Copyright Worksop

Copyright WorkshopCopyright Workshop
InterUrban ArtHouseInterUrban ArtHouse
Donald R. Simon,Donald R. Simon, J.D./LL.MJ.D./LL.M

Me:Me:
– 10 years of legal experience10 years of legal experience
concentrating in the areas ofconcentrating in the areas of
entertainment and IP.entertainment and IP.
– 9 years of experience9 years of experience
teaching legal and businessteaching legal and business
issues to aspiring artists.issues to aspiring artists.

Me:Me:
– Teaching legal and business courses atTeaching legal and business courses at
The Art Institutes Int’l - Kansas City.The Art Institutes Int’l - Kansas City.
– Sr. Procurement AnalystSr. Procurement Analyst,, ITIT, YRC, YRC
Worldwide, Inc.Worldwide, Inc.
– Board MemberBoard Member, KCVLAA, KCVLAA
– OwnerOwner, Simon Business Consulting, Inc., Simon Business Consulting, Inc.

Mark TwainMark Twain
““Only one thing is impossible for God: toOnly one thing is impossible for God: to
find any sense in any copyright lawfind any sense in any copyright law
on the planet.”on the planet.”
• Mark Twain’s NotebookMark Twain’s Notebook, 1902-1903, 1902-1903

CopyrightCopyright::
– Part of an overall area of law known asPart of an overall area of law known as
“intellectual property:” original works“intellectual property:” original works
created as a result of intellectual activities.created as a result of intellectual activities.
IntellectualIntellectual
PropertyProperty
CopyrightsCopyrights TrademarksTrademarksPatentsPatents

– Copyright (“CR”): exclusive right ofCopyright (“CR”): exclusive right of
control over literary or artistic creations.control over literary or artistic creations.
– Primary purpose of CR is to give creatorsPrimary purpose of CR is to give creators
economic incentive so that society willeconomic incentive so that society will
benefit from creative production.benefit from creative production.

– CR protects an author’s mannerCR protects an author’s manner
expression as opposed to the author’sexpression as opposed to the author’s
ideas (“idea/expression dichotomy”).ideas (“idea/expression dichotomy”).
– No particular degree of literary or artistNo particular degree of literary or artist
merit is required—just some expressivemerit is required—just some expressive
effort.effort.

– CR lawCR law does notdoes not protect facts, names,protect facts, names,
titles, or short phrases.titles, or short phrases.
• These may be protected under trademark law.These may be protected under trademark law.
– Think of CR as a “bundle of rights.”Think of CR as a “bundle of rights.”

– Specifically mentioned in Art. I, §8, cl. 8Specifically mentioned in Art. I, §8, cl. 8
of the U.S. Constitution.of the U.S. Constitution.
– CR law is a matter of federal jurisdiction.CR law is a matter of federal jurisdiction.
– All works created after March 1, 1978 areAll works created after March 1, 1978 are
under the protection of theunder the protection of the Copyright ActCopyright Act
of 1976of 1976, as amended., as amended.

– Elements of a Valid CRElements of a Valid CR::
““Original work of authorship that is fixed in aOriginal work of authorship that is fixed in a
tangible medium of expression.”tangible medium of expression.”
1.1. OriginalityOriginality::
• The author created the work.The author created the work.
• Not simply a reproduction of existing material.Not simply a reproduction of existing material.
• No requirement that work be novel or distinctive, justNo requirement that work be novel or distinctive, just
originaloriginal..

2.2. Works of AuthorshipWorks of Authorship::
• literary works;literary works;
• musical works, including any words;musical works, including any words;
• dramatic works, including any music;dramatic works, including any music;
• pantomimes and choreographic works;pantomimes and choreographic works;

2.2. Works of AuthorshipWorks of Authorship (con’t):(con’t):
• pictorial, graphic, and sculptural works;pictorial, graphic, and sculptural works;
• motion pictures;motion pictures;
• sound recordings; andsound recordings; and
• architectural works.architectural works.

