Monday, April 27, 2009

Copyright Infringement on the Internet - How to Protect Your Original Work by Enrico Schaefer

Copyright infringement has been a steadily growing problem since the internet gained popularity back in the mid-1990's. Authors, musicians, artists, and the creators of other original works have struggled to monitor, identify and protect their copyrighted works from unlicensed third party usage and blatant intentional infringement.

While a copyright does not need to be registered with the United States Copyright Office in order to be protected, registration of your copyrights provides significant leverage over third party infringement. This includes penalty damages and the award of attorneys' fees in cases of intentional or bad faith infringement. The minute your original copyright protected work becomes available on the internet, it becomes extremely easy for someone to copy, publisher reproduce the work for their own purposes. This can be music rendered to an .MP3, web pages and articles, such as this one appearing here, and other works of authorship, artist renditions, including logos, graphics, and pictures.

The most challenging aspect of protecting your copyrights online is actually identifying unlicensed uses of your work. There are a variety of tactics which people use in order to identify infringers. Special software will mark your copyright protected images, audio or video files for tracking online. Various monitoring tools can tell you when online articles or web pages are reproduced in substantial part elsewhere. Monitoring for copyright infringement is critical, since your chance of happening upon an infringing work is extremely small. Simply keeping your eyes shut to third party uses could result in a waiver of your rights.

The next step is to send a threat letter to everyone involved in the online display of your copyright protected original work. This would include the web hosting company, third party provider of web services (eBay, Typepad,, etc.), domain registrant, and anyone else whose systems or technology make the display of the infringing work possible. If a copyright infringement threat letter does not result in the protected work being removed from a website, litigation is typically the next option.

Mr. Schaefer is a seasoned trial attorney practicing copyright law on a global basis. Mr. Schaefer has first chair trial experience in a wide variety of litigation matters, including class action litigation, copyright law, internet and domain law, cybersquatting actions, intellectual property, commercial and fiduciary litigation, UDRP and IP licensing. He is a frequent author and presenter on issues related to protecting business interests in a global internet economy.

To find out more about copyright law, trademark protection, cybersquatting and complex litigation, please visit Traverse Legal, PLC or visit our copyright blog.

Sunday, April 26, 2009

The Ins and Outs of Copyright Violations by Melissa M Gordon

Copyright infringement is a hot button issue for anyone whose work might be termed "intellectual property." Working within the creative sphere, anyone who finishes a piece of work and can be said to have "created" it, will justifiably have reason to complain if someone then takes all or part of their work and passes it off as their own. The act of copyright violation is also known as "piracy" - a term that was notably used in 1703 when the legendary writer Daniel Defoe said of one of his novels that it was being printed "again and again, by Pyrates." It is felt by some, however, that to use such a term for copyright infringement unjustifiably puts it on a par with greater crimes committed at sea.

The crime of copyright infringement is, however, seen as a deeply unfair act, as it allows the person carrying it out to profit financially from doing very little in the way of hard work. It has become almost inevitable when watching a DVD or other form of recorded visual media that you will first have to sit through a short advertisement warning you of the illegality of "piracy". Although these advertisements often paint copyright infringement as being on a par with crimes such as mugging and grand theft auto, they seem to have done little to halt the spread of such activity.

It has become common practice for people in possession of a "screener" - a preview DVD copy of a film which is still under cinema release - to store the movie to their hard drive and place it on the Internet for viewing by more people. Although this is, in practice, illegal the fact remains that the relevant laws are hard to enforce and the practice continues due to the technical literacy of the people streaming the film online. Under the laws regarding fair use, it is often possible to defend such activity by showing that it is not for profit.

The penalties for copyright infringement will depend on the extent of the operation. If someone can be shown to have profited from the illegal distribution of pirated material, then they may very well face a jail term. The length of this jail term will depend on various factors, not least the extent of the profit made. It also throws into question the reasons for an individual to commit piracy. If it is for personal profit, although the offender may well face jail time, this will be greatly reduced as compared with piracy to fund other illegal operations.

