REGISTER NOW! bit.ly/CSUSADowd
Attorney Raymond J. Dowd and Professor Elizabeth Campbell will give a fascinating presentation on how artwork stolen during WWII bankrolled the Nazi war machine. Today, NYC-based Mr. Dowd is spearheading litigation and other legal efforts to return this artwork back to its rightful owners.
Join us on April 12, 2018, (Yom HaShoah – Holocaust Remembrance Day) for this exciting event, starting at 5:30 PM (MST). Colorado CLE credit is pending, but this evening is not just for lawyers. Anyone working or interested in fine art, art history, art collecting and dealing, and museum management is welcome!
The evening will begin with a cocktail hour with light refreshments, followed by Professor Campbell and Mr. Dowd’s presentations, and then an audience Q+A.
This event has been organized in part by our attorney, Shirin Chahal, in her role as co-chair of the Rocky Mountain Chapter of the Copyright Society of the USA, a 501(c)(3) devoted to copyright law awareness and education. Shirin gives a special thanks to all the event sponsors, whose generous support, financial and otherwise, have made this evening possible, and of course, the Law Offices of Daniel T. Goodwin.
By: Caroline R. Kert, Esq.
I’ve noticed a recent trend with artists calling to get help resolving a contract issue. The scenario usually unfolds something like this:
- The Artist had been contacted by a promotor/client/other artist to help capture photos or video.
- There is no written agreement, other than a few texts back and forth about payment rate and when to show up to the shoot.
- The Artist does the shoot, edits their product, and provides one or several complete products. This can be a series of photos or a few versions of a promotional video.
- The client begins using the completed works or forwards them on to their own client. The Artist usually finds this out by seeing the work on a website or FB feed.
- The Artist never gets paid and receives continued assurances that payment will come once the client receives payment from their own client.
What a horrible position for the Artist to find themselves in, and what an unsustainable reputation for the client to establish within the market!
But, not all hope is lost—copyright law can help the Artist gain some leverage in negotiating a resolution. The main thing the Artist should remember is that copyright in the images remain with the Author until there is an affirmative act to assign or license those rights to another. The Artist is the Author and retains copyright, unless they are 1) the employee of the client or 2) there is a written, signed agreement that defines the work as a Work Made For Hire, assigns the work, or licenses the work.
Without a WRITTEN AGREEMENT, a contract Artist has not given the client any rights to reproduce, display, or otherwise use the work. This can often provide a lot of pressure to get payment when the Artist clarifies this to the client. Without rights in the work, the client is arguably infringing on the Artist’s copyright when reusing the work or selling it to a third-party. In our experience, a well-crafted cease and desist notice to the third party can generate immediate attention and payment.
Even with a written agreement, the doctrine of Work Made for Hire is often misunderstood by artists and their clients. Very few types of projects qualify for treatment as a Work Made for Hire. Even if there is a clause that attempts to identify the client as the copyright owner, it often fails.
Of course, every situation is different and you should contact a lawyer that specializes in artist representation before taking action. Your attorney can help you review communications and written agreements to assess what next steps can help you get paid.
To help minimize the potential for conflict, always get your agreement in writing and clarify when payment is due (payable in stages with various deliverables, and never dependent upon whether the Artist’s client gets paid by a third party).
We get this question a lot. Artists, designers and other creative entrepreneurs are busy people! So, why should you go through the trouble of registering your copyrights and putting copyright notices on your works if, under U.S. Copyright law, you have copyright protection as soon as your work is “fixed” in a tangible medium?
We understand the instinct that you surely have better things to do with your time and money, but notice and registration are what give our copyright law its teeth!
Let’s say you discover that a major fashion retailer has copied your artwork on t-shirts and has been selling it all over the world? You file a lawsuit and the judge finds in your favor. You won!
Or maybe you wrote a catchy melody and uploaded a YouTube video of yourself playing your guitar and singing it. A major brand uses part of your melody in its new commercials for cleaning products. You file a lawsuit and the judge finds in your favor. You won!
Having a valid copyright registration may mean the difference of being awarded $100,000 in statutory damages, plus an order that the other side has to pay your attorneys fees, versus having only a piece of paper from the Court saying you were right and a $15,000 bill from your lawyer you now have to pay.