3.3. FixationFixation::
• Work must embodied on paper, canvas, film, tape,Work must embodied on paper, canvas, film, tape,
computer disk, or other medium such that the workcomputer disk, or other medium such that the work
can be reproduced.can be reproduced.
• CR law does not protect sounds or images of purelyCR law does not protect sounds or images of purely
transitory in duration, such as a live broadcast.transitory in duration, such as a live broadcast.

• No registration or notice requirements to have a validNo registration or notice requirements to have a valid
CR, but are significant for other reasons.CR, but are significant for other reasons.
• CR protection beginsCR protection begins at the moment of creationat the moment of creation..
• Remember that CR ownership is entirely distinct fromRemember that CR ownership is entirely distinct from
ownership of the physical object that embodies the CR.ownership of the physical object that embodies the CR.

• CR owners are affordedCR owners are afforded virtual monopoliesvirtual monopolies
over their protected works of expression:over their protected works of expression:
1.1. ToTo reproducereproduce the work in copies;the work in copies;
2.2. ToTo prepare derivative worksprepare derivative works;;
3.3. ToTo distributedistribute copies;copies;
4.4. ToTo performperform the work publicly; andthe work publicly; and
5.5. ToTo displaydisplay the work publicly.the work publicly.
The “bundle
The “bundle
of rights!”
of rights!”

– Duration of a CRDuration of a CR::
• The general period of CR protection of worksThe general period of CR protection of works
createdcreated afterafter March 1, 1978March 1, 1978 is:is:
– Lifetime of the author, plus 70 years (Sonny BonoLifetime of the author, plus 70 years (Sonny Bono
CR Extension Act); orCR Extension Act); or
– Works-made-for-hireWorks-made-for-hire: 95 years from the year of first: 95 years from the year of first
publication or 120 years from the year of creation,publication or 120 years from the year of creation,
whichever occurs first.whichever occurs first.

– Duration of a CRDuration of a CR::
• When applicable period ends, the work fallsWhen applicable period ends, the work falls
into theinto the public domainpublic domain forever.forever.

– Registration of a CRRegistration of a CR::
• Though no longer required, a CR may beThough no longer required, a CR may be
registered with the CR Office at any time.registered with the CR Office at any time.
• Registration is obtained by sending to the CRRegistration is obtained by sending to the CR
Office the following items:Office the following items:
1.1. A completed registration form.A completed registration form.
2.2. Filing fee of $35 (online) or $65 (paper).Filing fee of $35 (online) or $65 (paper).
3.3. A nonreturnable deposit(s) of the work.A nonreturnable deposit(s) of the work.

• The CR Office briefly examines eachThe CR Office briefly examines each
application to determine that all requestedapplication to determine that all requested
information has been provided and that theinformation has been provided and that the
material is of a CRable nature.material is of a CRable nature.
• A certificate of registration is then issued.A certificate of registration is then issued.

YouYou: “What about ‘the poor: “What about ‘the poor
man’s copyright’? Can’t I justman’s copyright’? Can’t I just
mail material to myself and savemail material to myself and save
a few bucks?”a few bucks?”
SimonSimon: “Sure. It will at least give: “Sure. It will at least give
you a creation date. Remember:you a creation date. Remember:
protection begins at the momentprotection begins at the moment
of creation. There are otherof creation. There are other
benefits of registration…”benefits of registration…”

• Establishes a public record of the CR claim.Establishes a public record of the CR claim.
• Serves as court evidence of the validity of CRServes as court evidence of the validity of CR
ownership.ownership.
• Is necessary before the CR owner may file anIs necessary before the CR owner may file an
infringement suit in court.infringement suit in court.