In more than one jurisdiction it has been shown that the sale of bootleg DVDs, CDs and other media have been used to fund terrorist activity. This naturally is viewed much more dimly than if the sale was purely for commercial reasons. Cases brought in this situation will always result in a lengthy spell in jail for the offender, as it is viewed as a much more serious crime.

Disclaimer: This article is for informational and entertainment purposes only, and should not be construed as legal advice on any subject matter. is a complete online resource that compares the legal services offered by various online companies. Find the best company for your copyright search needs at

Friday, April 24, 2009

Copyright License Agreements - What Exactly Are They? by Michael A. Fernandez

Don't let the demure size fool you - a Copyright License Agreement is one important document. Any time a company, individual or organization wishes to use any kind of copyrighted material for any reason, they need a signed copyright license agreement for that usage to be legal. Using a document like this is in the best interests of both sides. For the copyright holder, it helps to protect your intellectual property, helps to spell out how you get paid for said property and helps to control how your property can be used and for how long it can be used. For the copyright user, it protects you from getting sued by the holder, and it can even be used as good public relations that such an agreement was reached in the first place.

While some major corporate copyright license agreements can stretch on and on, the average document is only 2-3 pages in length. Even with that small size, the average agreement can feature between 10-15 sections depending on how formal the document is. The average copyright license agreement will start off by naming everyone involved in the proceedings. The next part will spell out who everyone is, what property they own and who they are throughout the rest of the document (licenser, licensee, etc.) Once everyone is properly introduced, the document proper can begin.

Most copyright license agreements start with a Grant of License, which officially grants the party looking to use the copyrighted material permission to use it. The document quickly moves on to spell out who owns the works in question and also the terms under which the copyrighted material can be used. The next part of the document, usually describing the fees and compensation the copyright holder receives for such usage is frequently the favorite part of the contract for one half of the agreement, but not the other. Probably the most important part of the document is the Use of Work section that clearly spells out how the copyrighted material can be used.

Many copyright license agreements will also have areas that spell out how violations in the document are handled and where the document is valid (in what jurisdictions.) It is common for copyright license agreements to have additional documents tacked on at a later date that extend the terms, change the terms or otherwise amend the original document. Overall, a copyright license agreement is a straightforward, brief and very important part of our current legal system.

Michael A. Fernandez is a Copyright License Agreement Research Analyst for RealDealDocs gives you insider access to millions of legal documents online drafted by the top law firms in the US that you can download, edit and print.

RealDealDocs is a division of Practice Technologies, Inc. the creators of, which provides step by step guides to local rules and civil procedure for state courts & federal courts throughout the country.

Thursday, April 23, 2009

Copyright Infringement Letter - What to Do Now? by Brian A. Hall

Although known by several different names, such as a cease and desist letter, a notice letter, and a threat letter, any letter that notes ownership of a copyright and your infringement of that copyright must be taken seriously. A copyright infringement threat letter is a letter or email from an alleged copyright owner threatening to take legal action against you if you do not stop using a work to which it claims copyright ownership. The letter typically starts out by noting who the sender is and the owner and/or author of the copyrighted work. It then provides a reference to the actual work itself, which may include a corresponding registration number with the United States Copyright Office, and identifies the use it claims is infringement of copyright.

More often than not, there is general language regarding what potential damages are available, and it set forth demands. While each letter is unique to a certain extent, the demands usually are not. A copyright infringement letter will usually request that the alleged use cease and desist by a certain date, may request direct contact with the sender by a certain date, may demand some sort of monetary payment in the form of a retroactive license or otherwise, and may request a signed agreement noting your willingness to abide the demands. Ultimately, the letter will note that your failure to fulfill the demands could result in future action, which may include litigation for copyright infringement.

