Monday, May 25, 2009

Vicarious Copyright Infringement - Who is Controlling Who? by Brian A. Hall

Many are familiar with the claim of direct copyright infringement. In fact, people may also be aware of the indirect claim for contributory copyright infringement. However, a cause of action that is overlooked at times and one that should be considered where appropriate is worth discussing. A claim for vicarious copyright infringement requires three elements.

First, there must be a direct infringement by a primary party. This first element essentially requires that a valid direct copyright infringement action exists. Put another way, there must be allegations that the plaintiff owns a valid copyright and that the defendant has copied that copyright.

Second, there must be a direct financial benefit to the defendant. Such things as additional customers, increased revenue, or an increase in user base is likely to satisfy the second element. Third, and finally, is the right and ability to supervise the primary infringer on the part of defendant.

This third element really comes down to control. Similar to an employer-employee relationship, a court will evaluate the extent of control that the alleged vicarious infringer has over the primary infringer. Such things as directing actions, monitoring conduct or performance, and the ability to prevent a particular type of action will help dictate whether or not sufficient control exists so as to establish the claim.

Ultimately, understanding the copyright ownership, who uses the copyright, who derives benefit from the copyright, and other potential parties affected by the copyright will be critical in determining whether or not a valid claim for vicarious copyright infringement exists.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm specializing in complex litigation, intellectual property matters, internet law, and copyright registration and copyright infringement matters. Speak with a copyright attorney today and learn more about the importance of understanding the intricacies of vicarious copyright infringement and other copyright issues.

Sunday, May 24, 2009

Copyright For Artists by John A Burton

What can be copyright protected?

Copyright protection applies to literary, dramatic, musical, and artistic works, plus a few other creative activities. Artistic works include paintings, drawings, engravings, photographs, sculptures, collages, technical drawings, diagrams, maps and logos, etc.

In order to attract copyright protection, artwork must be "original". This means it must be the result of independent creative effort.

A copy of something that already exists cannot be original, but if an artwork is similar to something that already exists, but which has not been copied, then it may be original (*).

Copyright does not protect ideas for an artwork: it is only the work itself that is protected. If you have created an "original work", you will have copyright protection without having to do anything to establish this. In the United Kingdom (and most other parts of the world), there is no official registration system for copyright.

For artistic works, in the UK, the term of protection of copyright is - for the life of the creator, plus 70 years from the end of the year in which they die.

What is the benefit of copyright protection?

Copyright protected work must not be reproduce in another medium without the owner's permission. This includes activities such as photocopying images, using images for cross-stitch patterns, painting from a photograph, publishing images on the Internet, and so on.

Copyright should stop others from using your work without your permission. The existence of copyright may be enough to prevent others from to using your material, but it also gives you the right to take legal action to stop misuse, and to claim damages.

Copyright owners generally have the right to authorise or prohibit the use of their work, and so realise the opportunity to make commercial gain from the use of their work. You could, for example, sell or license your copyrighted images for use by others.

(*) For the artist, copyright is a double-edged sword. Painters in particular should avoid breaching copyright when working from photographs. In the case of landscapes, it would be difficult to prove breach of copyright, since many scenic locations are generally accessible to the public. But with celebrity portraits, the artist should proceed with caution; it would be impossible for most artists to have a celebrity sit for them, and therefore it is easier for a copyright holder to prove that their photograph has been copied.

Using copyright protection

There are a number of steps Artists should take to help protect their work, especially if it is published on the Internet. It is advisable to mark all work with the © symbol. This lets others know they should not use the artist's work without permission. The © symbol should have the name of the copyright owner next to it. This helps anyone wishing to use the artwork to trace the copyright holder. If you also put the year in which the work was created next to the © symbol, this will let others know when the term of protection started.

If your artwork is published on the Internet, there are a number of safeguards you should consider. These will be the subject of further articles.

Portraits by John Burton

Friday, May 22, 2009

Why Fans Are the New Music Copyright by Mika Libambu Schiller

Singer-songwriter Cat Stevens says he may sue Coldplay. Did you hear about this? He said that his son brought it to his attention that "Viva La Vida" sounds like his 1973 song "Foreigner's Suite" and that he might consider suing for plagiarism.