– CR NoticeCR Notice::
• A CR noticeA CR notice maymay be placed on all publiclybe placed on all publicly
distributed copies of protected works.distributed copies of protected works.
• Should appear in a position where the publicShould appear in a position where the public
would reasonable look for it.would reasonable look for it.
1.1. ““Copyright,” or the symbol ©.Copyright,” or the symbol ©.
2.2. Year of first publication.Year of first publication.
3.3. Name of the CR owner.Name of the CR owner.

– Works-Made-For-HireWorks-Made-For-Hire

– Works-Made-For-HireWorks-Made-For-Hire::
• Generally speaking, when someone creates aGenerally speaking, when someone creates a
work, they immediately become the originalwork, they immediately become the original
owner of the CR.owner of the CR.
• When the work is created at the request ofWhen the work is created at the request of
someone else (e.g., an employer), however,someone else (e.g., an employer), however,
ownership may belong to the employer ratherownership may belong to the employer rather
than to the actual creator of the work.than to the actual creator of the work.

• E.g.E.g.::
– Commercial produced for air by a radio stationCommercial produced for air by a radio station
employee.employee.
– Story written by a reporter employed by aStory written by a reporter employed by a
newspaper.newspaper.
– Design of a magazine layout by a full-time graphicDesign of a magazine layout by a full-time graphic
artist.artist.

• Key legal questionKey legal question: whether the creator was: whether the creator was
acting as an employee or independentacting as an employee or independent
contactor (“I/C”) of the buyer.contactor (“I/C”) of the buyer.
• If the work was created within the creator’sIf the work was created within the creator’s
“scope of employment,” the material is“scope of employment,” the material is
considered a work-made-for-hire, andconsidered a work-made-for-hire, and
ownership vestsownership vests automaticallyautomatically with thewith the
employer.employer.

• Trouble arises occasionally with the use ofTrouble arises occasionally with the use of
I/Cs—a common practice in the creative artsI/Cs—a common practice in the creative arts
industry.industry.
• OwnershipOwnership does notdoes not automatically vest withautomatically vest with
the employer.the employer.

• I/C CR issues can be handled easily by theI/C CR issues can be handled easily by the
following clause in an engagement of servicesfollowing clause in an engagement of services
agreement:agreement:
““Contractor understands and agrees that Contractor’s servicesContractor understands and agrees that Contractor’s services
under the terms and conditions of this Agreement are to beunder the terms and conditions of this Agreement are to be
construed as “works-made-for-hire” as defined by §101 of theconstrued as “works-made-for-hire” as defined by §101 of the
Copyright Act.”Copyright Act.”

– CR InfringementCR Infringement

– CR InfringementCR Infringement::
2.2. To prepareTo prepare derivative worksderivative works;;
The “bundle
The “bundle
of rights!”
of rights!”

• CR infringement occurs when one or more ofCR infringement occurs when one or more of
thosethose virtual monopoliesvirtual monopolies are violated.are violated.
• Imitation may be the sincerest form ofImitation may be the sincerest form of
flattery, but it may also beflattery, but it may also be CR infringementCR infringement..

• To prove infringement, CR owner must show:To prove infringement, CR owner must show:
1.1. They have a valid CR interest; andThey have a valid CR interest; and
2.2. Substantial, unauthorized copying, directly from theSubstantial, unauthorized copying, directly from the
protected work.protected work.
• Easy to prove when exact reproduction hasEasy to prove when exact reproduction has
occurred.occurred.

• Commonly, lawsuits involve some alteration. InCommonly, lawsuits involve some alteration. In
such cases, CR owners must prove:such cases, CR owners must prove:
1.1. They have a valid CR interest;They have a valid CR interest;
2.2. Substantial similarity; andSubstantial similarity; and
3.3. Access to the protected work prior to the allegedAccess to the protected work prior to the alleged
infringement.infringement.

• Juries must distinguish between similarity inJuries must distinguish between similarity in
facts or ideas and similarity in expression.facts or ideas and similarity in expression.