It is important to understand why you would receive a copyright infringement threat letter. Typically, the owner of a copyrighted work will employ some kind of monitoring to identify when there are unauthorized third party uses of its copyrighted work. When such uses are identified, the most common initial step is to send a letter, rather than proceed directly to litigation (it is worth noting that a letter is not required under law, and it is within the discretion of the copyright owner to determine how to seek redress of any alleged damage). There are many reasons copyright owners send such letters, including protection of their existing copyright, to avoid continued unauthorized use, and to ensure the sustainability of the value of their copyright. In fact, some copyright owners may even see copyright enforcement as an additional revenue stream. This is especially true since, in today's digital age, access to various works is easier than it was in the past. As such, users may be using copyrighted material without even knowing it. That said, there is no intent requirement under copyright infringement law, and the user has an affirmative duty to confirm that any such use of a work is legal.

If you receive an infringement of copyright letter, you have several options. The first is to comply and cease and desist any and all use of the infringing work. While this may be enough to resolve the matter, as noted above, there may be additional requirements of a retroactive license or other demands. The second option is to identify possible defenses under copyright law, which may include fair use defenses. Regardless, it is important that you confirm that the copyright owner does indeed have a valid copyright, how many copyright registrations it is relying upon, and your ultimate financial and legal exposure in the particular instance before acting. Do not panic or jump to conclusions before researching the important issues inherent in any copyright infringement matter.


Sunday, April 19, 2009

Does Plagiarism Or Ghostwriting Amount to Copyright Infringement? by RK Dewan and V. C. Mathews

Ghostwriting is a profession by which a professional writer is paid to write books, articles, stories, reports, or other content which is credited to another person[1]. Various celebrities, executives, political figures etc. hire ghostwriters to do the work for them and then they claim the work as their own.

A ghostwriter may be asked to edit and refine a rough draft or he may be asked to create an article from start to finish in which case the employer may give him a couple of points or a basic idea of what he requires. The time period spent by the Ghostwriter on writing the work depends upon the work or a time period set by the employer. The cost of the same would range from between $30,000 to $ 100,000[2].

Plagiarize means to appropriate (ideas, passages etc) from another work or author[3]. It involves wrongfully appropriating someone else's ideas, theories, research results, or even words and phrases and presenting them as one's own[4]. Plagiarism is frowned upon all over the world. This is looked at very closely especially at Universities which require their students to write a dissertation or a thesis for obtaining a passing grade.

Infringement of copyright means any copy including any colorful imitation, made or imported in contravention of the provisions of the Copyright Act, 1957[5]. The question that rises is whether plagiarism would amount to copyright infringement? The same can be answered through an illustration. Suppose an individual borrows a friend's paper and passes it of as his/her own, it would constitute an academic offence and will have an impact upon his/her academic record. If the same individual has this very same paper published as his own and the original author gives his/her consent to the publication, then it may be a case of plagiarism but it won't be a case of copyright infringement[6].

In Universities, when a student is required by the rules of the institution to do a thesis or dissertation by himself, giving the same to Ghostwriters would amount to a contravention of the rules and guidelines laid down for the same. Thus the action of handing in another's work as the individuals own is illegal in nature and would attract punishment.

To determine if a case of plagiarism amounts to copyright infringement, there exists three conditions. They are as follows:

1) the plagiarized work must be protected by copyright
2) the author has not given authorisation for the usage of his work
3) false attribution of authorship[7]

By plagiarizing, an individual is in a way stealing the hard work put in by another to be his own. The basic idea of IPR protection is to reward the individual who has put in his skill and labour into the creation of the work. Attribution of the same by another person is unacceptable.

Ghost writing on the other hand is a method by which both parties are satisfied by the arrangement they draw up. If we look at it closely we see that the Ghostwriter knows beforehand that his work will be turned over to the individual who employs him, to be used in a manner which the employer wants. The Ghostwriter is given a very high remuneration for the same. The remuneration is the reward for his work. The Ghostwriter is aware of the same and is happy to hand over his work for the remuneration. There is no plagiarism in the same because there is no wrongful appropriation of the Ghostwriters work. He willfully turns over the work and gives up all rights in it for a due consideration.

