Copyright apa presentation v8

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Next Step Copyright Infringement …

Next Step Copyright Infringement
Presentation to the American Photographers Association
Washington DC

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  • Is it “…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”?If a new work incorporates the copyrighted image it may be a “transformative work” usually ONLY if it no longer resembles the original. If only a thumbnail links to the original image, or only a tiny part of an image is used – there may be a fair use argument.
  • eCO:add’l cost savings re not making prints; also earlier filing date and delays with paper deposits due to security screeningWhy deposit? Building library of congress, also evidenceTIP: keep a copy of everything submitted as a record—high cost to retrieveBest Edition: larger not smaller, color not B&W, archival quality paper not cheap paper
  • Published? Distribution or offer of distribution of copies of the work to the public by sale or other transfer; NOT public display or online transmissionUpload: 60 min timeout – about 220 5MP low compression JPGs if high-speed internet
  • Metadata: Photoshop/Lightroom/Aperture: File>File Info (or similar); also camera settingsAdditional Penalties: actual damages or additional statutory damages of $2,500 to $25,000 per violation
  • What is “DMCA”Extra penalties: $200 to $2500 per act of circumventionPractical Example: Victor Stanley case: username enabled tracking of validated email address and user IP address; potential auto-marking/metadata per download to track
  • Third party sites: takedowns less effective if infringer runs the sitePotential risk: Lenz case (Stephanie Lenz’ son) —bad faith if obvious fair use
  • Extra-judicial: must be issued by clerk of court
  • Extra-judicial: must be issued by clerk of court
  • Extra-judicial: must be issued by clerk of court
  • Extra-judicial: must be issued by clerk of court
  • Extra-judicial: must be issued by clerk of court
  • Extra-judicial: must be issued by clerk of court
  • Extra-judicial: must be issued by clerk of court