But first, he wants to wait and see what happens with U.S guitarist Joe Satriani who has already sued Coldplay for copyrights infringement. Satriani says parts of his song "If I could fly" were recycled in "Viva La Vida".

What do you think about all this? I think it's idiotic. The music business of the last several decades has been the biggest property protection scheme of all time. The industry became synonymous with the word lawyer. You were instructed to copyright every single composition because it mattered a great deal to your CD sales.

Now, indie musicians know they can't protect their music. The rules have changed dramatically. Cat Stevens must know this; that's why he's eagerly awaiting the Satriani verdict.

I used to know a music lawyer at the firm of Selverne, Mandelbaum and Mintz in New York. He thought he was the shit until he lost his job early this year because the firm's struggling to find work. This is a firm that has represented Ludacris, Nelly and Cassie. The walls in their waiting room were festooned with awards and plaques when I was in there several years ago. But now this dude's out of a job. It's when shit like this goes down that I know the traditional record industry is screwed.

The last thing an indie music artist in this day and age really needs is to be losing sleep over protecting intellectual property. I'm not saying you should let people rip your songs word for word(that rarely happens anyway). I'm just saying, times have changed and you have very little control over what happens to your intellectual property these days.

As a result, instead of being in a constant protectionist mindset when it comes to your music, you should be focusing mostly on collecting what's called mindshare. It's the best way to protect yourself and compete.

Media futurist Seth Godin writes on his blog about the elements of a business model. They are:

1. What compelling reason exists for people to give you money? (or votes or donations)

2. How do you acquire what you're selling for less than it costs to sell it?

3. What structural insulation do you have from relentless commoditization and a price war?

4. How will strangers find out about the business and decide to become customers?

All four of these will always be relevant to any business no matter the era. Business is business. It's just the form each takes that changes with the times. All of these are also highly relevant to the music business.

Number three is important because that's where mindshare fits in. And that matters to you right now. If you want to copyright all of your intellectual property, that's fine, but all I'm going to say is good luck with that. The labels have all been there before and failed.

The way you protect yourself now isn't by copyrighting and suing the hell out of people. It's by building a network that's difficult for someone else to disrupt. Personal branding is an important aspect of all this. We live in an age of personal branding. We also live in an age where it's hard to persuade people with soulless sloganeering. People want stories to be convinced. They want you to persuade them with your stories, not your sound bites.

Music is no different. People want to feel like you're with them. Like you're a good friend. Not hiding behind a wall of legalese.

Thing is, once people are loyal to you, it's hard for someone else to come in and take them from you. Once you've made people loyal to you, you've captured mindshare. It's how you protect yourself from competition. And it's powerful. Because in this day and age, marketing is largely about storytelling, there are many ways to capture mindshare.

Suing people doesn't work anymore. It just pisses people off.

Mika Schiller is a writer for the Indie music website MADE and he writes about where the music industry's headed and how it relates to the Independent Music artist. He gives irreverent career and personal development advice to the Indie music artist. For more great writing and irresistible advice, along with a free report on effective MySpace music marketing, please visit

Monday, May 18, 2009

Using Copyright Free Content on Your Site by Gerard Simington

Using copyright free content on your site is a smart economic move. These days, any buck saved is a valuable buck indeed. That being said, be sure you understand the nature of what you can and can't do with copyright free content.

First off, let's make sure we understand what is being discussed when we say "copyright free". Copyright is a form of intellectual property. It conveys to the author of "works" the right to exclusively use those works. The author also has the option of licensing those works to another in exchange for something - usually a royalty. Copyrightable works include a host of things, but the most common range from books to magazine articles to software code and images.

Traditionally, the only time one could use a copyrighted work without paying a royalty was when the copyright expired. That's roughly 90 years, which makes the timing a bit of a stretch. The web changed all that. The idea of creating free works just for the pure joy of it came to the forefront. Today, we find a host of free content used all over the web...perhaps even on the site you are looking at now.

Using copyright free content is, of course, perfectly fine. That being said, the "free" element of the content is not absolute in most cases. The creator of the works doesn't mind if every Tom, Dick and Harry uses it, but is going to have a problem if Nike picks it up and uses it in an advertising campaign. Would Nike do such a thing? No, but it highlights the issue of the copyright license.