• Onus on the CR owner to enforce CRs.Onus on the CR owner to enforce CRs.
• CR owner may sue infringer for either:CR owner may sue infringer for either:
1.1. Actual damagesActual damages: equal to the amount owner lost as a: equal to the amount owner lost as a
result of the infringement.result of the infringement.
2.2. Statutory damagesStatutory damages::
• Awarded when owner’s actual loss, or infringer’sAwarded when owner’s actual loss, or infringer’s
profits are hard to determine.profits are hard to determine.
• Range from $500 to $100K per work infringed.Range from $500 to $100K per work infringed.

YouYou: “Litigation is a money-,: “Litigation is a money-,
energy-, and time-depletingenergy-, and time-depleting
process. Is there anything I canprocess. Is there anything I can
do before filing a lawsuit?”do before filing a lawsuit?”
SimonSimon: “Of course! There are: “Of course! There are
always things you can do beforealways things you can do before
going to court.”going to court.”

• Before getting lawyers involved, it is alwaysBefore getting lawyers involved, it is always
best to try to work out a dispute directly withbest to try to work out a dispute directly with
the other party.the other party.
• This might involve educating them on certainThis might involve educating them on certain
aspects of (U.S.) copyright law.aspects of (U.S.) copyright law.

• Try to hammer out a licensing deal or someTry to hammer out a licensing deal or some
other arrangement.other arrangement.
• Or persuade them to stop.Or persuade them to stop.
• If these efforts fail, then and only then shouldIf these efforts fail, then and only then should
you consider litigation.you consider litigation.

• ““Think of an infringer as a potential businessThink of an infringer as a potential business
partner with whom you have not met.”partner with whom you have not met.”
~~ Rebecca Stroder,~~ Rebecca Stroder, AttorneyAttorney

– Fair Use DoctrineFair Use Doctrine

– Fair Use DoctrineFair Use Doctrine::
2.2. To prepareTo prepare derivative worksderivative works;;
The “bundle
The “bundle
of rights!”
of rights!”

• A major, butA major, but very narrowvery narrow, exception to CR, exception to CR
monopoly protection.monopoly protection.
• Gives people other than the CR ownerGives people other than the CR owner aa
limited privilegelimited privilege of using CRed work w/oof using CRed work w/o
owner’s consent and w/o paying a royalty.owner’s consent and w/o paying a royalty.

• Limited usually to criticism, comment,Limited usually to criticism, comment,
parody, news reporting, teaching,parody, news reporting, teaching,
scholarship, or research.scholarship, or research.
• Assessed byAssessed by courtscourts on a case-by-caseon a case-by-case
determination guided by four factors.determination guided by four factors.

1.1. Purpose and character of the use, includingPurpose and character of the use, including
whether such use is of awhether such use is of a commercial naturecommercial nature oror
is foris for non-profit educational purposesnon-profit educational purposes..
– Does use serve some productive, publicly beneficialDoes use serve some productive, publicly beneficial
purpose, such as news reporting or teaching?purpose, such as news reporting or teaching?
– Is use solely for entertainment purposes?Is use solely for entertainment purposes?
– Is character of use predominantly commercial?Is character of use predominantly commercial?

2.2. Nature of the CRed work.Nature of the CRed work.
– Is the CRed work published or unpublished? Not-yet-Is the CRed work published or unpublished? Not-yet-
published works are considered deserving of greaterpublished works are considered deserving of greater
protection.protection.
– Is the CRed primarily factual or fictional? FactualIs the CRed primarily factual or fictional? Factual
works, such as news stories, are more susceptible toworks, such as news stories, are more susceptible to
fair use.fair use.
– Is the work out-of-print and no longer available? IfIs the work out-of-print and no longer available? If
so, copying is more likely to be fair use.so, copying is more likely to be fair use.

