Basics on Copyrighting your Photographs by Diana Cooper

This article is intended on providing only the basics about copyrighting your photographs within the United States (at this time of writing, 12-11-07). No legal advice is applied. For more detailed information you can visit www.copyright.gov.

--As of March 1, 1989, copyright has been made automatic. The need to register with the Copyright Office is no longer required to provide protection. Once you create a picture, you own the copyright. A copyright notice (for example, a copyright symbol or watermark) is also no longer required to protect your photographs (excluding older works); however, many photographers continue to use to identify themselves and the date of creation.

--As a general rule, for works created on or after January 1, 1978 the copyright is legally yours throughout your life plus 70 years beyond that unless you decide to pass your rights on to another.

--Before an infringement suit may be filed in court, registration is necessary. Registered works (if registration occurs within 5 years of publication) serve as prima facie evidence (proof) of a valid copyright. Registered works may also be eligible for statutory damages and attorney's fees in successful litigation.

--If someone was to steal your photographs, they can be liable for statutory damages up to $30,000 ($150,000 if willful infringement is proven by the copyright owner) for each work infringed on and may also be liable for attorney's fees incurred by the copyright owner.

--Copyright covers both published and unpublished works.

--To register photographs you will use the Visual Arts form which you can find at http://www.copyright.gov/.

--The current fee is $45 per application. You may register a collection of photos on one application under one title.

--Registration takes effect the day all the required elements in acceptable form are received; however, it takes approximately 4 months to receive your certificate. I suggest sending your application requiring confirmation of delivery since you will not receive acknowledgment from the Copyright Office.

--You will be notified by the Copyright Office via a letter or a telephone call if further information is needed to complete your application.

--If your application is rejected, you will receive a letter explaining why.

--Works created on or after January 1, 1978, are not required to be renewed.

--Online registration is expected in the future.

--Unfortunately a copyright is not protected throughout the world. Not all, but most countries do honor each other's citizens' copyrights. You can find more information regarding this matter at www.copyright.gov/circs/circ38a.pdf.

I hope you find this information helpful but be sure to visit www.copyright.gov before deciding whether or not you should register your photographs.

Diana Cooper specializes in nature and wildlife photography. http://www.dianasphotography.com/ and http://www.cafepress.com/dianasphotos

Leader Technologies Sues Facebook for Copyright Infringement

Leader Technologies Incorporated of Columbus, Ohio, has filed a patent infringement lawsuit against Facebook, Inc. of Palo Alto, California.

The complaint was filed in the United States District Court for the District of Delaware and alleges that Facebook infringes Leader's U.S. Patent No. 7,139,761 issued by the United States Patent and Trademark Office on November 21, 2006. The '761 Patent generally relates to a method and system for the management and storage of electronic information. Leader seeks damages and an injunction against Facebook for its willful infringement of the '761 Patent.

Leader was founded by Michael McKibben in 1997 and is a pioneer in web-based collaboration platforms. Leader has filed several patent applications, dating back to 2002, that cover its technology. "We have spent a great amount of time and effort in procuring our intellectual property," says Michael McKibben, founder of Leader and named inventor on the '761 Patent, "and have taken the steps necessary to protect our proprietary and inventive ideas."

Leader is represented by the law firms King & Spalding LLP and Potter Anderson & Corroon LLP.

Where is the Border Between Free Information and Copyright?

This article is intended on providing only the basics about copyrighting your photographs within the United States. No legal advice is applied. For more detailed information you can visit www.copyright.gov.

--As of March 1, 1989, copyright has been made automatic. The need to register with the Copyright Office is no longer required to provide protection. Once you create a picture, you own the copyright. A copyright notice (for example, a copyright symbol or watermark) is also no longer required to protect your photographs (excluding older works); however, many photographers continue to use to identify themselves and the date of creation.

--As a general rule, for works created on or after January 1, 1978 the copyright is legally yours throughout your life plus 70 years beyond that unless you decide to pass your rights on to another.