Every copyright work comes with a license. When you use a copyright free work, make sure you read the license. Why? It will prohibit certain uses in commercial applications. If you do violate that license, you could be sued for a ton of money. That obviously would not be a good result.

Let's look at an example. Let's say I am looking for a free image for my site. I head over to a stock photo site and find something I like. I download it for free and post it on my site. I like the image so much that I crop it and then make it part of my logo. Two years down the line, my site turns into the next Facebook and I am making money hand over fist. My logo is being seen by million...including the person who created the original picture. If I had read the license for the photo, I would've realized the use of it for commercial works was barred. Since I didn't, I am going to be sued for a bundle of money and I am going to lose. "Copyright free" suddenly isn't so free after all!

When using free content off the web, you must understand the free classification comes with restrictions. Read the license to understand where the line is drawn and make sure you don't cross it.

Gerard Simington writes articles about internet law for

Sunday, May 17, 2009

Copyright Infringement and the Critical Time Frames Related to Registration by Brian A. Hall

The matters all start out the same - there has been an infringement of copyright. While numerous issues are immediately identified and debated, issues related to important dates and deadlines must not be overlooked. Copyright owners and attorneys alike should be asking several questions:

1. Has there been a federal registration for the particular work that is the subject of copyright infringement matter?
2. If so, when was the copyright registered?
3. When was the copyrighted work first published?
4. If the copyright is based upon common law, will a registration be useful now?
5. Has the copyright owner forfeited any rights in light of certain important dates?

These questions become critical in any copyright infringement matter. Copyright rights persist for a period of the life of the author plus 70 years. This duration cannot be renewed. Once this time is up, the work that was once covered by a copyright registration is now part of the public domain. Therefore, an infringement of copyright may not have actually occurred.

On the other hand, an existing copyright registration is important for several reasons when there is unauthorized use. Registration before or within five years of publication of the particular work entitles its owner to a presumption that the copyright is valid in an infringement lawsuit. Moreover, registration within three months after publication or before infringement results will also entitle the copyright owner to statutory damages and attorneys' fees. The benefit of a presumption of validity, coupled with the leverage or ability to actually recover statutory damages and attorneys' fees, are extremely important in any copyright infringement lawsuit. Therefore, the copyright owner would undoubtedly want to take advantage of these benefits and not forfeit its ability to do so because of a failure to understand these important time frames.

Ultimately, identifying these time frame related issues, along with the critical answers to them, will allow a copyright owner to act accordingly. Similarly, the alleged infringer would want to fully understand both the limits and risks associated with the work that is the subject of the copyright infringement. While each case is unique with specific facts and issues, these principles are applicable to all.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm practicing complex litigation, intellectual property matters, internet law, and copyright infringement matters. Speak with a copyright attorney today and learn more about the importance of registering, monitoring, and protecting your copyrighted works.

Friday, May 15, 2009

Contributory Copyright Infringement - How to Know When it Applies by Brian A. Hall

In order to properly plead a cause of action for direct copyright infringement, a plaintiff must plead ownership of a valid copyright and be able to show that the defendant copied a protectable expression or violated another right of copyright. However, just because a party was not a direct infringer does not mean that it does not have liability under copyright law.

Contributory copyright infringement is an indirect type of infringement. In order to establish such a claim, one must allege that the defendant had (1) knowledge of the infringing conduct by a third party and (2) induced, caused, or contributed to that infringing conduct. Thus, one must be able to establish the two elements of knowledge and, as the name of the claim itself suggests, contribution to the infringing conduct. Keep in mind that it is insufficient for one to merely have contributed to the general business of the infringer.

Rather, in order to be held liable for contributory copyright infringement, one must have materially contributed to copyright infringement, which has oftentimes been held to mean some sort of assistance that bears a direct relationship to the infringing acts of the direct infringer.