The question is then whether copyright protection should be provided for the work. As the Ghostwriter is the original creator of the work, in whom should the copyright subsist? The question is answered by the fact that the Ghostwriter agrees to turn over all rights of the created work to the individual who employs him. He is given a good remuneration as his reward for the same. Thus it can safely be said that the copyright vests in the
employer rather than the Ghostwriter.

The concept of Ghostwriting is on a steady increase. It is not something which is ethical in nature but in contemporary times, it is one which is very much in existence.

There is another issue in ghost Writing- the question is:
Would Ghost Writing amount to passing off?

To illustrate, when a fan of Jeffery Archer buys a book where the author is shown to be Jeffery Archer he expects to purchase a novel written by Jeffery Archer. If the novel is written by someone else then is the reader not deceived into buying a book which he believes to be authored by Jeffery Archer. Its obvious that is this day & age publishers would like to publish as many books in the name of a "Best Selling" author & therefore Ghost Writing becomes economically expedient when the author himself is not able to churn out enough books.



3. Collins English Dictionary

4. Michael Glick, Plagiarism, salami, ghostwriting and other forms of flattery;

5. Sec. 35 of THE Indian Copyright Act,

6. Francisco, Javier Cabera Blazquez, Plagiarism: an Original Sin

7. Supra at fn. 6

Dr. Mohan Dewan and V. C. Mathews, Advocates with R. K. Dewan & Co. - Intellectual Property Rights Protection Lawyers. Get information on how our IPR lawyers help in case of copyright infringement litigation.

Friday, April 17, 2009

Where Do We Stand on Internet Copyright Law? by Chris Al-Aswad

Do you see the image above the text? I chose it without the artist's approval from this website but traced the origin of the image back to this website. Should I feel guilty about it? I've done it hundreds of times before. If I stand guilty of this crime, I stand guilty of many others too.

I'm going to go out on a limb here and assume I'm not alone. The Internet is a vast cauldron of video-sharing, link-sharing, knowledge-sharing, and yes, image-sharing. The spirit of the Internet seems to be that of a free culture. We are less concerned with property rights in cyberspace, and more concerned with community and conversation.

I'm writing this essay because I want to know what are the claims to ownership on the Internet. Nobody seems to know the answer to this question. There is no absolute law we can refer to. And if there is an absolute law, then the spirit of the Net seems to challenge that rule, provoke the law, even mock its upholders. But there are also some of us who place a high value on the individual and therefore demand the individual know her work is being shared; we must ask her approval.

If getting an artist's approval to post her image on my site is necessary and universal, then I should probably go back and obtain a plethora of approvals. Surely some will not be granted and then I must find another approval and another. Does it seem to you that this is the way things work on the Net? Or do people merely take what they like (like myself) and showcase it. Keep in mind in no way am I trying to pass off these images as my own. In fact, I credit the artists here. But I do not go so far as to ask each and every one of them if I can post their pictures. Many are in fact dead.

The Internet poses this contradiction. We recognize that file-sharing is rampant and that the wheels and cogs of the Web involve a dissemination of information; and yet we also feel the twinge of our old system of rights, copy rights, property rights, etc. To what extent is cyberspace a common space? And to what extent is it privatized? At what point should one say, "No, that's not yours; that's mine. I know I put it out there for all of you to see, but I only wanted it to appear on my site and not anyone else's."

Luckily nobody has ever said this to me. And if they wanted their image taken down, I would immediately do so. But I do not feel the need--in this wave of free-culture dissemination--to ask each artist for the approval to use their image.

I was provoked into writing this essay because of a post on a favorite blog of mine. The article, entitled "How to use Hyperlinks in Blog Fiction" didn't specifically address copyright, but the nebulous area of Internet copyright turned up in the comments.

