Monetizing Internet Memes & Copyright Law

When our Intellectual Property/Arts & Entertainment team presents at one of its legal workshops (and we typically do these for various arts groups along the Front Range), sometimes we tell the story of  Carlos Ramirez, the creator of the Trollface meme.

In 2008, Carlos was procrastinating on a college term paper and drew a face in MS Paint to post on an online message board. People seemed to like it.

In 2010, Carlos registered his drawing with the U.S. Copyright Office, and thereafter successfully monetized his work in a wide variety of ways. You can read more about Carlos’s fascinating tale here. In short, as of mid-2015 Carlos had made over $100,000 through various exploitations of the Trollface (both merchandise licensing, as well as settlements under claims of copyright infringement he brought against various parties).

We like to share Carlos’s story at our workshops because it illustrates how beneficial copyright laws can be to professional artists and even lucky doodlers, like Carlos. If you create an image that becomes a viral meme, are savvy enough to register it with the U.S. Copyright Office, and put in the time to actively market, license and police the use of your work, you too could make six figures! Or so we say.

However, maybe Carlos and his Trollface meme lucked out during the “OH! The Internet Is a Thing!” stage, which appears to have ended several years ago now.  The Atlantic just published a story about how making money off Internet memes is becoming harder and harder. The pace of online trends and the time frame for what people think is funny (or at least, funny enough to spend some money on) is too fast to keep up with. “It feels like the internet is all moving a lot quicker.” “Today, memes come and go sometimes faster than T-shirts can be printed, and there’s nothing more mortifying than donning a T-shirt with a dated phrase.”

As attorneys, we think we will probably still teach our workshop attendees about Carlos and Trollface, because it’s a funny and unusual story, and helps people learn about how they can reap real legal benefits if they know how to make copyright law work for them. We just may no longer promise the potential for them to make riches off their memes!

If you have questions about copyright law or operating an e-commerce business, contact our Intellectual Property or Small Business team today.

SESAC, SoundExchange, SoundScan: Why Are Music Royalties So Confusing?

Many indie artists are confused about the difference between ASCAP, BMI, SESAC and SoundExchange, not to mention SoundScan, the Harry Fox Agency, and the role of their own publishing company and record label when it comes to collecting and paying money under the exploitation of their music.

The problem with not understanding these concepts is that you could get taken advantage of by unscrupulous players in the business or just simply lose out on valuable revenue.  A 2015 Berklee College of Music report found that anywhere from 20-50% of music payments do not make it to their rightful owners!

This post aims to provide independent songwriters and musicians some basic information to help them understand various music royalty issues.

Music Copyright Basics

To understand music royalties, it helps to understand the underlying legal framework behind music copyright in the U.S.

Under our Copyright Act, any musical work that has been reduced to a recording has two copyrights: (1) one for the sound recording embodying the performance, and (2) one for the underlying composition (musical arrangement and lyrics).

 

Happy Birthday Composition
Happy Birthday Sound Recording

A composition or sound recording copyright gives you the following bundle of rights:

  • The right to reproduce the work (make physical or digital copies)
  • The right to distribute the work (sell, share or give away for free)
  • The right to make derivative works (made other arrangements or cover versions)
  • The right to publicly perform the work (a “performance” can be live or a replay of the recording of the work)

Additionally, there is one more right specially provided in the law for only for sound recording copyrights:

  • The right to perform the copyrighted work publicly by means of a digital audio transmission.

A lot of the confusion regarding music royalties comes from the fact that each of these distinct rights may produce royalty money for the copyright holder or the performer (or both!).   Moreover, over the years, different organizations have taken charge of managing or administering these rights for songwriters and performers, and certain “rules” have been established not based on the law, but on industry practice.

One example: the industry divides composition copyrights into a 50% “publisher’s share” and a 50% “songwriters share”, even though there is nothing in the Copyright Act dividing legal rights in this way.

Another example: composition copyrights are often assigned to publishing companies, whereas sound recording copyrights are often owned by the record label who paid for the production and promotion of the recording.  Meanwhile, a number of special royalty-collecting organizations have sprung up to address the practical realities of monitoring the use and performance of music on a nation-wide scale.

The Public Performance Right (Traditional vs. Digital)

ASCAP (American Society of Composers, Authors, and Publishers), BMI (Broadcast Music, Inc.)[1] and SESAC (formerly, the Society of European Stage Authors and Composers) are U.S. public performance organizations (PROs) who help copyright holders collect performance royalties for the public performance of music compositions.

