Create, Consult, Control
News & commentary on intellectual property issues.
Aug222011 | Steve O'Donnell
Who doesn’t like free porn?
Who doesn’t like free porn? No one, that’s who. Who likes paying an absurd amount to settle a lawsuit alleging that they committed copyright infringement by downloading porn over BitTorrent? No one, that’s who.
Over the past year or so there have been a number of mass copyright infringements filed across the country against “John Does” for downloading movies. Over 200,000 “Does” have been targeted so far, and that number is almost certainly going to increase. I don’t have a breakdown of how many have been targeted in porn, versus non-porn cases, but based on the calls I get, the porn cases are the busiest now.
Although I’m not sure exactly how people are being targeted since no one has taken discovery yet, I have a guess pieced together from various sources: basically, someone jumps into a torrent and takes screen shots of the IP addresses of everyone in that torrent; the copyright owner takes a look at how many people are sharing their property and gets in contact with a lawyer to see what can be done. At least that’s one possible relationship, I’ve heard of some lawyers receiving offers to sell lists of timestamped IP addresses and some lawyers are actively soliciting clients for these cases. In any situation, the exact relationship might be different, but the basic idea is the same.
Of those 200,000 people, I’m sure some of them were targeted because someone jacked their wireless connection and used it to download. Many people don’t secure their connection, either out of some sense to community, because they just don’t know how, or just don’t want to go through the bother. Other people are using a WEP secured connection and don’t realize that WEP can be cracked in a couple minutes.
Since the best way of avoiding the expense and bother of getting caught up in one of these matters is to shut it down before it happens, there are a few things you can do to make sure unauthorized people aren’t using your connection to download movies, or even worse like what happened to this guy or this one.
First, change your wireless security to WPA2. WEP can be broken into in a few minutes if the person has the right equipment and motivation (we’ll assume they do).
Pick a good password. There are different suggestions about what makes good passwords, and to some extent the password strength needed depends on what you’re protecting. Generally, avoid single words, “password” and “1234” and you’ve probably done enough to keep someone from breaking into your wifi. Adding a number and a capital letter or two is even better. At that point, it’s probably easier for them to pick someone else than to bother trying to crack your password.
You can also hide your SSID so your neighbor won’t even see your network name when they are looking for a connection. Of course, it’s easy to find hidden networks, but it’s an extra step that many won’t bother taking.
Turn on MAC address filtering. This way, each new piece of hardware that connects has to be approved by you. This is a little more annoying in use, since you can’t just type in a password into a new device you want on your network, but it’s very secure.
Doing those things will keep out most unwanted guests, but what if the problem is inside your house? What if it’s your kid that discovered he can get “free” music/games/movies and doesn’t realize that you might be hit with a nasty and expensive lawsuit?
One thing you can do is uninstall any torrent programs on your computers and revoke administrative privileges so they can’t be installed again.
You can also install OpenDNS on your network, which will let you (mostly) shut off access to sites where the torrent files can be downloaded. OpenDNS won’t shut of torrent traffic though, so it’s still important to make sure that your computers don’t have a torrent downloading program. OpenDNS will also let you take a look at what network activity has been going on, so you could detect traffic that you didn’t authorize.
The trouble with the “the downloader is in my house” solutions is that there is always a way around if someone is motivated enough. The best way to keep your son or daughter from downloading and exposing you to liability is probably to talk to them and explain the potential problems.
I’m no computer security professional, so if anyone has other suggestions on how to prevent such unauthorized uses, I’d be happy to hear them.
Aug082011 | Steve O'Donnell
My ex-employee is using my customer list and materials!
What, if anything, can you do if an employee takes more than some pens when he leaves and starts calling your customers and using your advertising materials?
Ideally, you’ve thought this through and already have something in your employment contract that addresses these things.