--Before an infringement suit may be filed in court, registration is necessary. Registered works (if registration occurs within 5 years of publication) serve as prima facie evidence (proof) of a valid copyright. Registered works may also be eligible for statutory damages and attorney's fees in successful litigation.

--If someone was to steal your photographs, they can be liable for statutory damages up to $30,000 ($150,000 if willful infringement is proven by the copyright owner) for each work infringed on and may also be liable for attorney's fees incurred by the copyright owner.

--Copyright covers both published and unpublished works.

--To register photographs you will use the Visual Arts form which you can find at www.copyright.gov.

--The current fee is $45 per application. You may register a collection of photos on one application under one title.

--Registration takes effect the day all the required elements in acceptable form are received; however, it takes approximately 4 months to receive your certificate. I suggest sending your application requiring confirmation of delivery since you will not receive acknowledgment from the Copyright Office.

--You will be notified by the Copyright Office via a letter or a telephone call if further information is needed to complete your application.

--If your application is rejected, you will receive a letter explaining why.

--Works created on or after January 1, 1978, are not required to be renewed.

--Online registration is expected in the future.

--Unfortunately a copyright is not protected throughout the world. Not all, but most countries do honor each other's citizens' copyrights. You can find more information regarding this matter at www.copyright.gov/circs/circ38a.pdf.

I hope you find this information helpful but be sure to visit www.copyright.gov before deciding whether or not you should register your photographs.

About the Author:

Diana Cooper specializes in nature and wildlife photography. http://www.dianasphotography.com and http://www.cafepress.com/dianasphotos

Where is the Border Between Free Information and Copyright?

With the explosion of the global internet and millions of websites begging for content information, there arises the question of just where is the border between free information and copyright? Research today is a snap, or rather, a query set into a browser followed by "enter", and tens or hundreds of thousands, even millions of related information websites appear. Just click and presto, you have information on your screen. But, is it free or is it copyrighted?

For most cases, information on a website is copyrighted. You can scroll down to the footer of most websites and find a copyright notice, or there may be a more visible warning posted. Some even have small banners for protection services like CopyScape on their website pages. Owners can check with this type of service and instantly see if any information contained on their website is appearing elsewhere, and from there they can pursue the copyright issue with offending websites.

There are services available that provide original written material for website content. Care is taken at those sites to check for any text infringements before content is released. This makes sense, because information production involves, time, talent, money, and ideas. It would be very wrong to just steal someone else's work, same as stealing physical property. There are principles involved, unless a person is totally unscrupulous and wants to run the risk of lawsuits and possible fines and/or jail time.

Let's look at definitions to determine where is the border between free information and copyright. Information is of three types: free, open, and copyrighted. Free information is available to be freely used, changed, altered, derived from, and there is no penalty for using it. Open information is available to be used, and free, but it cannot be altered or changed. Copyrighted information is not free and available to use except with specific authorization for use by a licensed or permitted person or business. Authors can post a notice that a copyright work of their own may be reproduced or copied.

Holders of copyrights have monopoly control over their works. Information that is in the public domain is considered free to use however a user wants. If a work has been copyrighted and that term of copyright expires, putting it into the free public domain category, it still can become copyrighted again if the laws change. This would affect all derivitive works from it also.

A copyright is a legal term, marked on works with the copyright symbol, a "c" within a small circle. It can be for a period of time and is important to protect monetary rights of the copyright holder on that work. Usually this refers to creative or written works, but can be to other ideas. It is a term for Constitutional protection in the US for original works published or unpublished, and is honored by many other countries, but not all. Besides the written word, it protects music, songs, computer software and architecture. Before using content, be sure it is free, not copyrighted. Additional copyright information is available online at the US Copyright Office.

For more information on copyright, visit http://www.copyrightmicroblog.com/

Worthiness Of Copyright Law In Today's Electronic "iWorld"

On October 29th the B.C. Legal Institute challenged two teams to debate the worthiness of copyright law in today's electronic "iWorld". Moderated by Rick Cluff of CBC's Early Edition, the teams' light-hearted arguments focused mainly on the exchange of digital information.