Radio stations, concert venues, sports arenas, bars, restaurants, malls – any place where the public is generally free to enter and music might be played – all pay fees to PROs.  In exchange, they get a blanket public performance license that gives them permission to play live or recorded music at their location.  The PROs pass these collected license fees on to the composition copyright owners.

Complicating the understanding of how PROs work is that they follow the 50% publishers share and 50% songwriters share scheme, so even if a composer or songwriter has assigned 100% of their composition copyright to a music publisher, the composer/songwriter will still get money directly from their PRO.  If a composition copyright owner does not have a publishing company, they will receive both halves from their PRO.[2]

Meanwhile, SoundExchange is a PRO that collects performance royalties under a different right under copyright law.  SoundExchange assist copyright owners of sound recordings (not compositions) under digital performances (not traditional performances) of those works.

While there is huge amount of music that is transmitted over the Internet and other digital formats, it is key to realize that SoundExchange only collects digital performance royalties on non-interactive streaming services where the listener cannot control what they hear (i.e., a DJ or an algorithm is selecting the songs).  Thus, music providers such as SiriusXM, Pandora and cable music stations pay licensing fees to SoundExchange.  SoundExchange splits up the royalties it collects into 50% for the record label, 45% for the “featured artist”, and 5% for the “non-featured artists” (i.e., sessions musicians, background vocalists, etc.).  Again, SoundExchange does not pay royalties to composition copyright owners.

SoundExchange does allow its royalty payments to expire if an artist does not register and collect them within a certain time frame, so if you are an artist who is in any way featured on recorded music, you should create an account with this PRO right away!

The Reproduction and Distribution Right

Songwriters and performers who want to sell their music to the public generally desire contracts with either a record label, record manufacturer or a distribution company (sometimes, a combination of these), in which they will license their rights under copyright to reproduce and distribute their works.  There are many ways to arrange these relationships and if you can, you should negotiate for an arrangement that works best for you.  Then, make sure you have a straightforward written agreement that correctly reflects the understanding you reached with the record label, manufacturer or distribution company.

Most record labels and manufacturers will collect all revenues from any exploitation of the copyrights, then pay royalty payments to the songwriter or artist on a predetermined percentage based on units sold.  A big negotiate point is also whether the label or manufacturer will “advance” money to the artist to produce, press or promote the music, and how they get to recoup those costs.

To keep track of units sold, much of the music industry uses SoundScan, a service that tracks sales of music products throughout the United States and Canada.  Record labels often rely on SoundScan to determine the royalties earned or due to one of its contracted artists.  SoundScan is also the data source for the Billboard music charts.

Mechanical Royalties are payments made for the rights to include a composition in a sound recording (under a copyright owner’s right to copy and distribute).  Under U.S. copyright law, once a song has been published, anyone can record it as long as the statutory mechanical license is obtained and the fee established by the Copyright Act is paid (the current statutory rate is 9.10¢ per copy for songs 5 minutes or less).  Many composition copyright owners (including publishing companies) authorize the Harry Fox Agency to issue mechanical rights licenses on their behalf, and the law treats these royalties for physical products (CDs, vinyl) and digital products the same.

Synchronization or “Sync Licensing” is when a composition copyright owner grants permission to use their work in an audiovisual setting, such as a movie, a TV show, a videogame or in a commercial.  There is no statutory or industry standard rate for this.  It is negotiated based on a number of factors.  Sync licensing is becoming an ever more important source of income for songwriters and publishers.

A “master license” is needed in conjunction with a sync license if someone wants to use the sound recording of the licensed composition as well.  It is possible to get a sync license and simply re-record your own version of the work if you do not want to pay for, or are unable to obtain, the master license for a certain song.

International Royalties

A discussion of the many different music laws, royalty schemes, PROs, and other supporting organizations located outside of the U.S. is beyond the scope of this post, but many international schemes are similar to ours, so if you understand the underlying copyright law and framework here, you will have a leg up as you begin to distribute and sell your music internationally.

If you have questions or corrections about any of this information, or needs assistance with a publishing contract or record contract, give our Arts & Entertainment team a call!

 

 

 

 

 

 

[1] Inside tip: If you’re an artist who constantly performs your own compositions in live concerts, but you’re not on the radio or TV, you can sometimes make special arrangements with BMI (but not ASCAP) to get paid.