Bekah, a blog fiction writer, wrote:

"Yes, linking to things should be fine, although not if you pretend it's your own work. But otherwise, of course that works. But putting non-stock images in blogs-- definitely a copyright infringement, even if you give credit. It is true that a lot of illegal activity occurs on the web, but it's also true that many lawsuits have followed. This isn't likely in any case, but I don't want to get near that."

I don't know much about the "many lawsuits" of Internet copyright law. What I'm more familiar with is the excess of abuses of copyright law. Especially surrounding file sharing. In the music industry in particular, copyright law is bending toward the file-sharers' favor. Apple has removed the copyright protection on its mp3s and the music industry has publicly declared that it will no longer sue individual file-sharers.

Bekah continues:

"That being said, I don't think it'll ever be okay to post someone else's picture on your blog without permission, but I don't think that anyone is suggesting that you can or should do that."

Now, artists who do not want their images shared take precautions. Some photos on Flickr for example will not copy to your hard drive because the artist has formerly set restrictions on them. In this case, it is impossible for me to copy them and the issue is moot. But what about in the cases where I can copy people's pictures. Is it wrong?

Another blogger, who runs an art blog called Vince's Ear, writes:

"Well, Chris that's an interesting question because copyrights and copyright law can be interpreted in a number of different ways, including in the courts. The main thing for me to know is something called "Fair Use." I won't be able to sell a copyrighted image in any certain form, but I can perfectly legally display the image on my site for educational purposes."

He goes on to say:

"Sorry for such a long response but I'd mainly say if a blogger is just putting images on a site, there is no need to worry at all, it's Fair Use. If you were to print and sell the Novel of Life, make sure any illustrations are in the Public Domain, or you have permission if they're not."

I consider my writing educational and therefore the "Fair Use" clause may apply to me. The educational purpose behind this essay (and its adjoining image) is to make people think. But I must be honest here. I pick the images for aesthetic reasons mainly. This reflects a deeper attitude I have about the Internet, art, and information.

I suggest we are entering a new model of human relations, one based on the macro level of exchange, not the micro level. The individual will benefit from this system just as she benefited from the old system; she may even benefit more. When information/art/work is shared by the media, libraries, universities, publications, and organizations more fluidly and freely, there is less emphasis on individual compensation and more on communal benefit. Pictures, photographs, and images are floating around everywhere. If you wanted to track down every "thief" who re-posted an image on the Internet, you would be swimming against the current not with it. The current is in favor of shared knowledge and shared art.

It will take us some time to re-imagine ourselves with fewer boundaries. Because that's what this all points to. The boundaries are dissolving all around us, geographical, political, cultural, racial, economic. The mutual exchange of ideas, images and texts will benefit us all, as it already has. We will only see this when we see it as giving work/information/art to each other, rather than taking it.

I am an artist myself. I write novels. But I've chosen not to pursue the path of traditional publishing (A) because it is crumbling and (B) because I feel I am part of a different economic model. I'd rather give my content away for free. What is a publisher but a protector, someone to handle my money? I don't need a publisher. What I need is an audience. When I find an audience, I will get paid by myself.

The tectonic plates are shifting. We will soon come to realize that the proliferation of an artist's work is worthwhile to everyone, artist, community and God. (I don't believe in God but I think He will benefit too.) So called "property rights" in an online world is a chimera.

Silvio Gaggi's scholarly work elucidates these truths. In From Text to Hypertext , the distinction between print and online worlds is made evident:

"Walter J. Ong argues that 'print creates a new sense of the private ownership of words' and that a 'resentment at plagiarism' develops with writing. Hypertext, in contrast, reinforces a sense of learning more as a communal than an individual endeavor. It creates situations in which individual contributions are likely to get lost within the conversation as a whole, and it creates new kinds of communities emancipated from physical, geographical, or political boundaries."

