Pictures on your Phone – Who Owns the Copyright?

August 18, 2015 by Leave a Comment
No Pants 2015 Photo by Devon Christopher Adams, used with permission

No Pants 2015 – Photo by Devon Christopher Adams, used with permission

Here’s the scenario: You’re out to dinner with a group of friends. You ask your server to take a picture of your group with your phone. Your server obliges. The image is on your device; but who owns the copyright – you, the server, or the restaurant?

To get a copyright, you need an original work of authorship that is fixed in a tangible medium. Taking a photograph of a group of people constitutes an original work fixed in a tangible medium, even when it’s just a digital file on your phone. The copyright holder has the exclusive right to control where their work is copied, distributed, displayed, performed, and what derivative works can be made from it. This person has these rights the moment a work is created – they don’t have to register their work with the U.S. Copyright Office to obtain these rights.

Given this information, who owns the copyright in this situation?

Is it You?
You orchestrated the photo and it’s on your phone. You may be the only one who can physically copy, distribute, and use the photo – at least in regards to the first time it appears away from your device. I can’t say for certain that the law would say you’re the copyright holder since you didn’t physically push the button to create the photo, it’s unlikely that anyone would challenge you for copyright rights.

Is it the Server?
If it wasn’t for the server, this photo as it is wouldn’t exist. From that perspective, the server could argue that he/she owns the copyright since he/she pushed the button that created the image.

Is it the Restaurant?
If your job involves creating intellectual property, your employer is the author and owner of all the intellectual property you create while performing your job tasks. However, a server’s job isn’t to create intellectual property; their job is serving food and providing customer service. The restaurant probably doesn’t have any claim to the copyright in the image.

A restaurant may have policy on their social media profiles or posted in the restaurant that says you grant them a license to use any content you post about them. If you post the image online, they may be able to use the image without asking for additional permission, but they still don’t own the copyright.

So who’s the copyright holder – the server or the person who owns the camera? I’m not sure. I’d have to evaluate the specific facts of the situation. But here’s my question: does it matter? What is the likelihood that there are going to be problems related to this image? Will the server ever see or care if you post the photo? Probably not. And even if they do, I suspect he/she won’t care.

Copyright is a complicated issue, especially when it involves the internet. If you want to chat more about this topic, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

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

Burning CDs and Copyright Law

December 5, 2013 by 57 Comments
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 Twitter, Google+, Facebook, YouTube, LinkedIn, or you can email me.
You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

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

Happy Birthday Carter Law Firm!

January 3, 2013 by 2 Comments
Raul's Birthday Cake by lokate366 from Flickr

Raul’s Birthday Cake by lokate366 from Flickr

January 4, 2013 will mark the 1-year anniversary of Carter Law Firm. It’s been an amazing year. Some much has happened since the day I sent off my paperwork to the Arizona Corporation Commission and opened my firm’s bank accounts. I’ve learned so much about what it takes to be an effective business owner. Here are some of the key lessons I’ve learned.

1. Networking Can Be A Full-Time Job.
As a solo practitioner I am my business, so when I’m not doing work for my clients, I need to be out there promoting my business and networking with other business owners and potential new clients. I can easily attend 2-4 networking events a week. Networking Phoenix is a wonderful resource for networking opportunities in the Phoenix area. I used it a lot in my early days to learn about the chambers of commerce and other business groups in my area.

Early on, I went to every event I could attend. I learned that it takes a while to find my niches and watering holes where I could find clients and referral sources. I was pleased to become a member of Local First Arizona. It is a great group to meet awesome business owners and they have wonderful seminars.

2. Ask for Help.
There’s no reason for anyone in business to feel like they have to tackle any problem alone. I’ve found there are lawyers and business owners who will share their experiences, provide resources, and be a sounding board whenever I needed it. During the early days of my firm, I was on a first name basis with the state bar’s ethics hotline because I wanted to make sure I was doing everything right. I’m glad I’ve been able to pay it forward by sharing my experiences with other lawyers and business owners.

One thing I’ve learned as a business owner is that things are always changing so it’s impossible to know everything. It’s important to stay humble and teachable. And there are always new people to meet and connections to build.

3. Go After What You Want.
I’ve had to learn to be professionally bold as a business owner and to go after the experiences I want. If there’s a conference you want to speak at – apply. If you want to write a book – do it. If there’s someone you want to meet – send them an email or call them up. Just because you’re the new kid in town, it doesn’t mean you don’t have a lot to offer.

Another thing I’ve learned is you’ll never know how great you can be unless you try. Don’t fear success and don’t sell yourself short just because you have a new business.

I couldn’t be happier about my first year of business. I’m so grateful to everyone who helped make it such a huge success. I’m excited to see what the next year will bring.

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

Filed Under: News Tagged With: , , , , , , , , , , , ,

Can Kasperski keep the FnB Name?

November 29, 2012 by Leave a Comment

Old Scottsdale Sign by kmaschke from Flickr

Whenever I ask my friends where I should take my quasi-foodie parents when they visit, one of the most common answers I get is FnB. This little restaurant in Scottsdale has won a bunch of awards and gotten a lot of good press since it opened three years ago, including a mention in Food & Wine magazine. The owners Charleen Badman and Pavle Milic recently announced that they’re moving FnB to a new location at the beginning of 2013. Shortly after that, FnB’s soon-to-be former landlord, Peter Kasperski, announced he wanted to keep the name “FnB.”

According to Phoenix New Times, he came up with the name and he likes it, but does that give him ownership rights in the name?

Probably not.

A trademark is the mark used with a product or service that distinguishes it from its competition and informs consumers about the source and quality of what they’re buying. In regards to a restaurant, a mark could be the name, the way the restaurant is decorated (trade dress), logos, and/or slogans. When you have a trademark, you have the exclusive right to use it on your products or services in your established market. If your register your company’s trademark with the U.S. Patent and Trademark Office, you get the exclusive right to use your mark on your products and services nationwide. No one can start a business or create a similar product with a mark that is similar to yours.

Unfortunately, no one has registered “FnB” with the USPTO for use with a restaurant. If Badman and Milic did that, they would have exclusive control over who could open an FnB restaurant anywhere in the U.S.

All is not lost in this story. If Badman and Milic can argue that they are known nationwide, they can make the argument that their established market is the entire country so no one can call their restaurant “FnB” without their consent. There was a case in 1948 about a fancy New York restaurant called “The Stork Club.” They had spent thousands of dollars in nationwide advertising and had been featured in news articles in newspapers throughout the country. They were able to force a small tavern in San Francisco called “Stork Club” to change its name because they made the argument that consumers might think the tavern was affiliated with the restaurant, which could hurt the restaurant’s reputation.

What about Kasperski’s statement that he thought of the name? Trademark rights come from using the mark in commerce. From what I can tell, he’s leased property to a company that used the name. If he didn’t use it himself, he has no trademark rights in the name.

According to Phoenix New Times, Kasperski claims he’s partners with Badman and Milic. I looked up Badman and Milic’s LLC and he’s not listed as an owner, so I’ve seen no evidence that supports that claim.

Kasperski also said Badman and Milic will be successful without the FnB name. Given their success so far, that is probably true; however, that doesn’t change their rights in their business’ name. They were the ones who used the name in their business and build a stellar reputation. Unless there are contracts that explicit give Kasperski rights in the FnB name, I foresee him struggling to make a valid claim in the trademark rights.

The take away lesson: If you want to avoid problems like this, talk with an intellectual property attorney about registering your trademark with the USPTO.

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

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