[2] Another inside tip: If you sign up with ASCAP without a publishing company, you will need to register a “vanity publishing company” – make something up for ASCAP. If you don’t do this, you will only get half of your money.

What’s a Copyright Troll?

DTG’s Intellectual Property Team has seen a new and unwelcome legal trend emerge in Colorado over the last few years: copyright trolls.

Peer-to-Peer (P2P) File Sharing Lawsuits

Since in 2010 and really ramping up in about 2012-2013, a small group of copyright owners has flooded our federal court system with lawsuits against tens of thousands of “John Doe” defendants. These lawsuits are based on alleged copyright infringement on peer-to-peer file-sharing networks (for example, using the BitTorrent protocol).  The lawsuits are sometimes initiated against a single defendant, but more often than not are filed against dozens or even hundreds of John Doe’s in a single lawsuit.

What Makes a Plaintiff a “Copyright Troll”?

 We call these “copyright troll” lawsuits because:

  • The suits are rarely brought by the actual copyright creators or bona fide owners, but by a company, as an assignee[1], whose sole purpose appears to be to file hundreds of lawsuits against online file sharers.
  • The claims of infringement often rely on poorly-substantiated pleadings with language that shows a fuzzy understanding of how the technology behind P2P file sharing actually works.
  • Due to the high volume of actions filed, the lawsuits frequently catch up non-infringers in daunting legal proceedings.
  • The strategy represents an opportunistic way to collect hundreds of “nuisance settlements” from defendants who are confused, intimidated and overwhelmed by being sued in federal court.

The Copyright Troll Business Model

 The copyright troll business model works like this:

  • Monitor online file-sharing networks and collect evidence of possible infringement. Copyright trolls often use a process that produces a list of alleged infringements with associated Internet Protocol (IP) addresses.
  • File a complaint in federal district court alleging copyright infringement by individuals who are identified only by IP addresses.
  • Seek a court order to compel Internet Service Providers (ISPs) to provide individual account holder information matching the IP address.
  • Contact those account holders by letter and threaten to seek very large awards of statutory damages (up to $150,000 for a single download!) but offer to settle for amounts ranging from $3,000 to $8,000.
  • Settle as many cases as possible, and abandon virtually all the rest.

In other words, copyright trolls play a numbers game, targeting hundreds or thousands of defendants to secure quick settlement payments priced just low enough that it is less expensive for the defendants to pay than to defend themselves in court. This business strategy has netted copyright troll plaintiffs millions of dollars in settlement payments!

If you’ve received a letter from your ISP about a legal order (subpoena) to reveal your identity to the Colorado district court, or a letter from a copyright troll demanding a huge settlement, please contact us at once. Our experienced team of intellectual property and litigation attorneys can help you resolve your case in the best manner possible. Our team is listed in the Electronic Frontier Foundation’s Subpoena Defense Resources page.

 

—-

[1] Examples of these copyright troll companies include I.T. Productions, LLC; Killer Joe Nevada, LLC; CELL Film Holdings, LLC; Survivor Productions, Inc.; and Dallas Buyers Club, LLC.

Can I Embed Someone Else’s Tweet on my Website?

That Tweet that has been making the rounds, and maybe even gone viral, should be fair game, right? Everyone has been retweeting it, so embedding the original tweet into my website isn’t hurting anyone…riiiight?  Well, not so fast. The answer may depend on where the case is heard.

Katherine B. Forrest, a U.S. District Judge for the Southern District of New York, recently issued an interesting order on this issue. Seems that Breitbart News Network, Yahoo, and a number of other online news outlets failed in making the same argument.

It seems that they all embedded a tweet (which had gone viral) into their own online websites. The tweet included a photograph of Tom Brady taken by Justin Goldman, and originally posted by him to Snapchat.

The photograph caught fire and several users uploaded it to Twitter, and eventually landed on the news websites. Goldman argues that he never publicly released or licensed the photograph, so he’s suing for infringement of his exclusive copyrights in the image.

The news outlets claim that they never actually downloaded or copied the photograph because it technically remained housed on the Twitter servers, linked through the embedding code on their own websites.