What? You don’t have trade secret language in your contract? You don’t have any intellectual property language in your contract? You don’t have any contract? That’s really not that surprising, such things are usually not considered until a business gets burned. It’s like the saying goes: fool me once, shame on you; fool me twice, shame on me.
First, call your lawyer. If an ex-employee is using your client list, you have to move quickly. If it’s a trade secret (generally something of economic value that isn’t known by the public and that you’ve taken some actions to keep secret) you might be able to get an injunction.
If an ex-employee has taken your advertising materials and designs, and is using them for a competing business, you might have a couple options. It is possible that doing something like this is punishable as an unfair business practice, at least it sounds unfair. A clearer claim might be made for copyright infringement, but copyright is one of the more annoying areas of law to start kicking around in, especially if there isn’t clear ownership of the copyrights and a copyright registration in place. Chances are, if you’ve come across this post, you don’t have either.
What every employer should do if have an employment agreement in place when someone is hired that addresses these things before they happen. Ideally, contracts are also put in place between the employer and whoever designs their marketing materials, so that, if needed, a copyright claim can be more easily made against someone that misappropriates the advertising materials. Many of these issues are state-specific, so you should talk to someone licensed in whatever state you’re in.
This, like pretty much everything, is a “ounce of prevention v. pound of cure” issue. It might not be attractive to hire someone to draft these documents if your business’ greatest goal is making payroll next month, but taking care of these fairly simple things can help you continue to make payroll long after someone leaves.
Aug012011 | Steve O'Donnell
Can I get sued for this?
Rarely do I go longer than a few days without someone asking me if they can do something without getting sued. I’d bet every lawyer gets that question, or some version of it, a lot. The questions can rarely be definitely answered. If there was an easy answer, then the person asking probably knows the answer. For example the question “is it OK if I kill my spouse?” doesn’t really need to be asked. Unfortunately (for clients), or fortunately (for lawyers), the questions usually aren’t as easy.
For example, here are four questions I’ve been asked over the last couple weeks:
•Can I sell my drawings of famous articles/landmarks and not get sued? (maybe)
•Can I get in trouble for publishing my erotica that features popular TV/movie characters? (maybe)
•Can I be sued for reusing a picture I found on a website? (maybe)
•Can I get in trouble for counterfeiting arcade tokens (that one was answered with a long, uncomfortable stare)
First of all, you can be sued for just about anything. A neighbor could sue you for letting your grass get too long (if any of my neighbors are reading this: I swear I’ll cut it when the heat breaks). You could be sued if your toddler said something mean to another toddler at the park. Someone could sue you because they think you’re conspiring with Elvis, Oprah, President Obama, and a group of sewer-dwelling reptile-people to steal their thoughts. Granted, the chances of any of these cases being filed is narrow, and the chances of them getting anywhere in a court is even smaller, but they could happen. Asking whether you can be sued for something isn’t the right question to ask. Better questions are what is the chance of being sued, and what are likely damages. An even better question is “what can I do to reduce that chance or eliminate it?”
Often when I get these kinds of questions I’ll need to get more information before I can even suggest a plan. For example, to even start thinking about the question about selling drawings of famous articles/landmarks I needed to know what was being drawn. It’s one thing if you’re drawing a cityscape, it’s quite another if you’re drawing a Coke can or Batman. After that, what context is the famous article/landmark being used? Fan art of Batman is probably not going to rile DC’s feathers nearly as much as a drawing of Batman doing something extremely non-heroic and exceedingly out of character (let your mind wander for a moment, I’m sure you’ll think of something). Another big factor is the money involved. It’s one thing if you‘re planning on selling the art on a street corner or mall kiosk, it’s another if these drawings are being incorporated in a large, national publication that can generate thousands in revenue. Simply put, it’s not generally worth the expense to bring a lawsuit against someone if that suit can’t possibly pay off.
Depending on the exact facts behind a question, the likelihood of being dragged to court might be very low, or dangerously high.