Karen MacDonald, of Smart and Biggar and Professor Joost Blom, from the University of British Columbia, held that copyright law will remain an important issue because artists will continually need to be protected and compensated for their creative works.

While their arguments were strong, they narrowly lost to the team of Tony Wilson of Boughton Law Corporation and Professor Robert Howell, from the University of Victoria, who held that with current laws, publishers win while creators and artists lose, and unsuspecting parents are being turned into "pirates" on the internet as they post pictures of their children dancing to music they haven't licensed.

Teenagers, they argued, are most affected and forced into "piracy" as they experiment with on-line video and music rather than being encouraged to push the envelope of today's cultural mediums.

The first ever Great Debate trophy was presented to Mr. Wilson and Professor Howell. Afterwards Mr. Wilson commented that, "Of course copyright still has its place, I am, after all, a copyright lawyer, but it was fun to examine a world without it. Reviewing old ideas with new perspectives and open minds allows for progression in any world."

Don't be Fooled by the Lack of a Copyright Notice

We are all familiar with copyright notices. They appear on web sites, compact discs, books, virtually everything that is protected by copyright laws.

They usually contain the letter "c" inside of a circle with wording such as "All Rights Reserved" following. Even though most everyone is familiar with these notices, there is a great deal of confusion about the purpose of a copyright notice and what the failure to include such a notice may mean to the author of a work. Much of this confusion arises from a relatively recent change in United States Copyright Law.

Under past United States Copyright Law, it was necessary to place the copyright notice on every item containing a protected work. Failure to include a copyright notice on a substantial number of published items could lead to loss of copyright protection. In effect, the work would lapse into the public domain because the failure to include a copyright notice was deemed to be a waiver of copyright protection. About 15 years ago, the United States amended the copyright laws to come into conformance with the Berne Convention on International Copyrights and the laws of many foreign countries. The end result is that failure to include a copyright notice on a published work does not any longer lead to loss of copyright protection.

Even with this change of law, there are still very good reasons to include a copyright notice when you publish a work of original authorship. including the notice asserts to the world that the work is yours and that you intend to enforce your rights. It also helps guard against a defense of innocent infringement or an arguement that the infringement was not intentional. Under the copyright laws, intentional infringement results in much higher statutory penalties.

The end result of this change in law is that it is no longer safe to assume that a work that does not include a copyright notice is not protected under the copyright laws. The copyright laws protect all original works of authorship regardless of whether they contain copyright notices or have been registered with the copyright office. There can be differences in the level of damages available if a notice is not included or a registration has not been affected. Still, misappropriation of a work of original work of authorship is still considered copyright infringements and damages would be recoverable against hte misappropriating party.

Given this fact, it is wise to assume that everything you run across on the Internet is copyright protected. You should refrain from publishing or using these items unless you obtain a license from the author. If you cannot find out who the author is so not assume that they are not out there and will not come after you if you use their material. The inconvenience and potential legal liability are too substantial and could have huge adverse impacts on your business.

About the Author:

Jon Fischer is the owner of the following Legal and Business Sites. Offering legal document packages for online businesses, IT companies, corporate, real estate and estate planning packages.

Visit the following sites:

http://www.e-lawresources.com/
http://www.automated-incorporating.com/
- Incorporation and Bylaws
http://www.technologyforms.com/

Derek Andrew V. Poof Apparel: No Statutory Damages for Copyright Infringement That Began Pre-registration

Derek Andrew Inc. ("Andrew") and Poof Apparel Corp. ("Poof") are both apparel companies. Andrew's "Twisted Heart" clothing line is sold in high-end department stores; it is identified by a hang tag featuring a trademarked logo that was first developed and used in 2003. Andrew registered the tag with the U.S. Copyright Office on Jun 15, 2005. Poof, which sells clothing to lower-end retail stores, sold some clothing with a hang tag nearly identical to Andrew's tag, except with the word "Poof" in place of the words "Twisted Heart."