This book written in 1997 presages much of what is going on today. The author uses the term "hypertext" to describe the textual networks of the Internet. While that word sounds outdated, the gist of it has relevance. Hypertext is shared text, linked text, common text. Blogging is a form of hypertext. From their niches blogs are woven into the greater body of the Net. Blogging is also a conversation. Search engines determine the relevance and popularity of a site based on its links. Complex algorithms pick up on strong and weak links and thereby rank the page. This essentially means that the search engine, that great, sacred filter of online knowledge, values conversation and exchange over private ownership. In essence, what is shared is of higher value than what is not.

Silvio talks about the two mindsets behind the print and online world:

"Individuals accustomed to an ethical system based on the book regard any infringement on their authorial rights or any use of a published text, without appropriate permission, as a moral and legal wrong . . . In contrast, individuals who have become accustomed to hypertextual exchange tend to regard any impediment to free exchange as a serious wrong. The free development and dissemination of knowledge is more important than always giving precise credit where credit is due."

And here:

"Richard A. Lanham says that 'electronic information seems to resist ownership', and and Landow argues that 'from the point of view of the author of hypertext, for whom collaboration and sharing are of the essence of 'writing,' restrictions on the availability of the text, like prohibitions against copying or linking, appear absurd, indeed immoral, constraints".

So where do we stand on Internet Copyright Law? Should I feel guilty for posting the image above this article? I'm looking for answers.


Thursday, April 16, 2009

When Copying From the Internet Violates Copyright by Melissa M Gordon

The concept of copyright is one that has given rise to as many of the big legal battles of the last decade as any other. With the advent of the Internet as a major tool in people's work, life and studying habits, the amount of intellectual property that is travelling around the information superhighway is quite simply stellar. It may just be that we have never before seen a time when the rules of copyright were regarded less by the general public - as songs, music videos, book excerpts, television shows and films are traded on the Internet with varying degrees of impunity. How likely a copyright infringer is to be shut down depends on a number of factors.

One such factor is the size and influence of the individual or organization that holds the copyright on a piece of work. If you redistribute a television show that has mass popularity by placing it on a website, the station who hold the rights to the show or the production house that made it can quickly apply for an injunction to prevent you from continuing to gain from what they perceive as their work. If, however, you were to place concert footage of a little known singer-songwriter online, there is little likelihood that legal action will be taken. Apart from the fact that it may be viewed as good publicity, the difficulty of compiling a lawsuit makes it often too difficult for a smaller commercial entity to get anything substantive done.

Likewise in the case where some musical groups decided to take on what they viewed as the negative impact of peer-to-peer downloading software. This practice entails one individual putting some musical tracks on a mirroring site to allow others to download it into their own collections. When done in bulk, it is probably the most profound example of simultaneous file transfer, and something that showcases one of the major reasons for people having the Internet. However, when popular download site Napster made a number of tracks by the band Metallica available for download, the rockers were quick to complain and take out an injunction demanding that Napster stop hosting Metallica songs for broadcast.

The argument is that, having heard and even downloaded the tracks into one's own collection, you will not spend the money on purchasing any of them. This has been disputed, however, with many people leaving positive reviews and those whose opinions are taken seriously potentially influencing a number of people to go and spend money.

Copyright is different from trademarking in that a trademark protects specific words, short phrases and designs for use in commercial settings, whereas copyright protects the actual ideas and the work that goes into making them reality. While a trademark violation can interfere with a company's marketing strategy, a copyright violation is different in that it interferes with an individual's work. One is a matter of intellectual property, the other a case of identity theft. It is for these reasons among others that a "blog" post is always time- and date-stamped demonstrating when it was written, giving it its own form of copyright.


Monday, April 13, 2009

Content Theft - 4 Simple Steps For Protecting Your Copyright by Adrian Jock

Since we're not living in a perfect world, unfair and unpleasant things happen every day. If you're an ezine articles author, content theft is one of these unpleasant happenings. How to fight against it and how to protect your copyright?