No matter where that likelihood ends up, we can usually lower it a bit more. Ideally, we can get a license from any rights holder, but even without that, there are things that can be done, and precautions that can be taken that can reduce the chance of being taken to court.
Once you know the risk you‘re taking, which is something like: (chance of being sued * estimated legal fees and costs * estimated damages * chance of losing) you can decide if you want to change your course of action or if you want to go forward. Without knowing these things you’re going in blind.
May122011 | Steve O'Donnell
DC vs Batmobile custom car seller
Did you know you can buy kits to customize your car so that it looks like the Batmobile? Let that sink in for a second: you could own a car that looks like the Batmobile! This has to be the greatest thing ever! Why did no one tell me about this before?
One of the accounts I follow on Twitter, @justiacom, posted a link to a complaint filed by DC Comics against Mark Towle (D.B.A. Gotham Garage) alleging Mr. Towle of engaging in copyright infringement, trademark infringement, trademark counterfeiting, and unfair competition (both under the federal Lanham Act and under California common law).
Looking at the website http://www.gothamgarage.net, it’s hard to say that there isn’t some infringement going on. Rather, it’s pretty clear to me that there is infringement (although that’s ultimately up to a court to decide). There are defenses that can be brought up, there always are--whether they’ll be successful is far too early to say. A more interesting question for me, is why does DC Comics care?
DC owns the Batman copyrights and trademarks. In this case, although there may not be any real, direct damage to DC if they were to allow Batmobile replicas to be made, they are risking abandoning their intellectual property if they don’t do something.
For the sake of argument, lets say that the sale of Batmobile replicas themselves aren’t damaging because DC doesn’t offer for sale, or license someone else to sell such replicas, so DC decides to ignore Mr. Towle’s replica business. What happens then if someone else starts selling Batman costumes, t-shirts, toys, etc (all of which are officially licensed products)? If DC was to exert their intellectual property rights against someone infringing those rights in a market that directly competed with Batman’s licensees, that infringer has an argument that DC abandoned their rights by not exerting them earlier against Mr. Towle, meaning that they really don’t care about protecting their marks and so the marks are not protect-able. It might not be a winning argument, but there is no reason not to keep one step ahead.
Of course, even without the concern that their rights will be lessened by not going after infringers, it’s still entirely proper for them to exercise their rights to protect their intellectual property, even if doing so means that something that sounds totally bad ass, like a Batmobile replica, becomes unavailable.
So, if replica Batmobiles (even if faithful and reverent) could be an issue, why hasn’t DC’s lawyers taken aim at Vivid Video, the makers of Batman XXX (link goes to a safe trailer on YouTube.com)? One reason is probably that DC doesn’t want to risk an adverse finding that the X-rated version is a parody protected by the First Amendment. Parodies are those works that take another work and twist it so that the new work makes fun of the original. In Campbell V. Acuff-Rose Music, Inc. the Supreme Court found that 2 Live Crew’s version of Pretty Woman was a parody that was intended to ridicule the original. Parody in this context is just part of the Fair Use infringement analysis, which is far too complicated to go into in great depth here. I’m not convinced that all porn “parodies“ are parodies under the case law, but a company could reasonably decide not to sue based on a calculation of how much it might cost to drag a case through the initial court and the appeals process on an iffy legal point.
Anyway, I’m trying to get an adjunct professor position at Batmobile State University, so if any of my readers knows the Dean, I’d appreciate a recommendation.
Before anyone gets smart, the picture is a partial frame from All-Star Batman and Robin #1, which you should read. It’s used without permission. I have a good fair use argument and I can make that call, because I’m the goddamn lawyer.
Apr132011 | Steve O'Donnell
The Days of Turkey Roll
Last night, for a reason unknown to me, the thought of turkey roll invaded my mind.
