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July 19, 2013

Protection of and enforcement of Moral Rights

The issue of moral rights oftentimes comes up when the author of some kind of work assigns or licenses to a third party, who then adapts that work in such a way that the author is unhappy. Moral rights are oftentimes believed to be associated with copyright rights. However, moral rights are separate and distinct from copyright rights. Whether or not the United States affectively recognizes moral rights is not entirely clear based upon existing case law, but it is an area of law that deserves attention especially in light of the questions surrounding moral rights.

Generally speaking, moral rights are comprised of four different rights. These include the right of integrity, the right of attribution, the right of disclosure, and the right to withdraw work from the public. As noted above, the US has not recognized each of these rights to the extent that European countries have. In the event that the United States Court do recognize moral rights, they typically recognize them under the guise of other legal theories, such as unfair competition, invasion of privacy, defamation, and breach of contract. They may even be associated with copyright rights. For example, one of the most publicized cases involving moral rights related to a reliance upon copyright law and unfair competition principles to safeguard the integrity rights of the Monty Python group. In the case of Gilliam v. American Broadcasting Companies Inc from the Second Circuit, the court found that "although the law seeks to vindicate the economic, rather than the personal rights of authors...the economic incentive for artistic...creation...cannot be reconciled with the inability of artists to obtain relief from mutilation or misrepresentation of their work to the public, on which the artists are financially dependent". This court recognized, in the position that has been advanced since, that moral rights are distinct from economic rights. The creator of a work should be able to protect its moral rights in that particular work.

Ultimately, whether or not the author of a book, the creator of a piece of visual artwork, or other copyright owner may be able to claim moral rights is not entirely clear. That said, identifying when a moral rights issue may exist and determining enforcement efforts related to those moral rights can be a critical piece of any dispute, copyright or otherwise. Therefore, speaking with a copyright attorney who has experience with moral rights can help.

It is worth noting that the Visual Artists Rights Act of 1990 (VARA), set forth in 17 US 106a, is the first federal copyright legislation to grant protection to moral rights. However, VARA is limited to works of art that meet certain requirements. Whether or not VARA will lead to additional legislation beyond paintings, drawings, prints, sculptures, or still photographic images, remains to be seen.


Publishing Agreement Copyright Concerns

When an author decides to publish a book or some other kind of publication, a publisher will often require what is regularly known as a publishing agreement. A publishing agreement is a contract between the publisher and the author. It contains important terms relating to ownership of the copyright, payment, and other terms and conditions. Understanding your rights as either a writer or publisher is critically important before entering into a publishing agreement.

One of the most important aspects of the publishing agreement is an understanding as to the ownership of the copyright. Keep in mind there is what is known as a "bundle of rights" associated with the copyright. Therefore, one may be able to grant, or otherwise assign, certain rights while maintaining others. Typically, a publishing agreement will have the author grant the right to publish and/or reproduce the publication. However, it is critically important to determine whether or not the right to prepare derivative works, or otherwise adapt or modify, and other copyright rights, are to be transferred from the author to the publisher. It is also important to understand whether or not certain exclusive rights will be assigned under the agreement.

Payment terms are also disclosed in a publishing agreement. Typically, royalties are paid by the publisher to the author, with an opportunity for an advancement on royalties in certain cases. Regardless, understanding what the payment structure is becomes important, especially where rights beyond mere publication. For example, such as its adaptation into a movie or otherwise, occurs.

Finally, understanding what rights the publisher has to alter the author's work, sometimes known as moral rights, is also important. The publishing agreement should set forth who is to make revisions, how they are to be improved, and when proofs are to ultimately be finalized into a completed manuscript/book/or other publication.

Both parties should consider whether or not the provision dealing with a reversion of rights is necessary. For example, in the event that the publisher does not fulfill its obligations and publish the books within a certain amount of time, rights may revert to the author so that he/she may pursue alternative publication. The same may be said if the author fails to provide the required manuscript by a certain date. Time is of the essence, provisions are also considered for these same reasons.

Ultimately, since the publishing agreement is the contract that governs the relationship between an author and publisher, both would be well served to speak with a copyright attorney with experience in publishing agreements and other publication issues that could arise in that context.