Just as a direct infringer of copyright is liable for either actual damages and profits of the infringer or statutory damages, one who has committed contributory copyright infringement may also be subject to the same types of damages. Therefore, it is critical that all parties' involvement as it relates to the infringement is evaluated in order to enable decisions to be made as to what types of claims may be actionable.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm specializing in complex litigation, intellectual property matters, internet law, and copyright registration and copyright infringement matters. Speak with a copyright attorney today and learn more about the importance of understanding the intricacies of contributory copyright infringement and other copyright issues.

Monday, May 11, 2009

Why is it So Important to Copyright Your Work? by Melissa M Gordon

Anyone working in a creative industry will be fully aware of the pernicious extent of the crime of copyright infringement. Anyone who has been victim to such activities as plagiarism will know that it is a crime that affects the victim in a way not dissimilar to being burgled. Creative workers often put a lot of their emotion into making their work as enjoyable for the reader, viewer or listener as they possibly can, and to see someone else get credit for something into which you have put blood, sweat and tears is as galling as you can possibly imagine. It is worth taking every step possible to protect your work in such cases.

In recent years there has been a boom in the Internet-based pursuit of making images using PhotoShop in order to create a satirical image or a parody of something in the public eye. The amount of work and creative intelligence that goes into such images is variable, but in many cases the feedback given to such images puts it very firmly in the camp marked "creative art." These images have proven to be so popular that communities have built up to showcase them, and this has attracted the attention of other areas of the media, including printed magazines and newspapers. It is not unheard of for these publications to take the images and compile them into a story. Although this could ordinarily be considered to be a positive for the creators - recognition is good for any artist - it is not quite so simple.

The standard practice where these works are concerned is to reproduce them without giving any credit to the person who created the image. This is all the more prevalent because the people creating the images often work under a screen name which gives them a level of anonymity. Proving the work to be theirs is often far from simple. One solution to this is to "watermark" your images. Often, however, the watermark needs to be placed on the fringes of the picture in order to keep the integrity of the image. In cases like this, newspapers have been known to "crop" the images, thus removing any identifying watermark.

In many ways, the crime of plagiarism is like every other premeditated crime - as soon as a new way of combating it is discovered, the criminal changes their tack and finds a way around the problem. This has led to a number of frustrated artists, seeing their work getting the recognition it deserves, but with the credit going to a corporation who had nothing whatsoever to do with the creative process. There are also issues surrounding media appropriation of popular trends, which can lead to a loss of overall quality control and damage being done to the art form. A lot of thought is required if plagiarists are to be thwarted in their efforts to pass off other people's work as their own. It is to be expected that this will include the artists becoming more aware of, and more prepared to exercise, legal solutions to the problem.

Disclaimer: This article is for informational and entertainment purposes only, and should not be construed as legal advice on any subject matter. is a complete online resource that compares the legal services offered by various online companies. Find the best company for your copyright search needs at

Saturday, May 9, 2009

How to Copyright by Michael L Leigh

Copyrighting, or protecting a written or recorded work as an author is much easier than it sounds. The Library of Congress has forms that can be completed on their website and sent in electronically with a fee to obtain a copyright. Whether it is a book, college thesis, music or film recording, or syndicated column, a copyright can be purchased to protect an author's intellectual property.

Owning a copyright grants certain rights to the author. For example, a copyright holder grants others permission to reuse intellectual material for personal use. The law does not however allow any reprinted material to be resold for profit, such as a homemade DVD or other video taped from the original source. Schools and other institutions that may require an individual to make copies for distribution through xeroxing to students or other individuals must also make sure that no money is received in return, or that the copies appear in another publication without permission of the original author.

After logging onto the Electronic Copyright Office on the Library of Congress site, a short registration form must be filled out before the online copyright form can be accessed. Once registration is complete, then a copyright application form can be filled out. Payment is next which can be made through a major credit card or electronic check. Lastly, the work being copyrighted can be uploaded. A link to the types of files that are readable by the Library of Congress electronic office is provided. Files for documents, data, images, audio and video are included in this list. The basic copyright fee for an individual work costs $35.00. A notarized copy of your copyright certificate is sent to you approximately two to three months after you send your application in.

If you'd like to learn more visit this page on how to copyright free or this page on copyright free music. I hope you've found this article informative.