If you’ve never had turkey roll, you should feel lucky. Turkey roll is essentially a giant hotdog, maybe 5 inches in diameter and a few feet long, made out of turkey. At least I think it’s turkey, I’m assuming the government somehow regulates what can be called turkey. However, I’m pretty sure that it’s not made out of the part of a turkey that people willingly eat. Rather, it’s probably little bits mechanically scraped off of bones, with a generous serving of eyeballs and genitals.
It seems that most people’s memories of turkey roll are limited to a couple sandwiches from high school or from a gas station (I don’t think it can be served to prisoners). My experience with this gastronomic disaster goes a little deeper.
My parents ran a small catering business on the side. When I tell that to most people, they’ll respond with something like “wow, that must have been a great learning experience for you” or “wow, you’re lucky, your mom must have been a great cook.” Sadly, neither was the case. First, the name of the business was “Ken and Barb’s Food Service.” Say that in your head a few times, now say it aloud. That should tell you everything you need to know about the business. Note: it’s not a “Catering Service,” it’s a “Food Service.”
The business was not geared towards serving delicate petits fours to powerful business leaders. The clientele were people that would base every decision about their wedding on price. Not that doing so is such a bad thing, most people have to watch the bottom line quite carefully, but my parents did seem to attract the extremely cheap. That was not helped at all by them deciding to compete solely on price.
To keep their costs down, there was no separate phone line for the business, every call to the house came to the same dark green rotary phone that was wired about 10 feet from the TV. A typical evening would consist of me having to listen to my mom discuss menu options with a bride-to-be while I was trying to watch Good Times (“there’s chicken, ham, or chicken and ham.” Seriously, those were the options. With enough planning, there could be roast beef, but that was harder to plate in a production line so my mom didn’t mention it unless asked).
Not to disparage my parents. They worked very hard to keep me fed and clothed and I thank them for that. I’m pretty sure that if I ever had to work a single week like my father did for most of his life, I would die. Still, that doesn’t mean I can’t make fun of their business.
Along with the chicken and turkey-ham, which was by far the most popular choice, there would be mashed potatoes, stuffing, gravy and some of whatever canned vegetable was cheapest that week--usually corn. Rolls and butter would be on the tables themselves. A half dozen rolls per table of eight, along with a full stick of butter. I never quite understood that. I’ve never been to a wedding, funeral, diner, potluck, church fundraiser, or gas station, that served less appetizing food than my mother would. Honestly, I think that is mostly a “familiarity breeding contempt” problem, since most people seemed to like what she served.
Of course, Mom would always plan for a few uninvited people showing up and make a few extra servings of everything. Sometimes there were extra people that showed up, but more commonly we had lots of food left over. Generally, you can assume attrition of at least 10% from those that RSVP yes to an event. So, if a wedding was supposed to be 200 people, my mom would usually aim for around 180. Sometimes, especially if the weather was bad (this was in Minnesota, so the weather was usually bad), the no-show amount would be closer to 25% or more. My mom would pass out the leftovers to her workers and then feed the rest to me and my dad. Our home refrigerator was usually full of number 10 cans (the big ones that chickpeas come in at Costco) filled with mashed potatoes, stuffing, gravy, and corn. There might also be 25-50 oven-fried chicken quarters. I guess it’s better than having no food, but I would often wistfully pine for some variety.
So far, this has nothing to do with turkey roll, I’m getting to that.
Sometimes people die. Often, the family of the deceased will feel compelled to feed mourners something. I never quite understood that. I’m hoping to have my funeral first thing in the morning so my family can get by with serving Froot Loops and PopTarts. If that doesn’t work, then I’d like it to be after 9:00 PM so we can serve nachos and beer.
Sometimes, though, the family of the recently deceased wants to treat all the mourners to a lunch, typically of the fare one would expect from a crappy picnic--i.e., cold sandwiches and chips. My mom would happily feed cold cuts to mourners. In the interest of keeping costs low, she would purchase big deli-type logs of processed meats and cheeses and run them though her slicer. I would often have the task of arranging slices of meat and cheese in a spiral pattern on large serving platters. Most often, her meats of choice would be whatever summer sausage was on sale and turkey-ham (shh, no one was to be told that it was turkey-ham and not actual ham--they’ll never know otherwise), but occasionally, when the stars aligned just right, and the turkey roll was on sale because it was nearing it’s expiration date, she would purchase a log of turkey roll.