In what some have labelled a “surprising” decision, Judge Forrest set aside the 9th Circuit’s “Server Test”, which would determine infringement based upon whether an image is hosted on the alleged infringer’s server. Rather, she granted partial summary judgment to Goldman, holding that the fact that the image was never stored on the news websites’ servers was not dispositive.

Judge Forrest did leave the issue open as to whether the news outlets had raised effective defenses against infringement—citing potential arguments under fair use, the Digital Millennium Copyright Act and innocent infringement theories.

In reaching her decision, Judge Forrest examined the exclusive right to display the photograph (as opposed to copy or make a derivative work) granted to Goldman under the Copyright Act of 1976. Her opinion delves into a history of the right to display and the fact the drafters of the Copyright Act wanted it to encompass “new, and not yet understood, technologies,” such as Twitter.

Her decision also references a 10th Circuit decision, out of the U.S. District Court for the District of Colorado, which came to a different result. In Colorado, the District Court has (at least for the time being) applied the “Server Test” to a similar case.

In the 2016 Grady v. Iacullo decision, the Court held that, when a website includes a hyperlink to a copyrighted work, a copy has been created and infringement may have occurred. “transferring a copyrighted work into a computer’s RAM can create a copy under the Copyright Act.” However, the court requested that additional information be provided to it by the parties and a final ruling has not been made.

While final rulings and appeals are yet to be announced, beware the shifting sands of technology…embedding another’s image in your website may be more trouble than it’s worth.

If you have questions about this or any other copyright or licensing issue, contact our Arts & Entertainment Team today.

Trademark Law & Comic-Cons

A federal jury recently returned a verdict in favor of the San Diego Comic Convention (SDCC) in its trademark infringement lawsuit against Salt Lake Comic Con (SLCC). At issue was SLCC’s use of the phrase “comic-con” for its annual comics and pop culture convention held in Salt Lake City. SDCC has held an annual comics and pop culture convention in San Diego since the 1970s.

Both sides – SDCC and SLCC – said saw the jury’s December 2017 verdict as a win.  SDCC had asked for $12 million in damages, but the jury awarded only $20,000 because they found SLCC had not infringed on SDCC’s trademark “willfully.”

Meanwhile, SLCC had tried to argue SDCC didn’t have a valid trademark, because “comic-con” was a generic phrase used worldwide to generally describe any kind of convention devoted to comic books, superheroes, sci-fi, fantasy or any other related aspect of “geek culture.” Under trademark law, you generally cannot trademark a term that’s in common use. In fact, even when a properly trademarked word becomes commonly used in a generic way, the trademark owner may lose their rights (think kleenex, chapstick or velcro, all trademarks that have become “genericized”). So, SDCC tried to argue the same thing has also happened to “comic-con”.

During the trial, SLCC presented evidence that there were hundreds of comic-cons all over the world (“New York Comic Con”, “Phoenix Comicon”, “German Comic Con Berlin”).  They also presented evidence to the jury of how, in the 50 years SDCC has been in existence, its lawsuit against SLCC was the very first time SDCC attempted to defend its trademark in court.

Ultimately though, the jury rejected the argument that “comic-con” has become generic and found SDCC’s trademark was still valid.

One interesting aspect of this lawsuit is that the court did not allow the jury to hear that SLCC was simultaneously challenging SDCC’s “comic-con” trademark registration with the U.S. Patent and Trademark Office (USPTO).  The USPTO issued a trademark registration certificate for “comic-con” to SDCC in early 2007.  SLCC held its first event in 2013.

SLCC initiated what’s called a trademark cancellation proceeding, which is an administrative action, completely separate and apart from its federal jury trial, held before the Trademark Trial and Appeal Board (TTAB). A trademark cancellation proceeding allows a party to request that a registered trademark be cancelled so that the holder of that trademark no longer has any rights under it.

As of the date of this blog post, a number of other parties have filed cancellation proceedings against SDCC, including Denver Comic Con, Phoenix Comic Con, and a subscription service that offers a “ComicCon Box” service.

Regardless of how the jury in Utah decided and what happens with SLCC’s federal appeal, we will ultimately have to watch what the USPTO does to see what the fate of all the comic-cons will be!

If you have any questions about this post or trademark law, contact our Intellectual Property team today.

 

Could AI Get a Copyright?

In 2016, a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt.  This painting was actually generated by a computer, which had analyzed thousands of works by the 17th-century artist Rembrandt Harmenszoon van Rijn, and then used the data to create its own work in the same style.  In the same year, a Japanese computer program wrote a novel called The Day A Computer Writes A Novel, which remarkably passed several rounds of judging for a national literary prize.