July 12, 2013

Copyright Damages Risked By Use of Torrent Sites

There's plenty of commentary on the internet about copyright trolls, with entities such as Malibu Media being on the receiving end of that identifier. Malibu Media is a company that owns copyright rights to various pornographic works and have been active in filing copyright infringement lawsuits against defendants throughout the United States, including in the eastern district of Michigan and the western district of Michigan, for the unauthorized downloading and viewing of their works. In particular, Malibu Media files a complaint against a John Doe since they do not have the name of the person associated with the particular IP address. They then get expedited discovery from the court and subpoena the provider of that IP address, such as Comcast. The owner of the IP address is then provided notice by Comcast that their identity will be revealed if they do not quash the subpoena or otherwise resolve the matter with Malibu Media.

Once this person is provided notice, they have several options. First, they may determine that they did not violate any copyright and work with a copyright attorney to defend the lawsuit. Second, they may choose to fight the subpoena in hopes of the plaintiff not wishing to proceed further, although this is a risky endeavor. Third, they may try and resolve the matter without having their identity revealed. Copyright attorneys are available to assist in any one of these options. However, it is important for the person who is alleged to have infringed on others' copyright to understand what damages might be available under the copyright act. In particular 17USC504 provides the remedies in damages available for any copyright infringement. While a copyright owner, who has successfully registered their copyright will always threaten the $150,000 per infringement, known as the statutory maximum, that amount is not the only amount available. In fact, the Copyright Act specifically allows for damages between $750 and $30,000 as the court considers just, especially where there's no willful behavior on behalf of the alleged infringer. Tellingly, however, there is also the ability for the court, within its discretion, to reduce the award of statutory damages to as little as $200 per infringement. The fact of the matter is that there are cases that have interpreted the various provisions and can provide insight into which amount may be applicable to a given factual situation. If you have received a subpoena and could be at risk of statutory damages, you would be well served to speak with a copyright attorney who can assist you in determining your likely liability and financial exposure. Understanding what is at risk may help you to make an informed decision in the event you wish to settle or spend resources defending or otherwise tempting to quash the subpoena in the underlying matter.

Regardless, copyright infringement lawsuits by copyright owners do not appear to be slowing down. Therefore, you would be well served to understand, via a copyright attorney or on your own, what is at risk.

How to Address Copyright Infringement on the Internet

Almost every single day a prospective or existing client calls and asks how they are to address copyright infringement on the Internet. The answer to the question requires an analysis of what truly is at issue with the copyright infringement. This begins by identifying what the copyright at issue is. For example, is it a photograph, language or other written content, or a video? Once the specific kind of copyright is identified, it is critically important to find out who owns that copyright. While typically the creator of any kind of work is the owner of the copyright, employment issues and work-for-hire doctrines may reveal a different answer. Nonetheless, in order to understand how one is to address copyright infringement on the Internet must begin with confirmation as to ownership of a valid and existing copyright.

Assuming that the work at issue qualifies as a copyright, regardless of if its registered or not, the next step in the analysis is to identify who is making the unlawful use of that copyright. Given that the Internet is available in countries beyond the United States, we first try to determine whether or not we are dealing with a United States entity. There are various ways to confirm this. For example, we can look to domain name registration information, website server hosting information, and other company information to determine whether or not the alleged unlawful user of the copyright is located within the United States. This is important because the DMCA (Digital Millennium Copyright Act) may be an avenue through which a takedown notice can be sent if in fact we are dealing with a United States entity. Alternatively, if we are dealing with an entity located outside of the United States, we need to determine which laws apply to the same. For example, China is a signatory to the Berne Convention and thus allows various ways to address copyright infringement under Chinese and US law alike.

Having identified a copyright, and determined the identity and location of the alleged infringer, a copyright attorney will now advise the client as to its options. While a cease and desist letter is typically a starting point for copyright infringement on the Internet, there may be additional actions that can go with that notice letter. For example, as noted above, a takedown notice via the digital millennium copyright act may also accompany, although separately, any cease and desist letter to an alleged infringer. This will ensure that the web post also provides notice to the alleged infringer and may even extradite the removal of the infringing work if the alleged infringer does not cooperate. Besides letters, it is also important to determine whether a copyright infringer lawsuit can be filed.  In making this determination, it is important to factor in the considerations of the alleged infringers extent of liability, the likelihood of success, the likelihood of collectability, and related factors. Once advised by a copyright lawyer, the client can decide whether or not they wish to pursue a copyright infringement lawsuit.

