Copyright infringement on the internet is a big problem for authors, artists, musicians, bloggers, media and other copyright owners. In today's episode of Copyright Law Radio, we are going to be speaking with copyright attorney Brian Hall as we examine the problem of growing problem of internet copyright infringement. When your copyright protected works are published on a web site without license or permission, you need to understand your legal options.
- What is a copyright under US copyright law?
- How do you protect a copyright from infringement, especially infringement on the internet?
- Do you have to register your copyright with the US Copyright office to protect it?
- What kind of services does a copyright attorney provide in order to protect copyright owners?
Enrico Schaefer: Welcome to Copyright Law Radio. Today’s show is Internet Copyright Infringement: Attorney Tips.
Copyright infringement is a big problem for authors and artists, musicians, bloggers, media and other copyright owners.
In today’s episode of Copyright Law Radio, we’re going to be speaking with Brian and examining the growing problem of internet copyright infringement.
When your copyright protected works are published on a website without license or permission, you need to understand your legal options.
How are you doing today, Brian?
Brian A. Hall: Doing well, Enrico, good to be here.
Enrico Schaefer: Good. Brian, in general, what is a copyright under U.S. Law?
Brian A. Hall: Well, a copyright refers to the laws that regulate the use of the work of a creator, such as an artist or an author. It’s really an exclusive legal right given to an originator or, in some instances, an assignee, to print, publish, perform, film or record literary, artistic or musical material, and also authorize others to do the same.
So, it sounds like a lot, but really what it boils down to is an exclusive legal right given to the person that creates an original work. And it requires three things under the law:
The first, an original work, and it’s really a low threshold as to what qualifies as an original work. The legal language is a modicum of creativity and independent creation. What that really means is did you do it on your own without looking at something else or someone else’s work. So that’s the first thing that’s required to have a copyright.
The second, it must be fixed. And what that means is fixed in some form. So you can’t just have an idea, some nonconcrete idea, you need to actually put it into paper or onto to paper or something along those lines, make a recording, whatever it might be.
And finally, the third element is it must be fixed in a tangible means of expression. And that’s really a legal term of art, but what that means is, again, more than simply having the idea. It needs to be captured on video or canvas or sculpted, whatever it might be, to qualify for a copyright under U.S. law, Enrico.
Enrico Schaefer: Nice, so when we think about these things, of course, as copyright infringement attorneys or lawyers who specialize in these kind of copyright law issues, both in terms of protection in terms of getting your copyright registered but also in terms of when one of your works ends up being posted somewhere on the internet without your permission.
The types of calls we get as copyright attorneys are from authors who, for instance, write books. And then their books, in whole or in part, are published somewhere without their permission. Or artists, an artist who produces a painting or a mural or a sketch or some sort of sculpture, they capture that and, of course, if someone uses it without permission, then we get a call. Musicians. Musicians create music and sometimes that music is being used attached to a YouTube video or being used on a website without permission.
One of the big things that we, of course, hear about in our law practice is from bloggers who have their content being scrapped and republished on other sites. So when a blogger, an author who is a blogger, posts on their website a two or three paragraph diatribe on x, y or z, that blog post is copyright protected, potentially. So, no one can use that without permission, of course, there’s the fair-use defense, but we get those calls all the time.
So that really kind of brings us to, you know, we understand what a copyright is, but the number one question that lawyers and attorneys get is how do they protect their copyright from infringement, especially infringement on the internet? Brian, as a copyright attorney, what kind of tips do you usually give on this issue?
Brian A. Hall: That’s a great question, Enrico, and I think we need to first start with what is copyright infringement, right? And we get these calls all the time with people who think that copyright infringement has occurred but don’t really know what the elements are. And it’s pretty straightforward.
In order to show that copyright infringement has occurred, you need to show that you own a valid copyright, that there has been copying and that there are elements that have been copied that have been protected by you.
So, if you think about the tips that you would give to somebody in order to avoid copyright infringement, it all comes down to protection. You need to protect your blogs, your website content, your images, all those types of things. And the best way to do it is by, first, registering your copyright.
While you can have what’s known as common law copyright rights, the most critical rights to have and the most powerful are through a copyright registration with the U.S. Copyright Office. This will give you the best remedies in any case of infringement.
There are other things you can do after you have registered your copyright. You can educate and warn other users about your copyrights, and show that you will take serious efforts to protect them by simply identifying your copyrights. Using the small © symbol next to it on your blog, for example. Putting it at the bottom in your footer on your website. Whatever it might be. It’s important to let people know that you are claiming exclusive rights to your copyright, be it an artistic work, a sculpture, a content of your blog, whatever it might be. So, putting that notice out there is critical.
Enrico Schaefer: That’s really interesting, Brian, because it’s so easy to cut and paste anything on the internet, right? So, as an internet law attorney, we tend to see these copyright infringement issues arising in the context of the World Wide Web.
What happens is an artist all suddenly sees their artistic rendition showing up on a website as an image or in the Google image search, and they’re thinking, wait a minute, now, what do I do about that?
On the one hand, they want to get and show their work on Facebook or online, but on the other hand, they have to realize that when they do that, the cut and paste nature of the internet allows someone to do a screen capture or simply right-click save as, and all of sudden their work is being run around the internet at full speed.
There are - and what we tell folks out there - software technologies out there that allow you to embed a code into an image so that you can track it and see where it’s being posted online. This really becomes critical, otherwise you might not know that someone is using your copyright without a license. It is the fundamental nature of the internet, which is driving the copyright infringement problem, and as an internet law attorney, I see it all the time. You see it all the time.
