

I frequently get questions from people claiming that someone copied a photograph that they own and republished it without their permission. They want to know what their options are for financial recourse. I start by asking them two questions.

  1. When did you take the photograph?
  2. Did you register your copyright?

Most of the time the photograph in question was taken years ago and the photographer didn’t register their copyright.  The majority of artists know that they get exclusive copyright rights the second they create their work in some tangible form, but most of them don’t know that they have to register their work with the U.S. Copyright Office to maximize their protection and options for recourse when someone steals or illegally uses their work.

By creating an original literary, visual, or audiovisual work, you get the exclusive rights to copy, distribute, display, perform, and make derivative works of the original work. When and whether you register your copyright determines how much you might collect if someone violates your rights.

The Copyright Act says you must register your work within 3 months of publication or 1 month of learning of the infringement (whichever happens first!) to be eligible for statutory damages and attorneys’ fees. Statutory damages is money the court can require the infringer to pay you regardless of how much money you lost because of the infringement. If the court decides that the infringer knowingly and willfully stole your work, they can order the infringer to pay you up to $150,000 per violation plus the cost of your attorney!

If you don’t register your copyright within 3 months of publication or 1 month of learning of the infringement, you can only collect your actual damages. This is the amount of money you lost because of the infringement and/or what the infringer earned by copying your work. There are times when your actual damages is $0 because you didn’t lose any money and the infringer didn’t make any money due to the infringement. If you had registered your work within the time frame stated in the Copyright Act, you would have been eligible for statutory damages and attorneys’ fees regardless of our actual damages.

It’s frustrating when I have to tell clients and friends that their options for financial compensation are few or non-existent, because it’s a preventable problem. You can register a copyright electronically online for as little as $35. You can register multiple photographs with one registration application and fee. If you are a professional photographer, you can register each photo shoot with one copyright. Whenever you finish the final product from a shoot, which I suspect is within 3 months of the shoot, take a few minutes to register your work with the U.S. Copyright Office. You can even pass the cost of registration onto your clients by raising your fees $35.

Registering a copyright is fast and easy, and you can do it yourself if you don’t want to a pay a lawyer to do it for you. If doing it by yourself the first time scares you, hire a lawyer to walk you through the process. It doesn’t take much time or money to maximize your protection , so do it.

Feel free to connect with me via Twitter, Google+, Facebook, and LinkedIn.
Please visit my homepage for more information about Carter Law Firm.

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