Once you posted your article in a public place, like an website for example, someone may visit that website at any time, copy your article and post it somewhere else without respecting your copyright and reprint policy. In plain words, your article may be copied & posted under another author's name and using another resource box than yours.

Since the Internet is a huge place, can you detect when such theft happens? Did you protect yourself and do you know what actions to take in case such theft happens?

Here is a short guide to help you protect your work.

Step 1 - Post Your Article on Your Website and Register Your Copyright

Once you finished your article, post it on your website and register your copyright with a third party so that it is easier to prove later that you're the copyright owner.

A simple method of registering your copyright is to get a free account with My Free Copyright. Once you setup the account, you'll be able to record the title & text of your article, the page where the article was originally posted and the time of registering. You can also get a "Registered & Protected" badge to display on your article's page. That badge will be linked to the page from "My Free Copyright" where the details you registered are publicly visible.

Step 2 - Submit Your Article to Top Article Directories

Once you registered your copyright, submit your article to top article directories.

These submissions have three goals:

i. your work is known by the public;
ii. your website gets traffic when a reader of your article clicks on the links from your resource box;
iii. prevent a content thief to copy your article and post it himself on these article directories.

Step 3 - Setup Google Alerts

Now it's time for you to prepare for detecting a potential theft. Go to "Google Alerts" and setup 2 or 3 alerts: one for the title and the rest for key phrases from your article. In order to get relevant results, when you setup the alerts use inverted commas like this: "Here Comes the Title of Your Article".

From now on Google will take care and will alert you by email when it discovers a place on the web where the title of your article or your key phrases are posted. All you have to do is to check whether your copyright is respected or not.

Step 4 - Prepare a template for a Copyright Infringement Notice

Now prepare yourself for the case when a content theft happens. Search on Google for "Copyright Infringement Notice sample", look at some models and then write your own template, ready to be filled in if the case may be. Such notice will have to be sent to the owner of the website where your article is posted without respecting your copyright.

That's it!

To Your Success!

Adrian Jock is an ezine articles author and the publisher of Ezine Advertising Info Newsletter. To get more interesting tips on ezine marketing, follow Adrian on Twitter:

Friday, April 10, 2009

Music Copyright Bows To Fair Use by Michael Donaldson

Music in films is just as important as actors, writers, directors and producers. Some would say music is even more important than many other elements. But choosing the right music is the key. Music can make you tremble in fear; it can make your heart race with excitement; it can make you cry with sorrow. Music can lead you up to the climax of a film, and bring you back down to the resolution. Music can not only send a powerful message, but it can turn a powerful message into an explosive statement.

The uses and applications of music in film sound almost too good to be true. The price tag to use certain music in film can be so high that great music might almost be unaffordable. If you are making a documentary, the price tag for music can feel exorbitant. Is there anything that can be done to receive high quality product on a low quality budget? (Isn't that the ultimate life question?) Fortunately for movies, there is a little thing called Fair Use which might be the answer to their prayers.

Let me take you all the way back to April 2008. The filmmakers of the documentary "Expelled: No Intelligence Allowed" were sued for copyright infringement by Yoko Ono and John Lennon's sons, who happen to be the copyright holders of John Lennon's works. "Expelled" is a documentary primarily dealing with the harsh treatment of anyone in the academic community who wanted to promote the concept of intelligent design as it applies to the creation of earth and man. The film also explored the position of some scientists who think that the role of religion should be reduced or eliminated. To illustrate the role of this thought in pop culture, Ben Stein (the narrator of the documentary) comments that the thought is nothing new and in fact "takes a page from John Lennon's playbook." Immediately after those words, the 15 seconds from John Lennon's song "Imagine" plays with the lyric printed out on the screen over four stock shots: "Nothing to live or die for and no religion, too." Upon first glance, it would appear that the filmmakers of "Expelled" would need to pay for their use of 15 seconds from John Lennon's composition "Imagine." However, our office issued the opinion that this use of a master recording was a fair use. Not only did we think it was a fair use, we thought it fit into the safe harbor provision.