Ultimately, addressing copyright infringement on the Internet begins with active monitoring of one’s copyrighted content. Knowing how your copyrighted material is being used and by whom allows you to more effectively address instances of copyright infringement on the Internet. Should you identify such infringing activity, you should contact a copyright lawyer who can work through the steps outlined in this post and ultimately address your copyright infringement on the Internet.

April 18, 2013

Subpoena to Reveal Identity Associated with an IP Address

This is Attorney Brian Hall with Traverse Legal, PLC; I am a copyright attorney that regularly handles copyright infringement actions and defense of the same throughout the United States. 

Today, I will be dealing with what has become a regular situation for many of my clients both prospective and existing.  And what we’re talking about today is when a subpoena has been issued to reveal the identity of an individual associated with an IP address.



Continue reading Subpoena to Reveal Identity Associated with an IP Address >>
February 11, 2013

Revenge Porn Websites & Copyright Infringement

If you are the victim of a posting on a revenge porn website, you're going to need a good web attorney to help you have the photograph removed.  Revenge porn websites have become very much the rage over the last 12-months.  Revenge porn typically occurs when someone posts a nude or naked photograph of their boyfriend or girlfriend on one of these revenge porn websites, an act which is often motivated by ill will. 

How do you remove a naked or provocative picture of yourself from one of these revenge porn websites?  There are a variety of different strategies both under copyright infringement law, the Digital Millennium Copyright Act (DMCA) and right to publicity, which could provide you leverage in removing a photograph of yourself from one of these websites.  Under copyright law, the person who takes the video or photograph is typically the copyright owner.  If someone took one of your photographs to which  you have copyright protection, you can send a Digital Millennium Copyright Act takedown notice from your copyright attorney to the revenge porn website in order to have it removed.  You also have a right to control how your likeness is used on the internet, especially commercial uses.  The right to publicity is often a legal theory used by attorney who are trying to remove revenge porn postings.  The first step, however, is to have your lawyer do a full analysis of your situation so that you don't make a wrong move out of the gate.  Identifying the appropriate legal strategy is the primary job of an experienced internet law attorney or website lawyer in handling a revenge porn website removal matter. 

January 30, 2013

Revenge Porn Website Faces Copyright Infringement, Invasion of Privacy and Defamation Claims

Copyright infringement, invasion of privacy and potentially defamation claims could exist when your photo, naked, pornographic or otherwise, is posted on a website without your permission. CNN Reports on one lawsuit which is being brought against a revenge porn website where ex-boyfriends can post naked or pornographic pictures of girlfriends who have broken up with them. The website allegedly will take the picture down if you pay them money. For many web visitors, this smacks of extortion.

Continue reading Revenge Porn Website Faces Copyright Infringement, Invasion of Privacy and Defamation Claims >>
January 02, 2013

Copyright Registration Does Not Equate to Copyright Infringement Liability Always

Any individual or business that wishes to protect its original work of authorship would be well served to pursue a copyright registration with the United States Copyright Office.  Registering copyright prior to an infringement or within three months of publication of the particular copyright does entitle the copyright owner and claimant to statutory damages as well as the potential for recovery of attorney’s fees.   In addition, registering a copyright before or within five years of publication of the particular work affords the copyright owner the presumption of validity of the copyright and the facts listed within the registration certificate.  Given the low registration fee associated with a copyright registration filing, it is typically advisable to pursue copyright registration.
Continue reading Copyright Registration Does Not Equate to Copyright Infringement Liability Always >>
November 28, 2012

How to Copyright a Song, Lyrics, and Music to copyright a song, lyrics, and/or music. It's important to recognize at the outset that those are three different things. A song is made up of both the underlying music or notes, along with the lyrics, that allow a song to be played. A song is essentially a sound recording that includes all of those elements. Whereas, music is put together by a composer. Whereas, lyrics are put together by a lyricist.

Continue reading How to Copyright a Song, Lyrics, and Music >>
November 27, 2012

Copyright Infringement: How much is too much?

Today I'll be answering the question, Copyright infringement. How much is too much? What I mean by that is, how much can someone copy from someone else without being liable for copyright infringement? It's a question I get almost every single day, from both perspective clients and existing clients. They want to know, if there's a particular work out there, how much they can copy before they're subject to copyright infringement liability. My answer is always the same. “It depends.” That's not a very comforting answer to clients, but it is the reality.

Continue reading Copyright Infringement: How much is too much? >>
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