In other words, to really benefit from copyright law, you need to have a copyright registration certificate from the U.S. Copyright Office, and you have to let others know you claim copyright protection in your content.
Statutory Damages and Attorneys’ Fees
Current copyright statutory damages are set out in 17 U.S.C. § 504. They range from $750 to $30,000 per work, an amount to be determined at the discretion of the Court depending on the facts of the case. However, if a defendant can show that they were “not aware and had no reason to believe” they were infringing copyright, they may ask the Court to have the damages reduced to $200 per work. This is why providing notice is key.
If you can show the defendant was willful when it infringed on your copyright – it was deliberate, voluntary and intentional – a judge is authorized to award you damages of up to $150,000 per work!
Also, if you did properly place some kind of copyright notice information on or in your work, and the defendant intentionally removed it before they copied you, they could be liable for an additional $200 to $25,000 per occurrence under the Digital Millennium Copyright Act (DMCA)! An example of this would be a website owner cropping your photograph in a way that the copyright notice information you’d place in the bottom corner, and then publishing the image online without your permission.
In other words, statutory damages can really add up, and they allow you to avoid having to hire damages experts to prepare costly reports and testify on exactly how much you were financially damaged by your infringer’s activities. Moreover, attorneys’ fees provisions means if you are successful in your lawsuit, the other side pays your lawyer’s bill. Even if a lawsuit is never filed, copyright registration and the mere threat of statutory damages can provide you leverage to protect yourself and your business.
What Is “Notice”?
A good copyright notice lets the public know that (1) the content is protected by copyright; (2) who the author or owner is; and (3) when it was first published.
Beyond this, there is no required form or method for providing this information.
One way is:
Copyright © 2018 Sally Jones. All rights reserved.
© 2018 Sally Jones
You could also provide more detail:
Copyright by Sally Jones. Originally published November 29, 2017. Revised on January 2, 2018.
You may have noticed major movie studios like Roman numerals:
© Time Warner Studio MCMXCVIII
In other words, so long as you provide the required notice, the form and format is up to you.
If you have more questions about registering your copyright, or think your copyright is being infringed upon, give our Intellectual Property team call.
 17 U.S.C. § 504(c)(2)
 17 U.S.C § 1203(d)
Today, music is cheap, easy, and everywhere.
Sound recordings can be instantaneously accessed via terrestrial, Internet or satellite radio, YouTube, online streaming, or downloading. Nearly all of us carry around a mobile device that gives us access, whenever we desire, to vast catalogs of recordings. We play our music in the car, at home, and at work, and when we go out, it’s played for us at coffee shops, bars, gyms, stores and restaurants.
Perhaps because music has become so ubiquitous, many have a hard time understanding when and why anyone would have to actually pay for it.
Public Performance Licenses
A growing number of small businesses and nonprofits are thus unpleasantly surprised when they receive a letter, phone call, or even a personal visit from a performing rights organization (“PRO”) agent warning that they are playing music without the proper license and are thus participating in copyright infringement.
These business owners may be hostile to the idea of paying for something that they perceive to be free or to already own. Music sales among American record labels have plummeted since the early 2000s and in 2008, 40 billion songs were downloaded illegally. It is also estimated that 95 percent of music tracks are downloaded without payment to the artist or music company that produced them.
Nevertheless, under U.S. copyright law, owners of copyrights in sounds recordings have the exclusive right to reproduce, adapt, distribute and publicly perform the recordings. This means that under the law, purchasing a copy of a sound recording, whether an entire album or downloading one digital track from iTunes, does not permit the purchaser to further reproduce, distribute or perform the recording in public.
Performing Rights Organizations
PROs are responsible for licensing the music of the songwriters and music publishers they represent, collecting royalties whenever that music is played in a public setting, and distributing quarterly royalty checks to the copyright holders of their catalogs.
There are three PROs in the U.S.: (1) the American Society of Composers, Authors and Publishers (ASCAP); (2) the Broadcast Music, Inc. (BMI); and (3) Society of European Stage Authors and Composers (SESAC). A copyright holder can only sign up with one of the three PROs, which means each PRO holds rights to completely different catalogs of musical works.