Andrew first discovered the infringement on May 9, 2005 and sent Poof a cease and desist letter on May 2005. Poof twice indicated that it would comply with Andrew's demands, but failed to remove the garments with the infringing hang-tag from stores. Andrew filed a lawsuit against Poof for copyright and trademark infringement and Poof defaulted. The court denied Poof's motion to open the default due to Poof's failure to show "good cause."

At the bench trial on damages, the district court determined that, as to the claims brought under the Lanham Act and state laws, disgorgement was the proper remedy and it awarded Andrew $685,307.70, representing Poof's profits from the garments bearing the infringing hang-tag. The court also permanently enjoined Poof from infringing on Andrew's hang-tags. As to the copyright claims, the court awarded Andrew statutory damages, pursuant to 15 U.S.C. sections 504 (a) and (c), of $15,000. Further, based on its determination that this was an "exceptional case," the court awarded Andrew $296,090.50 in attorneys' fees and $6,678.60 in costs. Poof appealed only the statutory damages award and the attorneys' fees award.


Statutory Damages in the Copyright Act and the Limitations of Section 412(2).

A copyright owner can take action to protect his copyright whether or not he has registered that copyright with the U.S. Copyright office. The government wants people to register their copyrights, however. In order to encourage registration, Congress provided registered copyright owners with an added benefit. Section 504 of the U.S. Copyright Act gives registered copyright owners a damages option when they sue for infringement -- they can sue for actual damages or opt for "statutory damages" instead. (Unregistered copyright owners can only sue for actual damages). Statutory damages can range $200 to $150,000, depending on various factors, particularly whether the infringement was willful or unintentional. 17 U.S.C. section 504(c). Because actual damages are so often difficult to prove in copyright infringement cases, registered copyright owners often opt for statutory damages instead.

But the statutory damages option is limited by Section 412(2), which bars recovery of statutory damages for "any infringement of copyright commenced after first publication of the work and before the effective date of registration, unless such registration is made within three months after first publication of the work." 17 U.S.C. section 412(2). The purpose of this provision, of course, is to encourage prompt copyright registration. Court have determined that this section also encourages potential infringers to check the Copyright Office's database before taking action. See, e.g. Johnson v. Jones, 149 F.3d 494, 505 (6th Cir. 1998).


Andrew v. Poof Apparel -- Applying 412(2) to a Case of Ongoing Infringement

In Andrew v. Poof Apparel, the Ninth Circuit addressed a question that had already been addressed by several other circuit courts: How does the court define "commenced" under Section 412(2)? Put another way, does section 412 bar "an award of statutory damages for post-registration infringements when the initial act of infringement occurred prior to the effective copyright registration date"? Andrew v. Poor Apparel, 528 F.3d 696, 700 (9th Cir. 2008)

In the Andrew case, Poof Apparel used the infringing hang-tags both before and after Andrew's registration of the copyright. The District Court had apparently determined that the post-registration hang-tags uses "were separate and distinct infringments from the pre-registration infringment." Id. at 699.

The Ninth Circuit followed the lead of other federal courts[1] and reversed the District Court's finding. The court quoted the following excerpt from Singh v. Famous Overseas Inc., 680 F. Supp. 533, 535 (E.D.N.Y. 1988):

Each separate act of infringement is, of course, an "infringment" within the meaning of the statute, and in a literal sense perhaps such an act might be said to have "commenced" (and ended) on the day of its perpetration [,]... it would be peculiar if not inaccurate to use the word "commenced" to describe a single act. That verb generally presupposes as
a subject some kind of activity that begins at one time and continues or reoccurs thereafter. [2]

The Andrew court determined that the District Court's interpretation would "defeat the dual incentives of section 412" -- namely, to encourage prompt copyright registration and to encourage potential infringers to check the database before acting. 528 F.3d at 700. Accordingly, the court held that "THE FIRST ACT OF INFRINGEMENT in a series of ongoing infringements of the same kind marks the commencement of one continuing infringement under section 412." Id. at 701 (emphasis in original).