The turkey roll logs (I don’t think logs is the right name for the unit of measurement, but it works) were 5 inches in diameter and 3 feet long. If you’ve never seen turkey roll, it has an appearance and texture, or lack of texture, similar to a hot dog, only instead of being dyed to resemble beef, it’s dyed to resemble turkey. Although it had an overall consistent grey-ish beige color, there would be veins or clumps of darker “meat” that has a slightly grainer texture. I was never sure if those were because of an actual difference in how white and dark meat wound up being pressed together, or if it was a ruse designed so that the chub would more closely simulate food. I guess it doesn’t matter. I preferred the darker, grainer regions.
Picture a giant hot dog being cut in to slices so that mourners can place some on a white bread roll with a slice of American cheese and you can appreciate that a 3 foot log will produce a lot of slices, more than a typical funeral can go through, especially when they also have delicious turkey-ham (again, quiet about the turkey-ham). Granted, the hundred or thousands that might show up for the funeral of a head of state or a popular entertainer could easily go though a turkey roll, perhaps several, but those people were not my parents’ target market. The turkey-ham, salami, and even the cheese could be frozen and used for the next funeral, but the turkey roll did not thaw well. She tried, God bless her, she tried, but on thawing it would collapse into a turkey scented, grey-ish beige goop.
Turkey roll then, was not only purchased when on sale, but also only when she had two or more funerals scheduled in a single week. It truly was an event.
Still though, that’s a lot of processed turkey to go through and there was always leftover turkey roll that couldn’t be frozen, so it would sit in the fridge next to the oven-fried chicken, mashed potatoes, stuffing, gravy, and corn. Now, having an abundance of an ingredient isn’t really a bad thing, if you’re creative. Sadly, as evidenced by the name “Ken and Barb’s Food Service,” creative was not a adjective generally used to describe my parents.
There were no turkey croquettes, no turkey tetrazzini, no General Tso’s turkey, no Kung Pow turkey, no turkey pad thai, no turkey chili, no turkey bolognese, no turkey casserole, no turkey pot pie, no turkey quiche, no curried turkey, no turkey paprikash, and no turkey hash. There were cold turkey roll sandwiches on white bread with mayonnaise, and there were hot turkey roll sandwiches served with mashed potatoes and covered in gravy. Since there was always rapidly aging mashed potatoes and gravy in the fridge, guess what we had most often? It’s very sad when you find yourself wishing for a cold sandwich with mayo.
That particular type of hot sandwich seems to be a midwest thing. As it’s normally served in diners across the plains, a meat sandwich is made with white bread (usually dry, but sometimes on buttered bread, if you wanted to get fancy), cut diagonally, and artfully arranged on a platter so that a large scoop of mashed potatoes could fit between the sandwich halves. Then, the whole thing is covered in gravy. The need for such food is evident if you’ve visited the upper mid-west, specifically, the Dakotas, Minnesota, Wisconsin, and maybe Iowa. In those states, there is always the chance of a crippling snow storm striking while you’re out and exposed to the elements. Really, it can be the middle of July and you’re in a park playing frisbee golf when, boom! Snow storm, -20F, 100 mile an hour winds and hail the size of hybrid cars. If that happens, hopefully you have a hearty and hot meal in your stomach or you might not even make it to your car to get out your emergency parka and snow shoes. I believe Paul Bunyan’s cook created the sandwich in the 1800s to save on the number of bears that would have to be cut open and crawled into to survive those sudden storms.