PROs spend much of their time negotiating with television and radio broadcasters and large entertainment companies who operate stadiums, clubs and theaters. However, a not-insignificant amount of time is also spent educating small business owners all across the country that they are legally required to pay for the music they use.
Today, researching small businesses has never been easier for PROs thanks to the Internet. PRO agents watch for small businesses who advertise live music, karaoke or dancing, but under the law, any business that plays music is likely responsible for paying PRO licensing fees, including grocery stores, hair salons, sports venues, retirements homes, and funeral parlors.
Although “education” is the key word as far as how PROs view their work with small businesses, individuals who get a visit or phone call may remain resistant to the idea of paying fees to play music. Some small business may find PRO’s license fees to be cost-prohibitive. However, many simply believe that playing music is free or that we should be able to do whatever we want with the music we already own.
As an example of such resistance, the owner of Roscoe’s House of Chicken and Waffles ignored ASCAP for seven years before they finally sued him for copyright infringement. The 9th Circuit Court of Appeals eventually found Herbert Hudson and his corporation liable for nearly $200,000 in damages and attorney’s fees for playing eight unlicensed songs that were held by ASCAP!
This risk of lawsuit is real. ASCAP files between 250 and 300 copyright infringement lawsuits annually and BMI files between 100 and 200 lawsuits annually.
Do I Need a License?
Any store or other small business playing musical recordings through a playback device or radio receiver is engaged in a performance under the Copyright Act. Those who “participate in, or are responsible for, performances of music are legally responsible” for obtaining permission from music copyright holders. The law applies very broadly, so it is safer to assume you do need a license than don’t!
If a PRO is bringing a charge of copyright infringement against a business owner, generally there are two defenses:
- Section 110(5) Exemption (the “Homestyle Exemption”)
The Copyright Act provides an exemption for the reception of radio or television broadcasts in an establishment open to the public for business. This means a business can switch on the radio or TV and play broadcasted music performances without paying for a license. This exemption does have more nuanced rules that consider gross square footage, number of loudspeakers, number of devices, etc., and does not explicitly include Internet radio or streaming serves like Pandora.
- No “Public Performance”
Under current copyright law, a “public performance” occurs when music is played “in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”
This means that playing music from a purchased CD at your 500-attendee family reunion is not a public performance, but playing the CD for just 2 patrons sitting in your bar on a Wednesday afternoon is. Courts have ruled public performance occurs even where the customers are not directly charged for listening to the music. Gray areas are “semi-public” places such as factories or condominium common rooms. The legislative history of the 1976 Copyright Act makes it clear “semi-public” performances are to be treated as “public performances” under the statute, but this language did not actually make its way into the final law.
As such, arguably music being placed for relatively-small work staff, say, the kitchen employees at a restaurant, that is not distinguishable to customers is likely not a public performance.
How to Avoid Copyright Violations for Playing Music
- Play music broadcasted from radio or television only.
As stated above, this could fall under the Homestyle Exemption, but care must be taken that your performance falls within the boundaries of the exemption rules. If your location is more than 3,750 square feet for a food or drinking establishment or 2,000 feet for any other type of business, you may be subject to additional rules that impact whether you need a license or not.
- Pay the annual PRO fees.
Licenses can range from $200-$500 up to $8,000 annually, depending on the type and size of business, how many speakers or playback devices are in the establishment, and the prominence of the music to business operations. Again, because there are three different PROs, businesses must either obtain three separate licenses or be carefully selective of the music played to ensure only one PRO’s catalog is used.
- Use music licensed from the Creative Commons.
Music publically performed from the Creative Commons typically still requires a license, but costs significantly less than the PRO fees. However, music under this license includes primarily less well-known songs from independent and emerging artists.
- Play only original content.
A business can host live bands and musicians, but generally the performers must be instructed that they cannot play cover songs unless the performer has already formally obtained permission from the original songwriter to play it.
A business owner can also write his or her own original compositions to be played at the establishment.
- Enroll with a music service provider.
Have you received a letter from ASCAP, BMI or SESAC? Are you opening a new business and need help navigating the licensing process or rules? Contact the Law Offices of Daniel T. Goodwin today to speak with an attorney.