The court determined that Poof's pre-registration and post-registration hang-tags were essentially identical, other than being hung on different garments. Because Poof began the infringing activity before the date of registration, which was nearly two years after Andrew's first use, and continued it thereafter, the exception of 412(2) applied and Andrew was not entitled to statutory damages. The court reversed the $15,000 statutory damages award.


The Finding of Willful Infringement Upon Default not Inappropriate

Poof Apparel disputed the award of attorneys' fees on two grounds: (1) Andrew's inability to get statutory damages under the Copyright Act similarly prevented an award of attorneys' fees; and (2) the attorneys' fees award was not appropriate under the Lanham Act.

The court first addressed the propriety of the award, outlining that the Lanham Act does allow for an award of attorneys' fees and costs in "exceptional" cases of trademark infringement, which courts have construed as "malicious, fraudulent, deliberate or willful." 528 F.3d at 702 (citing Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1023( 9th Cir. 2002)). In this case, the complaint expressly alleged willful infringement; the entry of default judgement against Poof Apparel constitutes a determination that those allegations are true. Id. The court's determination of willful infringement was sufficient to support an award of attorneys' fees under this provision of the Lanham Act.

However, the Ninth Circuit did agree with Poof Apparel as to the Copyright Act claim. Because Andrews did not promptly register its copyright so as to qualify for statutory damages, it similarly could not qualify for an award of attorneys' fees under that cause of action. Id.

Because the District Court had not stated which portion of the attorneys' fees award would be attributable to the Lanham Act violation versus the Copyright Act violation, the Circuit Court remanded the issue to the District Court to recalculate the fees award to delete any amounts attributable to the Copyright Act claims.


The Lesson -- Prompt Copyright Registration Helps Complete Brand Protection

The growing line of decisions like Andrew should alert brand owners to the critical need to register all copyrights promptly. Prompt registration puts potential infringers on notice of the owner's rights and claims. More importantly, as Derek Andrew learned, comprehensive brand protection requires both trademark and copyright registration to ensure that the maximum remedies are available to combat infringement.



ENDNOTES

[1] Bouchat v. Bon-Ton Dept. Stores Inc., 506 F.3d 315, 330 (4th Cir. 2007); Troll Co. v. Uneeda Doll Co., 483 F.3d 150, 158 (2nd Cir. 2007); Mason v. Montgomery Data Inc., 741 F. Supp. 1282, 1286 (S.D. Tex. 1990).

[2] The court also referenced the following cases in support of this same proposition: Parfums Givenchy Inc. v. C&C Beauty Sales Inc., 832 F. Supp. 1378, 1394 (C.D. Cal. 1993); Mason v. Montgomery Data Inc., 741 F. Supp. 1282, 1286 (S.D. Tex. 1990).


About the Author:

Ms. Campos is an Associate at http://www.zuberlaw.com/Zuber & Taillieu LLP, where she specializes in entertainment and intellectual property law. She earned a J.D. from Stanford University School of Law, and B.A.'s in History and Ethinicity Race & Migration from Yale University. She graduated both universities with honors.

Law of the Student Press Addresses 21st Century Media Issues

In preparation for its 35-year anniversary celebration, the Student Press Law Center has released the third edition of Law of the Student Press, providing an important resource book for student journalists.

The Law of the Student Press was first published in 1984 and last updated in 1994, making this the first substantive update in 14 years. The book, which addresses legal issues regarding all forms of media, is authored by the legal staff of the Student Press Law Center and a nationwide team of media law experts.

"Obviously, a lot has transpired over the past 14 years regarding student journalists' rights," said Frank LoMonte, an attorney who is the Executive Director of the Student Press Law Center.

"New court rulings, new statutes, and the emergence of new media have all drastically changed the legal landscape - unfortunately, sometimes not for the better. Law of the Student Press explains what these changes mean and how they impact high school and college journalists, their advisers, and those who have an interest in student journalism. The book can be used for classroom teaching, but it is also meant to be used as a practical reference guide for journalists who need quick answers to legal questions," LoMonte said.