Protection really becomes the key, doesn’t it Brian? Because if you get your copyrights all lined up, but you don’t know what’s happening with your copyright protected works, you haven’t really moved the ball.
Brian A. Hall: That’s exactly right, Enrico. And it really goes both ways because it’s critical to use these services that might be out there to identify when copying might have occurred. However, then there’s stuff that you need to do after you’ve made that identification, like sending takedown requests or cease and desist letters. Simply knowing that copying is occurring does not allow you to protect your rights and enforce them. You have to do more than that.
Enrico Schaefer: Our internet law attorneys send a lot of infringement threat letters, don’t they?
Brian A. Hall: Yeah, all the time, it’s critical.
Enrico Schaefer: Brian, one of the questions we always get is: Do I have to register my copyright with the U.S. Copyright Office in order to protect it? It’s a very common question, and it’s a critical question that many clients and prospective clients simply don’t understand. Explain this one to us.
Brian A. Hall: The short answer, Enrico, is no. You do not have to register your copyright with the U.S. Copyright Office. That being said, you should. It’s simple. It’s straightforward. It’s relatively inexpensive, and it doesn’t take very long.
And once you make that registration, you get what I like to say are all the super benefits that go along with it. The most important being notice that you have, indeed, claimed rights and exclusive rights to your copyright.
And equally important, you get what I call a big stick, Enrico, and really what that means is when you are sending the cease and desist letters that we talked about as being so critical. You can put in there that you do have a statutory right to damages with amounts ranging from $30,000.00 all the way up to $150,000.00 for willful copyright infringement.
So, your failure to register your copyright essentially leaves you with the burden of proving what your damages are. And Enrico, you and I both know, and we hear it all the time, if a blogger sits down and writes a single post on their website and somebody scraps and re-posts it, it’s going to be relatively difficult to establish what those damages are. However, if you have registered your blog and do so regularly, to have your statutory copyright protection, you have a much better chance of getting either the ISP that’s displaying that content to take it down, or the author that actually copied it to go and take it down.
So, do you have to register? The short answer, again, is no. But should you? Absolutely, Enrico.
Enrico Schaefer: Yes, and of course, we had a relatively recent U.S. Supreme Court Ruling, which essentially says that in order for a federal court to have jurisdiction over a copyright claim, you have to be registered. So, if you are in the unfortunate position of having to file a copyright infringement lawsuit under the copyright act, you have to be registered in order to even be able to step into court, and that’s a big-ticket item.
Brian A. Hall: That’s a huge item, and it goes back to what we were saying earlier. It is one thing to know that copying is occurring, but if you’re not going to do anything about it, or you can’t do anything about it because you haven’t registered your copyright, and therefore, can’t file a lawsuit in federal court, there’s really not much you’re doing.
Enrico Schaefer: If I’m a client, an author, an artist, a musician, a blogger or in the media, and I’ve got an original work that I want to protect by way of copyright, and I come to an internet law firm like Traverse Legal to talk with a copyright attorney such as yourself, what kinds of things are you going to tell me? What kind of things are you going to do for me to help protect my copyright?
Brian A. Hall: Let me simplify it, Enrico, with three things (1) secure; (2) monitor; and (3) protect. And what I mean by that is the first thing you need to do, and we just talked about it, is get your copyright registered with the U.S. Copyright Office. There’s no reason not to, and there are cost-effective ways to do so. We get a lot of clients that contact us and say: Look! I’m coming up with original works daily in magnitudes of tens or hundreds. It’s going to be cost-prohibitive for me to register every single copyright. Well, fortunately, the Copyright Office allows for filings that combine them into one, and there are implications that occur as a result of doing that, but there are options, and you should register your copyright.
Enrico Schaefer: That’s great stuff, Brian. The registration thing keeps coming back up, and it is really important, but you’re right. There’s this practical issue of volume. Sometimes, you’ve got new works coming all the time and on occasion for clients who are on a tight budget, we’ll handle the first copyright registration or so. And then we’ll help them understand how they can then take that template and use it with the same type of work moving forward so that they can file for themselves because there isn’t a big fee at the copyright office and we can help them get their copyrights protected and registered by helping them understand the copyright registration process.
Brian A. Hall: That’s a great point. I’d say the value of copyright attorney isn’t in helping them secure a copyright registration. It really comes in those next two things that I had mentioned, which are the monitoring and the protection. And there are things that a copyright should be educating and doing on behalf of a copyright owner. And those things include drafting contracts that properly deal with ownership issues related to those copyrighted works. For example, in the employment context, there should be language within the employment agreement that says who owns the copyright and how it may or may not be used. Similarly, in independent contractor agreements there should be what’s known as work for hire language. And that’s specific language that’s required in order to secure and maintain your copyright rights.
So, drafting the proper language and putting them into agreements that are used on a daily basis is really where a copyright attorney makes his money so to speak. Also, if you look at when it comes time to actually protect and enforce, those copyright cease and desist letters are really critical.
There’s two kinds of cease and desist letters out there. There’s your boilerplate letter stating that we know you’re doing this, we see that you’ve copied, and we’re now demanding that you stop. That’s one way to do it, but what Traverse Legal often does is dig in a little bit deeper and find the cases that are on point in federal court and identify specific instances that are similar to your particular copied situation and really set forth their risk of liability, both monetary and from a legal standpoint, and make the specific request and demands necessary to preserve your copyright rights.
Enrico Schaefer: That’s good stuff. Well, Brian, that’s all we have time for today on Copyright Law Radio. Thanks for joining me, and we’ll see you next time.
Brian A. Hall: Thanks, Enrico.