Transcript

  • 1. An Exclusive Presentation for APA | DC by
  • 2. Exceptionally innovative copyright lawyers whoCARRY A BIG STICK. AV-Rated Firm based in Metro DC Area (three area offices) Lawyers admitted in VA, DC, MD, DE, NY, NJ, FL, WV, NE, PA . . . Focused on IP prosecution & protection, business law &litigation Helped copyright holders pursue more than 100,000 infringerswww.DunlapWeaver.com
  • 3. Your PresentersTom Dunlap (JD/MBA/MS) - IP & Commercial Litigation/Aviation“100 Most Powerful Lawyers in Entertainment Law” by HollywoodReporter (2010)  Co-Chaired ABAs Copyright Lit. Subcommittee Washington SuperLawyers  Virginia Legal & Business EliteDavid Ludwig (JD/MA) - IP Litigation & Prosecution Law Professor at GWU  Past Editor of American Intellectual PropertyLaw Association Journal  AVVO ® “Superb” RatedJeffrey W. Weaver (JD/MBA) – Corporate Law & IP ProsecutionAV® Preeminent™ Rated  AVVO ® “Superb” Rated  VirginiaSuperLawyers  Widely despised by copyright infringers in FL
  • 4. First Take-AwayThis presentation and its contents are protected by copyright andmay not be copied, reproduced, displayed or posted in any formor by any means without the prior written consent ofDunlapWeaver, PLLC.• This presentation is NOT legal advice or legal representation.• This presentation sets out general concepts and some of thebasics of copyright law as it relates to business.• Anyone determining that they need legal advice orrepresentation should seek counsel and advice from anattorney or law firm.
  • 5. Presentation Overview1. What is a Copyright? (Tom)2. Filing a Copyright Registration (David)3. The Value of Copyrighting your Work (Tom)4. Unique Issues in the Digital Realm (David)5. Combating Image Theft (Tom)6. Copyright and Government Works (David)7. Copyright Infringement Case Studies-Examples &Results (Jeff)8. Q&A (All)
  • 6. 1. What is a Copyright? Basis for copyright What can be copyrighted Differences from trademark & patent Duration of copyright and the benefits of registration Common misconceptions about copyright and fair use
  • 7. The Basis for Copyright - The Laws … Constitution of the United States The Copyright Act of 1976 Sonny Bono Copyright Term Extension Act of 1998 Digital Millennium Copyright Act (DMCA) Federal Trademark Dilution Act of 1995
  • 8. What and How. What is copyright? Original works of authorship that are fixed in anytangible medium of expression. (Title 17, § 102 &103) NOT brand or ideas How to secure copyrights? Automatic on creation (Berne Convention) orregistration with U.S.C.O. (more on this later)
  • 9. Understanding IP AssetsPatent® TM SMTrade Secrets©systems, processes, discoveries,etc. - Stronger protection - 14 to20 years - Must research history- New, obvious and useful -Requires registration - Patentattorneys (Patent Bar) -Generally Expensivewords, slogans, phrases, logos, symbols, etc. that identify products inthe marketplace - Unlimited time - Established through actual use orregistration - “Likelihood of confusion” - Cyber squatting, DilutionMay be registered with State and/or Federal
  • 10. Exclusive Rights & Term Exclusive Rights of Owner Reproduce or make copies of the original work. Prepare derivative works. Sell or distribute the work. Perform or display the work. Term Life of author + 70 years Work-for-hire = publication + 95 years or creation+ 120.
  • 11. Limitations Fair use for criticism, comment, newsreporting, teaching, scholarship, or research (Title 17, §106): purpose and character nature amount used effect of the use Parody (excluding satire) De minimis use U.S. government works Computer software backup
  • 12. Fair Use Fair use = permitted infringement NOTE– attribution has nothing to do with FairUse of copyright!Three step basic fair use analysis:1. Why is the image being used? Has the imagebeen transformed?2. How much of the image is used?3. What is the effect of the use upon the potentialmarket for or value of the copyrighted work?
  • 13. 2. Filing a Copyright Registration Mechanics Cost Processing Times Compilation Copyrights: A Photographer’s Shortcut
  • 14. The Copyright Application Form VA for photos ($65) Or, save time and $$ with eCO! ($35) Deposit Copy: Why? How? 2 Copies of “Best Edition” Processing Times: 9-18 Months Expedite if pending pro probable litigation or other good cause ($795)
  • 15. Registering Compilations of Photos Form GR/PPh/CON or eCO Rules: Must separate published from unpublished photos All the photos published in the same calendar year (if published) All photos by same photographer All the photographs have the same copyright claimant (if by employee) 750 photos max Deposit Copies: File formats: .bmp, .gif, .jpg, .psd, .tif, etc. (but no .raw) Upload or burn & mail Pros and Cons of Compilation Registrations
  • 16. 3. The Value of Copyrighting your Work What constitutes infringement-sliding scale Statutory Damages Attorneys’ Fees & costs
  • 17. Infringement = Theft A valid copyright is an original work independently createdwith a modicum of creativity fixed in atangible means of expression. It is infringed when work isreproduced, distributed, performed, publicly displayed, or made into a derivativework without the permission of thecopyright owner within the US©
  • 18. Infringement Breakdown Jurisdiction Federal courts ONLY Venue Where defendant is found or where infringing acts occur Infringement—show:1. Ownership of valid copyright.2. Copying of protected elements
  • 19. Special Notes No mens rea required Three year statute of limitations Indirect liability via contributory infringement vicarious infringement If no registration then injunctive relief and actual damages only
  • 20. Infringement Defenses Invalidity Independent creation Equitable defenses Misuse Abandonment Equitable estoppel Innocent intent Unclean hands