The Student Press Law Center, a nonprofit organization that will mark its 35th anniversary next year, is the authoritative source on student press law. The center is based in the Washington, D.C., area and assists thousands of student journalists nationwide each year through its attorney hotline and its website, www.splc.org.

At 416 pages and 20 chapters, Law of the Student Press addresses issues such as:

Online publishing of off-campus speech, such as comments made on personal websites (MySpace, Facebook, etc.), that is sparking a new generation of free speech litigation.

The latest on how the Supreme Court's Morse v. Frederick case ("Bong Hits 4 Jesus") is impacting student First Amendment rights, and practical tips on responding to a censorship threat.

A step-by-step description of the new copyright electronic filing system, and a detailed discussion about when the use of someone else's online content can safely qualify as a "fair use."

In addition, Law of the Student Press updates traditional media issues such as libel, defamation, invasion of privacy and obscenity. It specifically addresses the different legal standards that may apply between college and high-school media, as well as between public and private schools.

As a benefit to official members of the Student Press Law Center, work is underway to post a Wiki-version of Law of the Student Press in a secured section on the center's Web site, which will be updated as new laws are enacted and court rulings are issued. Members will be given a password to access the site.

Information on ordering Law of the Student Press can be found at http://www.splc.org/losp3.

Copyright Procedures; Quick and Easy by Lyle Cochran

The digital age of cyber publishing and intellectual property raises many questions about copyrighting. If you have never published anything in your life, you still hold copyrights. If you do publish your work, how do you know your copyrights are in place? Copyrighting is not complicated or difficult, there is a quick and easy way to copyright any creative material you produce.

Copyright law in the United States is extremely generous toward the creators and owners of new works. Legal copyright protection is in effect immediately and automatically upon the creation of any "original work of authorship" that is "fixed in any tangible medium of expression."

In other words, a copyright notice is not necessary for your work to comply with U.S. Copyright law. For example, when authors, webmasters, amateur writers or anyone else submit creative material of any kind for publishing, that creative material is automatically copyrighted. No copyright notice is necessary to be legally binding.

The laws are so generous in fact that the notes or scribbles you mindlessly make while speaking on the phone are considered copyrighted material, even if you wad it up and toss it in the trash at the end of the call. This does not mean that copyrighting should be taken lightly. There are significant legal advantages to using a copyright notice.

Copyrights can also be given away in part or in whole and must be agreed to in writing. The details of this are way beyond the scope of this writing. All authors and publishers have taken part in copyright agreements knowingly or unknowingly.

Quick and Easy Copyrighting:
The conventional copyright notice consists of 3 elements. The the word "copyright" or the copyright symbol, the year, and the name of the copyright owner.

Copyright © 2006 [Your Name or Company]

To comply with current copyright law and to copyright any computer generated creative materials follow this formula. First, add the copyright notice as described above to the end of the document. When you have finished editing, save your document as a file.

Finally, print the complete document with the title or file name and the current date. Set these to be printed in your printer settings or use the header and footer options of your text editor. Optionally you can simply type the title and date along with your copyright notice manually.

For example:
Copyright © 2006 Lyle Cochran
Copyright Procedures, Quick and Easy, July, 19, 2006

The printed hard copy becomes your Master Document. This document should be protected at all cost as it is proof that you are the author of the created material.

Other medium:
If your creative material is on some fixed and tangible medium other than computer, your hand written signature and date is usually enough copyright protection until you can apply for copyright.

Summary:
I know that the procedure outlined here sounds too easy, but it is the procedure recommended by the U. S. Copyright Office. This short procedure is valid and will stand on its own in litigation. Remember that the original date is key and a hard copy adds considerable weight to ownership.

If you wish to make your copyright bullet proof, you can begin copyright procedures online at the United States Copyright Office. ( http://www.copyright.gov/ )

Quotes Resource: http://www.copyright.gov/

About the Author:

Lyle Cochran is a PC technician with over 10 years experience and webmaster of Cheap Computer Solutions, where you can learn the secret to finding cheap computer hardware parts and retailers online. The number one site for cheap computer how-to shopping guides. Download your free Cheap Computer Parts Organizer now.