Meanwhile, Google is developing an artificial intelligence program that it hopes will write news articles, and already owns an artificial intelligence company called Deep Mind that has created software that can generate music.

Other AI projects have been able to develop computers that can edit photographs, write poems,  and even compose complex musical works with no human involvement.

Creating copyrightable works using artificial intelligence (AI) will undoubtedly have very important implications for copyright law. Traditionally, determining the owner of a copyright in computer-generated works was not a problem because the computer or software was merely a tool that supported the creative process, analogous to a pen and paper or camera and film. Now, AI is now creating works free from any direction or assistance from humans!

Since the advent of mechanical ways to play music (think player piano rolls in the 1880s), new technologies have always exceeded the boundaries of the existing copyright law, meaning the courts and the lawyers have been forced to stretch existing doctrines in their attempts to encompass the novel and unprecedented scenarios presented by this new technology.

The next frontier in copyright law, and issue that will test the language in our current statutes, will involve works created directly by computers.  Right now though, these copyright implications are by no means clear. Should these original and creative works still be deemed to be made by a human author (i.e., the individual who designed or programmed the AI or initiated the “go” command) or independently by the AI alone? Would it be legally just to refuse to grant copyrights to music, novels, dramatic works and art created by AI?  Would this refusal harm the content creation industry?

Our Intellectual Property Team will certainly be following these efforts!

Trademark Law & Champagne Powder

If you love to ski or snowboard, you may have heard of “champagne powder”, the dry, light and fluffy snow we love best.  But, from a meteorological standpoint, what is it?

Well, champagne powder does not actually describe a particular kind of snow crystal or water-density level, nor is it a term much used by meteorologists or snow scientists.

Instead, “champagne powder” owes its fame to ski industry marketing, with one resort in particular, Steamboat Ski and Resort Corporation (Steamboat), leading the charge.

According to Steamboat legend, back in the 1950s, a rancher named Joe McElroy was skiing with friends near the town of Steamboat Springs, Colorado (before the resort was created) and got sprayed in the face with snow.  He told his friends it tickled his nose like champagne – “champagne powder!” The phrase began to spread across the Yampa Valley, and starting in the 1960s, Steamboat the new ski resort started using it in its marketing.

Five decades later, Steamboat took legal steps to claim exclusive rights to “champagne powder.”  It filed a federal trademark application with the U.S. Patent and Trademark Office (USPTO) in 2008.  It also started sending cease and desist (C&D) letters to anyone publishing the phrase, stating Steamboat had obtained common law trademark rights.  In June 2010, the USPTO issued an official registration certificate to Steamboat for CHAMPAGNE POWDER related to “resort lodging services”.

With its C&D letters, Steamboat pursued an aggressive trademark protection strategy aimed at preventing anyone else, including journalists, bloggers and weather professionals, from using “champagne powder” to describe snow or ski conditions at all.

Then in 2014, Steamboat successfully prevented a gaming software company from using “Champagne Powder” for a casino video game.

It is fair to say Steamboat’s early round of C&D letters infuriated the ski community.  Recipients from California to Utah to Montana shared their letters, as well as the name and contact information for Steamboat’s attorney, all over the Internet.  Online forums and message boards pointed out that “champagne powder” had been widely used in the global ski community for decades, not to describe a particular ski resort or mountain, but a certain kind of snow conditions.  In fact, at that time Champagne Powder even had its own Wikipedia page.  This page made no mention of Steamboat.  The introduction only stated:

“Champagne powder is a very smooth and dry snow, which is great for skiing. The term originates from the ski resorts in the Rocky Mountains, which often have these snow conditions. The name derives from the sparkling wine champagne . . . .”

then went on to describe the weather conditions that created the snow.

Meanwhile, at least one business, Unofficial Networks, a “ski bum’s guide to outdoor news and entertainment”, thumbed their noses after receiving their Steamboat C&D letter and revised a certain offending headline to “Sparkling Wine Powder.

Steamboat’s response to the flurry of bad PR around the country was to explain that, under trademark law, they were required to issue a C&D letter whenever they saw a use of “champagne powder” that infringed its trademark rights.