Thursday, May 7, 2009

Copyright For a Website - What You Need to Know by Brian A. Hall

The question often arises whether or not placing a copyright notice on one's website is sufficient to protect against third party infringement. While placing a notice is better than not having one at all, it is important to recognize that the protection truly lies in the enforcement of one's copyright. Therefore, the best way to stop someone from infringing your copyright and/or recover damages and attorney's fees for such infringement, is to file a copyright with the United States Copyright Office. When filing a website copyright, there are several considerations. First, it is important to remember that the requirements for a website copyright are no different than those requirements to have any copyright. Namely, one must create and fix in a tangible form the website in order to be entitled to copyright protection. Unlike other copyrights pertaining to text, a photograph, a computer program and the underlying source code, a music recording, or some other material, websites often include all of these types of material. As such, when drafting the copyright application, using Form TX, it is important to specifically identify for what you're claiming protection.

In addition, those seeking copyright protection often overlook the fact that a filed copyright pertains to exactly that which was filed. Therefore, when an update is made to a website, ideally a new filing should be made. While a copyright for the original website may offer significant leverage over an alleged copyright infringer, ensuring that the exact copy of the website and material contained therein is subject to a valid copyright registration with the Library of Congress, you will be in an even stronger position to enforce your rights and qualify for statutory damages. While filing every day in order to protect your online work may not be an option, it is often recommended that a filing should occur upon redesigns and major updates.

Finally, filing for a copyright for a website does protect the website and offer some protection to the content. However, having individual copyrights filed for that content, such as a particular photograph, image, or other copyrightable work, is advisable so that there is no question about confusing similarity if the alleged infringer uses only a portion of your website. Ultimately, filing for a copyright is a relatively inexpensive process and one that can lead to more successful enforcement of your intellectual property and a greater return on investment should you seek damages for that infringement. The ability to pursue a copyright infringement action in a federal court is dependent upon you having registered or attempted to register and been refused registration with the Copyright Office. Therefore, if you are going to look to protect your exclusive rights to distribution, display, reproduction and any other rights, filing for a website copyright is worthwhile.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm specializing in complex litigation, intellectual property matters, internet law, and copyright registration and copyright infringement matters. Speak with a copyright attorney today and learn more about the importance of understanding the intricacies of website copyright and other copyright issues.

Monday, May 4, 2009

Infringement of Copyright - What Kind of Damages Are Available by Brian A. Hall

Under the Copyright Act, an infringer of a copyright is liable for either the owner's actual damages and any additional profits of the infringer or statutory damages. It is within the discretion of the plaintiff, or individual seeking to protect his or her copyrighted work, to elect either actual damages or statutory damages. More often than not, the owner will elect statutory damages where that owner has registered the work with the Library of Congress. The reason for this is that the owner may not be able to establish actual damage to the copyright, to the owner's business, or ill-gotten profits of the infringer in such a way that the total amount is greater than that which is available under the Copyright Act for statutory damages.

That said, it is important to note that courts, within their broad discretion, may look to actual damages suffered when determining what the statutory damages award should be. However, there are limitations within the Copyright Act that control the amount of statutory damages on a minimum and maximum basis. For example, a willful infringement of a registered copyright enables the court to award statutory damages up to a maximum of $150,000. However, where the plaintiff fails to sustain its burden of proving willful infringement, the court may reduce the award of statutory damages to a minimum of $200. Typically, an owner pursuing an infringer will be limited to statutory damages between $750 and $30,000 for the infringement of one work.

While statutory damages are intended to create an incentive for owners to protect their valuable intellectual property, and conversely to deter the unauthorized and unlawful use of another's copyright, the ability to recover costs and attorneys' fees is yet an additional motivation of some owners when seeking to redress copyright infringement. Once again, the importance of a federal registration of a copyright becomes clear because not only are statutory damages available, but attorneys' fees and costs are also available in an infringement lawsuit.

In sum, it is important that an owner understands what damages may be available to redress infringement of copyright. Likewise, an entity accused of copyright infringement should understand not only the legal exposure, but must also understand the financial exposure. With these principles in mind, owners can make educated decisions regarding which works to protect with federal registrations, how often to file such registrations, and whether to file as compilations, understanding that infringement of such compilation will be limited to statutory damages for one work.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm practicing complex litigation, intellectual property matters, internet law, and copyright infringement matters. Speak with a copyright attorney and learn more about the importance of understanding the intricacies of infringement of copyright.

