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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
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 ProsecutionAV® Preeminent™ Rated AVVO ® “Superb” Rated VirginiaSuperLawyers Widely despised by copyright infringers in FL
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.
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)
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
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
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)
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.
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
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?
2. Filing a Copyright Registration Mechanics Cost Processing Times Compilation Copyrights: A Photographer’s Shortcut
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)
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
3. The Value of Copyrighting your Work What constitutes infringement-sliding scale Statutory Damages Attorneys’ Fees & costs
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
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
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
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
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
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
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
5. Combating Image Theft Discovering online infringement How to fight image theft Contingency Representation
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.
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 firstname.lastname@example.org
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.
CASE STUDY # 1Alleged Culprit: Critical Messaging Association (CMA)Alleged Infringement: 4 photos taken from www.dcstockphotos.com and usedon CMA Website
CASE STUDY # 1So……How did Randy discover this?
CASE STUDY # 1What else did he find? Metadata makes great evidence!
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)
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
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!
Questions & AnswersDunlapWeaver PLLC Randy Santosmail@dunlapweaver.com www.dcstockphotos.comwww.dunlapweaver.com