I didn’t realize that the sandwich wasn’t common outside of the midwest until I served one such roast beef sandwich to my Pennsylvanian wife. I’m sure she looked at it with eyes full of love, turned her head towards me and said something like “Steve, what do you call this?” However, I more clearly remember the subtext, which was closer to “what the fuck is this shit?”
I went to the store today and looked in the deli case for turkey roll. I didn’t see it, and didn’t have the nerve to ask for it, because if I had asked, and they had it, I would have been compelled to buy some, and even though I’m sure it would transport me back to my childhood, I never really liked turkey roll so I’d rather just watch Scooby Doo or something.
Maybe it’s one of those foods than lived through it’s glory days and is now just isn’t widely available. You just can’t find liver or tripe as easily as you could years ago. Braunschweiger is another such food that I haven’t seen in years, although I admit, I haven’t looked for that. My mother also would serve something she called “liver paste” which was a thoroughly unpleasant spread (I can’t quite call it a pâté) she’d make with braunschweiger, mayonnaise, onion, and Worcestershire sauce; but that’s a story for another day.
Or maybe turkey roll was banned by the international community. I prefer to think that’s the case.
*****
So, how does that short story fit into my blog which usually discusses matters of intellectual property? I’m not quite sure. I wanted to write that and didn’t want to start another blog just for that, since I might lose interest in the theme, leaving a blog with one post floating out there.
I think I can fit it in conceptually however. It is a creative work, so it is automatically covered by copyright. If someone scrapes my blog and posts it, I think I can probably find out pretty easily by setting up a Google alert for “turkey roll,” since, thankfully, it’s not a popular search term.
If I do not register the copyright in a timely manner, and someone scrapes this story, I could sue them and recover actual damages/profits and get an injunction against them. For this short, short story, I doubt damages would be worth the filing fee in federal court.
If on the other hand, I do promptly register my copyright in this story, and someone scrapes it to fill up their own blog I could recover statutory damages, which are much more attractive to a plaintiff ($750-$30k, maybe even as high as $150k if the infringement is willful).
So, just to be clear, as of the time I wrote the above it was copyrighted. I have also registered it with the copyright office to put myself in a better position if someone scrapes it or otherwise infringes my work. A question I have is whether the automated nature of blog scrappers argues against a finding of willful infringement. If it comes up, I’ll have to look into that further.
Jan112011 | Steve O'Donnell
When a parody isn’t a parody
I’m willing to bet that at some point you watched something labelled a parody video on YouTube. In the past week I’ve run across three that people have either sent me our pointed out on twitter. Of those, one was a song played on top of clips from the original Star Trek series, one was a mashup of an 80's metal song and a 60's pop song, and the last was a pop song done with different lyrics to poke fun at one of the many reality show disasters. Each was labelled as being a “parody,” probably as an attempt to cut off a copyright issue before it became a problem. Each was very clever and well done, but are they protected parodies?
Parody is protected fair use of a copyrighted work, but it doesn’t mean that all comical uses of a copyrighted work are protected. For a work to be a fair use parody of a copyrighted work, it has to actually parody the copyrighted work. [sounds like a lawyer wrote that last line.]
It would probably be helpful if I linked to the videos that inspired this post, but I don’t want to step on anyone’s legal defense (if it came to that).
First, lets touch on fair use. In determining whether a use of a copyrighted work is a “fair use,” courts will look to a few factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
If you ever read a case with that list in it, you’ll notice that something like “although each prong is not determinative…” is nearby. In other words, a court will look at all the factors in deciding if a use if a fair one. That can be a hard thing to explain since most people thing that just because some use is noncommercial that it’s automatically a fair use, which isn’t the case.
Second, lets briefly go over the differences between parody and satire, at least in this context. Parody pokes fun at a work and needs to use part of that work in order to do so. Satire pokes fun at society, usually for social change. Either parody or satire can be protected fair use, although the fair use is generally much easier to find in parodies (look again through the four factors).