3.3. Amount and substantiality of the portion usedAmount and substantiality of the portion used
in relation to the CRed work as a whole.in relation to the CRed work as a whole.
– Quantity vs. quality of the portion used.Quantity vs. quality of the portion used.
– The smaller the amount used, the more likely it will beThe smaller the amount used, the more likely it will be
a fair use.a fair use.
– Even if a small percentage, may weigh against fairEven if a small percentage, may weigh against fair
use if the copied portions were the most important,use if the copied portions were the most important,
most marketable elements of the CRed work.most marketable elements of the CRed work.

4.4. Effect of the use upon the potential market forEffect of the use upon the potential market for
or value of the CRed work.or value of the CRed work.
– If use has significantly usurped a portion of theIf use has significantly usurped a portion of the
market for the CR, fair use will not be found.market for the CR, fair use will not be found.
– Courts tend to consider the first and fourth factors toCourts tend to consider the first and fourth factors to
be important.be important.
– And the fourth to the be the single most importantAnd the fourth to the be the single most important
criterion for determining fair use.criterion for determining fair use.

• Two courts looking at the same material, theTwo courts looking at the same material, the
same statutes, and the same case law cansame statutes, and the same case law can
come to two completely different conclusions.come to two completely different conclusions.

YouYou: “What about things I’ve: “What about things I’ve
heard for years like the ‘8-Barheard for years like the ‘8-Bar
Rule’?”Rule’?”
SimonSimon: “Lots of misconceptions: “Lots of misconceptions
about Fair Use. Unfortunately,about Fair Use. Unfortunately,
the only place to make thesethe only place to make these
arguments is in a court room!”arguments is in a court room!”

– Common Fair Use Myths:Common Fair Use Myths:
• ““I can use CRed music so long as it comesI can use CRed music so long as it comes
within the ‘8-bar rule.’”within the ‘8-bar rule.’”
– Many are under the mistaken impression that a smallMany are under the mistaken impression that a small
portion of a CRed work may be used withoutportion of a CRed work may be used without
obtaining a license.obtaining a license.
– They claim: “I can use X number of bars for free.”They claim: “I can use X number of bars for free.”
– Any part of CR music reproduced in a productionAny part of CR music reproduced in a production
must be licensed (some exceptions for parody).must be licensed (some exceptions for parody).

• ““Well, it’s free advertisement for the CRWell, it’s free advertisement for the CR
owner.”owner.”
– One of the exclusive rights afforded a CR owner isOne of the exclusive rights afforded a CR owner is
the right to reproduce and authorize a reproductionthe right to reproduce and authorize a reproduction
of a CRed work.of a CRed work.
– In other words, any CR owner has a right to controlIn other words, any CR owner has a right to control
so-called “free advertisement.”so-called “free advertisement.”

• ““I can use CRed work in an ad for a school orI can use CRed work in an ad for a school or
church without first obtaining a license.”church without first obtaining a license.”
– It makes no difference whether the organization isIt makes no difference whether the organization is
non-profit, educational, or a charity, if any CRednon-profit, educational, or a charity, if any CRed
music is going to be used, it must be properlymusic is going to be used, it must be properly
licensed for that purpose.licensed for that purpose.

• ““I own a copy of the _______, I can do whateverI own a copy of the _______, I can do whatever
I want with it, right?”I want with it, right?”
– It is important to remember that CR ownership isIt is important to remember that CR ownership is
entirely distinct from ownership of the physicalentirely distinct from ownership of the physical
object that embodies the CR.object that embodies the CR.
– Ownership of a photo, piece of art, sculpture, CD, orOwnership of a photo, piece of art, sculpture, CD, or
DVD, for example, does not grant full rights to theDVD, for example, does not grant full rights to the
CRs therein.CRs therein.

• ““If I don’t charge for it, it’s not a violation.”If I don’t charge for it, it’s not a violation.”
– It’s still a violation if you give it away -- and there canIt’s still a violation if you give it away -- and there can
still be serious damages if you hurt the commercialstill be serious damages if you hurt the commercial
value of the property.value of the property.