  • 21. Remedies Preliminary and permanent injunctions Irreparable harm is NOT presumed. Impoundment and destruction Actual damages Infringer’s profits Statutory (benefit of registration in advance) $750 to $30,000 per infringement; up to $150,000 for willful Attorney’s fees Customs seizures
  • 22. 4. Unique Issues in the Digital Realm Strategic Use of Copyright Management Information Prevent Infringement Before It Happens: Anti-Circumvention Protections Stopping Online Infringement with a DMCA TakedownNotice Unmasking Online Infringers with a Subpoena
  • 23. CMI: Copyright Management Information What Is It? © Copyright notice Author/owner name and/or contact information Terms and conditions for use of work How to Add It? Metadata or Watermark Why Do We Care? Liability at the point of distribution Extra penalties for altering/removing CMI or distributing works withremoved/altered CMI
  • 24. DMCA Anti-Circumvention Protections Illegal to circumvent “access control technologies” What? Password protection, copyprotection, encryption, etc. Why Do We Care? Liability at the point of distribution Potential identity tracking Extra penalties for circumvention Practical Example
  • 25. DMCA Takedown Notices Quick/cheap removal of infringing content from third partysites i.e., Facebook, Flickr, Pintrest, Tumblr, Wordpress, etc. Not a prerequisite to an infringement claim Benefits: Limits damages to avoid a lawsuit before it starts Limits potential re-dissemination Potential risk if used too aggressively
  • 26. DMCA Subpoena to Identify Infringer Allows access to contact information of infringer without a fulllawsuit Enables copyright owner to serve asettlement demand on an anonymous infringer Commonly served on ISPs, domain registrars, and third partywebsite owners Not completely extra-judicial, but much simpler than a lawsuit
  • 27. 5. Combating Image Theft Discovering online infringement How to fight image theft Contingency Representation
  • 28. Online Searching for Infringement Upload copyrighted images for comparison matching: Google “Search by Image” Firefox “Image Finder” Add-in Tineye.com Go to content relevant sites and conduct manual review ofimages.
  • 29. Fighting Back (Preventative Medicine) Notice on work Watermarking JavaScript code to prevent copy and paste Transparent graphics Flash website Hidden Seal/ Stamp Low res image use REGISTRATION & PURSUIT! See e.g. Getty Images. . .
  • 30. Contingency Representation It is your art. Get the best and brightest to protect it. Be wary of online vendors of copyright solutions - Only lawyers can filelawsuits for other people. Most of the other solutions are scams. Be careful when choosing a copyright lawyer. Your business lawyer mayknow what copyright means, but the law is complex . . . Want to know more about how we work?Stick around after and ask us – or email partners@dunlapweaver.com
  • 31. 6. Copyright and Government Works Created by government employee in scope of employment:No © Created by government contractor: Yes ©, but government hasa license But, any copyrights can be assigned or licensed togovernment, in which case the government does own thecopyright or a license to use it Copyright status not always clear or easy to discern
  • 32. 7. Copyright Infringement Case Studies-Examples& ResultsPLEASE WELCOME SPECIAL GUEST PANELIST:Former Chair of APA|DC Randy Santos is a photographer whose artistic vision and unique personal perspective onthe world around him has established him as one of the Washington DC area’s preeminent photographers.A native Washingtonian with over 30 years of photographic experience, Randy’s work reflects his passion and drivefor creative self-expression, a mastery of the medium of photography, and his love for the architectural beauty andhistory found in his hometown.Randy’s distinctive work is regularly featured in art installations, corporate and hospitalityenvironments, government facilities, and innumerable print and electronic media worldwide.In addition to being an artist, Randy is also a husband and father. Randy has established a business model thatenables him to make family life a priority while enjoying the aesthetic and personal fulfillment that his work brings.
  • 33. CASE STUDY # 1Alleged Culprit: Critical Messaging Association (CMA)Alleged Infringement: 4 photos taken from www.dcstockphotos.com and usedon CMA Website
  • 34. CASE STUDY # 1So……How did Randy discover this?
  • 35. CASE STUDY # 1What else did he find? Metadata makes great evidence!
  • 36. CASE STUDY # 1Case Analysis:Valid Copyright Registrations? 4 photos taken from 4 images under 2 Copyright Registrations Counts as two separate infringements – NOT 4 Need to confirm that compilation copyright registration validEvidence? Screen shots to preserve evidence & metadata to supportNEXT STEPS . . . ?(Hint: Try to make them pay for what they use)
  • 37. CASE STUDY # 2Alleged Culprit: Associated Press (AP)Victim: Freelance Photographer in NYC (“Joe”)Facts: 37 prized photos taken of the WTC on 9/11 Joe attempted to license 7 of them to AP for $250 Unsigned contract from AP; Invoice for $250 Joe Provided None of the photos were copyrighted initially AP Published other 30 photos of Joe in 2011 After discovering, Joe copyrighted other 30 as “unpublished” works
  • 38. CASE STUDY # 2Alleged Infringement: AP keeps using all 37 photos, recently publishing the 30Joe never meant to license or sellCase Analysis:First 7 AP bought?X Joe meant to license them but there was no copyright and his invoicedemonstrates an outright purchase of the 7 most valuable pics Should have had a better contract for the license of these imagesOther 30 pics AP used?Possibly. We are sure going to try!
  • 39. Questions & AnswersDunlapWeaver PLLC Randy Santosmail@dunlapweaver.com www.dcstockphotos.comwww.dunlapweaver.com