Turning then to the three YouTube videos I mentioned:
A song played over Star Trek clips. What is being made fun of? The song isn’t changed, so the song isn’t being parodied. The show might be parodied since it’s taking a serious sci-fi show and making it into a video for the song with some creative editing. Use of the song is not parody, even though it’s used as part of a parody of something else. Use of the clips, though, might be protected.
A mash up of two songs. That might be parody. I’d argue that the use of each work is poking fun at the original, in this case, by pointing out the structural similarities and interchangeability of certain elements between two otherwise disparate works.
New lyrics to a pop song making fun of a person. Since the song itself isn’t really the target of the new work, it’s probably not a parody of the song.
Of course, like just about everything in copyright law, each case is different and fair use is not an easy doctrine to pin down. It’s always in your interest to get an attorney’s opinion about your plan, especially if your parodies are for-profit. Although “not determinative” (there’s that term again), for-profit uses tend to get a closer look from copyright owners.
So, if at least some of these YouTube videos are not really fair use, why are they still there? Shouldn’t YouTube take them down? Why aren’t the copyright holders suing?
A couple reasons that probably explain that. For one, fair use is not a clear cut test, I wouldn’t be shocked to find a judge that came to different conclusions than I did. Also, in some cases, the copyright holder probably likes the additional expose they get through a popular YouTube video.
For a quick, fun read, take a look at Campbell v Acuff-Rose Music to see what the Supreme Court said about 2 Live Crew’s version of Pretty Woman.
Jan042011 | Steve O'Donnell
Safely choosing images for your website
Over the past year I’ve had a few clients come to me with nasty letters from image licensing sites demanding $1000+ for copyright infringement. In these cases, a few simple tips could have prevented them from having any trouble.
1) Don’t just grab images you like from other blogs/websites. You don’t know where those images came from: they may be licensed, they may be original works. If you really, really want to use the image, email the site for permission or information on licensing.
2) If it looks professionally done, it probably is. Many people make money from works they post online and don’t like it if you just take them.
3) Be careful. It’s one thing to download examples from a stock photo site to use to create a mock-up page, it’s another to make that page live without being sure that you have a license to use those images.
4) Don’t assume you have “fair use” rights. Fair use is a very fact intensive defense to copyright infringement. You may think you can do something because of fair use, but, you’re probably wrong. Sorry, I didn’t write the law. Even if you do have a bullet-proof fair use defense. . . it’s a defense, it doesn’t prevent you from being sued or from getting a DMCA takedown notice. It’s something you argue in court, after paying your legal team some hefty fees
5) Wide use doesn’t mean it’s public domain. Sometimes wide use means that the image is just really popular, and brings in license fees.
So, how does one find images that they can use without running into problems?
1) License them. Look for images from Getty Images or iStockphoto or any of a number of other image licensing sites, pay their fees, and comply with their licenses.
2) Creative Commons. Search for images and read/comply with the license. These aren’t totally free, they might not cost money, but they might limit what you’re allowed to do or require a link back or attribution. When I’ve used CC images I’ve sent a copy of the page using the image to the creator and thanked them for their image. I’ve always received a nice thank you from the creator.
3) Use free images. Lots of site republish free images. Pull out your google-fu and search for “public domain,” “free graphics,” or whatever search terms suit your fancy.
One annoying point: even if you use a “free image” or a Creatively Commons licensed image. . . or even a purchased image, you can never be totally sure that the image is clear. There is nothing to stop someone from downloading an graphic and reposting it under a Creative Commons license or otherwise granting a dubious license. If you really, really, positively need an image you are stuck with either creating it yourself or commissioning the work (with the appropriate transfer(s) in place). Otherwise you’re depending on others being truthful and granting rights they have the ability to grant. Of course, I’ve never heard of a case where someone has offered a graphic for license that they don’t have the rights to, but that doesn’t mean that it couldn’t happen. The best course of action is to keep a paper trail for all images you use so that if you receive a nasty letter you can point to your records to explain why you’re not a proper defendant.