Protecting Your WorksProtecting Your Works::

YouYou: “Beside registering my: “Beside registering my
copyrights, what else can I do tocopyrights, what else can I do to
protect my works?”protect my works?”
SimonSimon: “There are numerous: “There are numerous
common sense ways to protectcommon sense ways to protect
your work depending on the typeyour work depending on the type
of work it is.”of work it is.”

– For photogs and sketch artists:For photogs and sketch artists:
• Watermark or emboss your photos or images.Watermark or emboss your photos or images.
Use some kind of easily identifiable mark,Use some kind of easily identifiable mark,
such as your name along with the © symbol.such as your name along with the © symbol.
• Post small, low-res photos or images. ThesePost small, low-res photos or images. These
are much harder to copy.are much harder to copy.

– For photogs and sketch artists:For photogs and sketch artists:
• ““Shrinkwrap” your images and photos.Shrinkwrap” your images and photos.
– Adding a clear filter layer over the work. Visitors canAdding a clear filter layer over the work. Visitors can
still see the image but it cannot be so easily copied.still see the image but it cannot be so easily copied.

– For writers:For writers:
• Don’t send out entire manuscripts unsolicited.Don’t send out entire manuscripts unsolicited.
• Be careful not to reveal too much in queryBe careful not to reveal too much in query
letters or story treatments.letters or story treatments.
• Register your work with theRegister your work with the Writers GuildWriters Guild..

– For musicians:For musicians:
• Don’t post entire songs. Instead postDon’t post entire songs. Instead post
“medleys” showcasing the depth of you talent.“medleys” showcasing the depth of you talent.
• Or post lo-fi song clips.Or post lo-fi song clips.
• Do not send out hi-fi complete songs toDo not send out hi-fi complete songs to
anyoneanyone unsolicitedunsolicited..

– For jewelry designers:For jewelry designers:
• Continually create and promote new designs.Continually create and promote new designs.

– For jewelry designers:For jewelry designers:
• Use unique or hard-to-find supplies that makeUse unique or hard-to-find supplies that make
their work difficult to copy.their work difficult to copy.
• Constantly learn new techniques to incorporateConstantly learn new techniques to incorporate
into your work.into your work.
• Create designs that require specialized tools orCreate designs that require specialized tools or
equipment.equipment.

– KCVLAA is nonprofit, 501(c)(3) legalKCVLAA is nonprofit, 501(c)(3) legal
organization.organization.
– Provides legal and accounting assistanceProvides legal and accounting assistance
to qualifying artists and arts organizationsto qualifying artists and arts organizations
from all creative disciplines.from all creative disciplines.

– Our “ArtSmarts” program providesOur “ArtSmarts” program provides
seminars in arts law to help artists avoidseminars in arts law to help artists avoid
common pitfalls in their professional artscommon pitfalls in their professional arts
careers.careers.
• Ask the ExpertsAsk the Experts
• Musician and Filmmaker Legal BootcampsMusician and Filmmaker Legal Bootcamps
• For more information:For more information: KCVLAA.orgKCVLAA.org..

Victor HugoVictor Hugo
““All the forces in the world are not soAll the forces in the world are not so
powerful as an idea whose time haspowerful as an idea whose time has
come.”come.”
• Histoire d’un CrimeHistoire d’un Crime, 1877, 1877

Contact Me:Contact Me:
• PhonePhone: 816.728.6948: 816.728.6948
• EmailEmail:: don@simonbizconsulting.comdon@simonbizconsulting.com
• TwitterTwitter: @simonbizconsult: @simonbizconsult
• WebWeb:: simonbizconsulting.comsimonbizconsulting.com
THANK YOU!THANK YOU! 

Attention:Attention:
This presentation is provided as aThis presentation is provided as a
source of information and is not to besource of information and is not to be
construed as legal advice or opinion,construed as legal advice or opinion,
or to form an attorney-clientor to form an attorney-client
relationship.relationship.
For legal advice, please consult anFor legal advice, please consult an
attorney.attorney.

Copyright Worksop

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