Steamboat was correct.  Trademark law says that if a trademark owner doesn’t adequately monitor its mark and allows others to use (and infringe on) it, the trademark rights can be invalidated.  Enforcement is a required part of trademark ownership.  If you don’t enforce, you potentially give up your rights.

However, it is important to realize that a federal trademark registration does not give you absolute rights to prevent anyone else from using the word or phrase in any context whatsoever.  Trademark law is designed to protect consumers from confusion about the source of products and services.  It is not designed to give trademark owners an exclusive property right to those words, phrases or designs.  That is, it doesn’t let you claim that any use of your trademark by a third party violates the law.

Thus, arguably, Steamboat’s enforcement efforts are appropriate only if it prevents uses of “champagne powder” that are confusing consumers, with the big assumption being that most of us know “champagne powder” as something related to the Steamboat brand.

Is Steamboat’s champagne powder enforcement strategy actually in line with trademark law? The appropriateness of the legal claims Steamboat makes in its C&D letters and its other aggressive trademark protection efforts cannot be determined unless Steamboat finds itself in court.  Then, a judge or jury will be tasked to decide whether its positions are valid under current trademark and unfair competition law.  So far, no one has formally challenged Steamboat to determine how strong its “champagne powder” trademark actually is.

If you have received a C&D letter from Steamboat or anyone else, or have questions about registering your trademark or protecting your brand, contact our Intellectual Property team today!

 

I Haven’t Been Paid, But They’re Using My Images!

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).

If you need assistance getting paid for your work or understanding the contract you’re being asked to sign, please contact our Intellectual Property Team today.

 

What Can I Copyright?

Copyright is a type of intellectual property that protects “original works of authorship.”

Literary works (poetry, novels, newspaper articles), musical works (songs and their lyrics, orchestral compositions, movie scores), dramatic works (films, plays) and visual arts (paintings, prints, comics, sculptures) easily come to mind when thinking of works that probably have copyright protection.

However, copyright can be a lot broader! U.S. law allows you to claim copyright in software, architecture, fictional characters (for example, Superman), pantomimes and even your business’s logo.  Online, the contents of a website or blog, including its text, graphics and videos, can also have copyright protection.

This broad nature of copyright is no accident.  The Copyright Act acknowledges that future technologies may create new kinds of content that can be protected.  When the founding fathers provided for copyright in the U.S. Constitution more than 200 years ago, they surely could not fathom billion-dollar superhero movie franchises or the Internet!

So, instead of providing an exhaustive list of things that can have copyright, the law simply establishes certain elements that must be met for a work to have copyright protection.

Elements of Copyright

To be copyrightable, a work must:

  • Contain a minimal degree of creativity
  • Be created by a human author

The recent case of Naruto v. Slater[1] confirmed animals are not afforded rights under U.S. copyright law.  This ruling meant “Naruto”, a crested macaque monkey who took a charming and commercially-viable selfie, could not sue to own the copyright of the photograph.

  • And be fixed in a tangible medium

The work has to be captured in a way to that it can be perceived, reproduced, or communicated for more than a short time.

Copyright protection in the U.S. exists automatically from the moment the original work of authorship is fixed.  You do not have to register the copyright, print a copyright notice on the item, or publish the work to have copyright protection!

(But read more about why you should register your copyrights in our blog post here.)

Exceptions to Copyright

Copyright does not protect ideas, procedures, systems or methods of operation.

Copyright also does not protect facts and mechanical, clerical content (for example, a phone book).

Copyright does not protect simple, short phrases.  If you wrote a pop song with only one lyric – “Baby, I really love you…” – you probably wouldn’t be able to copyright this phrase and prevent other songwriters from authoring similar sentiments.

Copyright also does not protect content authored by the U.S. Government.  Thus, you can freely quote federal governmental reports, publications, websites and laws.  Be careful though!  This exception is not true for other governments, such as the U.K.

If you have questions about copyright law, how to register your works with the U.S. Copyright Office, or what to do if you think someone is violating your copyrights, contact our Intellectual Property team today.

[1] 15-CV-04324-WHO (N.D. Cal. Jan. 28, 2016).

Photo Credit: Kelli Tungay on Unsplash

Why Should I Bother to Register My Copyright If My Work is Automatically Protected?

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.[1]  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![2]

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)![3]  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.

Or simply:

© 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.

 

[1] 17 U.S.C. § 504(c)(2)

[2] Id.

[3] 17 U.S.C § 1203(d)