Saturday, May 2, 2009

Important Deadline Extended in Google Book Search Copyright Settlement

The federal court overseeing the Google Book Search Copyright Settlement today extended the Opt-Out Deadline in the case from May 5, 2009 to September 4, 2009 (the "Extended Opt-Out Deadline"). The Extended Opt-Out Deadline is the new date by which class members must decide whether to remain in the Settlement Class and receive the benefits of the Settlement, object to the Settlement, or opt out of the Settlement.

The change in the Opt-Out Deadline has caused the Final Fairness Hearing date to be rescheduled, from June 11, 2009 to October 7, 2009. This is the new date of the hearing for the court to consider whether to grant final approval of the settlement. All other deadlines and key dates in the case remain the same, including May 5, 2009 as the date on or before which a book must have been scanned in order to be entitled to a Cash Payment.

Online claims-filing and detailed information about the Settlement are available at in 36 languages.

Friday, May 1, 2009

How to Ensure Ownership of a Copyright Authored by Another by Brian A. Hall

Two scenarios occur most often when the question arises as to how to be sure you own the copyright rather than the employee or independent contractor who authored/created the particular work. The first situation arises when, as an employer, your employee creates a particular work for you. The second situation arises when you contract with a third party to create the work for you and whatever use you intend for that work. Both of these situations implicate what is known as the work made for hire doctrine under the United States Copyright Act.

If the work was prepared by an employee of the employer within the scope of that employee's employment, then the work is considered a work made for hire, and all rights are retained by the employer. These rights include not only the right of ownership, but the employer is also considered the author of the copyright. It is important to recognize that several factors will be considered when determining whether or not an individual is indeed an employee, and these considerations are consistent with the common laws of agency.

The more difficult situation arises when an individual contracts with a third party to create a particular work. In this situation, there are different options available to ensure that you, as the individual contracting with the third party, have rights in the work. In order to qualify as a work made for hire under the statute, the work must be specially ordered or commissioned by you, the work must come within one of the nine enumerated categories of works set forth in the Copyright Act, and there must be a written agreement in advance that notes the work is indeed a work made for hire (with those words used).

It is important to recognize that having an independent contractor merely execute a work for hire agreement may not be sufficient unless each of these factors is satisfied. For example, if the work does not fit within one of the nine enumerated categories of works, a work for hire agreement is essentially without legal effect. Finally, there is a down side to a work for hire agreement. In particular, the duration of ownership with a work for hire is 95 years from publication rather than the usual duration of life of the author plus 70 years.

Therefore, as an alternative, a copyright assignment agreement may be favorable. Such an agreement would assign rights and title to the work to you. That said, the original author maintains designation as author, but you become the owner of all other rights if the agreement is properly drafted. While the drafting of a copyright assignment agreement is specific to the particular situation, it is important that all moral rights to the work, including the right of attribution and the right of integrity, are severed so as to prevent the author requiring you to include his or her name among every distribution of the work. Like any other kind of contract, the agreement must also set forth all other terms including, but not limited to, consideration, any representations and warranties, and the critical dates and signatures.

Finally, in order to avail yourself of all benefits of a copyright registration with the Library of Congress, namely the U.S. Copyright Office, it is beneficial to file the work under the appropriate designation. Since the author of the work must be noted within a filing, it will be important to understand whether there was a work for hire agreement or an assignment agreement created to show which rights have indeed been transferred to you.

Ultimately, whether or not a particular work is indeed a work for hire, whether the copyright assignment agreement or a typical work for hire agreement is preferred, and the best way to proceed with registration depend on the specific facts of each situation. Therefore, it is important to think about these issues and address them early in order to ensure that you have copyright protection and are in a strong position to deal with any potential copyright infringement in the future.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm focused on complex litigation, intellectual property matters, internet law and trademark registration and prosecution. Speak with a copyright attorney today and learn more about the importance of understanding the intricacies of infringement of copyright and other copyright issues.