If you receive a threatening letter concerning an image you’ve used, you should contact an attorney that is familiar with copyright law to discuss your issue.
That picture. . . well, I had some credits with iStockphoto that were about to expire so I searched for “patent” and after looking at a bunch of lightbulbs found a pair of patent leather boots. It seemed almost relevant.
Nov102010 | Steve O'Donnell
Are my tweets copyrighted?
Twitter updates are probably not copyrightable. . . but could be.
Nov042010 | Steve O'Donnell
Your videos, YouTube, and Web clip shows
In it’s never ending quest to find content that is cheap to produce, some networks have been finding some of the strangest and funniest clips on YouTube, Break.com, and similar websites and building shows such as Web Soup (G4) and Tosh 2.0 (Comedy Central) around them. Do the creators of the clips have an action for copyright infringement?
This is one of those questions that doesn’t have a great, easy answer. There are a few prongs that need to be considered before suggesting a course of action.
The first thing to do is look at the agreement that YouTube (or another upload place) requires users to accept.
YouTube’s terms, at Paragraph 6-C gives them the right to sublicense any videos to anyone they want. So if YouTube has licensed a particular video to Web Soup, then the creator of the video might not be able to do anything about the broadcast.
If, for some reason, that isn’t a problem (maybe the infringer hasn’t licensed the video from YouTube, or maybe the video was posted as an imbedded .avi or QT video on an independent web site), then the creator would have to determine what damages would be available. That will mostly depend on whether or not the work was registered so that statutory damages would be available. Most people that aren’t producing commercial video (and even a lot that are) simply don’t register their copyrights. If that’s the case, all one could win in court would be actual damages and profits, and an injunction. For most works it might not be worth pursuing an action beyond an angry letter or two. . . speaking strictly about the financial possibilities. If it was registered so that statutory damages are available, which could run as high as $150,000 plus legal fees, then the case is much more attractive financially.
Then, we have to look at what defenses the other side has and estimate how good they are. The most likely defenses are some flavor of “fair use,” but laches (basically that the creator sat on his rights too long to bring an action), and even an implied license might be argued. The implied license is one I’d really like to see argued from a copyright nerd perspective. Basically, the argument would be that by putting something on the internet that the creator has impliedly licensed the video to the public to use as they wish. I don’t think it would work, but I’d like to read the briefs (or have the time to research them myself).
If you have a video that you really don’t want to see mocked on Tosh 2.0, the easiest thing to do is to not upload it. If you really have to share it online, make sure you read and understand whatever terms of use you’re agreeing to by posting it. In either instance, register the copyright as soon as you can to give yourself some leverage if you do have to go after someone for nicking it. Depending on the exact facts, there might be other ways of protecting your work. The best thing to do is probably meeting with a copyright attorney to plan things so that the risk of infringement is minimized.
Oct272010 | Steve O'Donnell
Can typefaces be copyrighted?
In short: No. In long: Noooo.
37 C.F.R. 202.1(e) states that a “typeface as typeface” is not material that is subject to copyright.
It would have been nice if Congress could have used slightly less circular language than “typeface as typeface,” but in their wisdom didn’t think that was needed.
What that means, and how it’s been interpreted by the courts is that a “typeface is an industrial design in which the design cannot exist independently and separately as a work of art.” In other words, if the artistic expression in a typeface design can’t be separated form the utilitarian use of the typeface, then copyright is not applicable.
This doesn’t necessarily mean typefaces are completely foreclosed from protection. Design patents can be used to protect the design of a font such as in patents USD289422, USD340738, or USD266006. Also, a design that incorporates a non-copyrightable font, may still be copyrighted. Further, if some computer code is used to dynamically scale or manipulate a font, that underlying code can be copyrightable.
Copyright law is a morass and navigating it really requires someone familiar with its particularities. Call or E-mail me to get together and go through any specific questions you have.
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