To determine if the clip would fall into the safe harbor provision, ask yourself three questions.

(1) Do you need to use this item to make the point being discussed at that time, cinematically?

(2) Did you only use as much as needed to make the point?

(3) Would the connection between the item you are using and the point you are making be clear to the average viewer without any further explanation?

If you can honestly answer "yes" to those three questions, your use will always be a fair use.

Now back to "Imagine." The particular clip of music is the best proof of the point that Ben Stein was making, so the filmmakers needed it to make the point. They only used as much as necessary to make the point. And the point they were making would be clear to anyone viewing the film without any further outside explanation. In the thoughtful chambers of a federal court in New York, the judge's careful analysis resulted in a finding that we were right in our fair use assessment.

Michael C. Donaldson is an entertainment attorney who has been fighting for independent filmmakers for over thirty years. His book Clearance and Copyright, the third edition of which was just released, is used in over 50 film schools and has become the standard reference book for the industry.

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Thursday, April 9, 2009

Superman Returns? How Superman's Creators Recovered a Copyright and How You Can Too by Chris Arledge

The creators of Superman sold their copyright during the Great Depression for $130. Their heirs are now in the process of reclaiming that valuable copyright. Their tale is a graphic demonstration of the important copyright reversion rules under the Copyright Act. Under the Act, artists who sold their works many years ago are entitled to recover them, even if they signed contracts that said otherwise. This article explains the importance of these copyright reversion rights and what artists must do to reclaim the rights to their work. demonstration of the important copyright reversion rules under the Copyright Act. Under the Act, artists who sold their works many years ago are entitled to recover them, even if they signed contracts that said otherwise. This article explains the importance of these copyright reversion rights and what artists must do to reclaim the rights to their work.

During the Great Depression, Jerry Siegel and Jerome Shuster created Superman, the now-famous hero who fights to defend truth, justice, and the American Way. Siegel and Shuster then sold the Man of Steel to Detective Comics for $130. In hindsight, we can safely conclude this was not a great deal for the sellers. Indeed, only the daily workings of Congress rival such a gargantuan waste of valuable property. But Superman's creators are not alone. Artists of all kinds have found themselves in a similar position, forced to sell the copyrights in their creative works to make ends meet. Those artists should know that, as with practically all superhero tales, the Superman story has a happy ending. And theirs can too.

In most walks of life, a sale, like a diamond, is forever. Absent unusual circumstances, if you sell your car, it is gone. You have no more right to it, and you never will. Most authors of copyrighted works - be they musicians, artists, authors or architects - probably assume that the same rules apply to their copyright: once assigned, the copyright is gone forever.

It is not. The Copyright Act, in provisions that are virtually unique in all of American law, allow the author of a copyrighted work can reclaim his or her copyright many decades later by jumping through the right legal hoops at just the right time. Because of these reversion provisions, Mr. Siegel's heirs are in the process of reclaiming the Superman copyright, a process that will result in the multimillion dollar transfer of wealth from Warner Brothers to them. All other authors of valuable copyrighted material-and the heirs of such authors-should pay attention to their story.

The copyright reversion rules under the Copyright Act are complicated, and it is likely impossible in a short article to turn a lay person into an expert. In light of the complexity of the process and the consequences of failure, it makes very little sense for most copyright authors to try and reclaim copyrights on their own. Legal help is almost certainly required.

But when should a copyright author who assigned his or her work seek legal counsel to start the process? The answer depends on when the copyrighted work was first created. For all copyrighted works created before January 1, 1978, the Copyright Act of 1909 provides the ground rules. Originally, copyrights under the 1909 Act lasted 28 years. (Was that it in the beginning, or was there always a 28-year renewal term?) At the end of the 28 years, the copyright ended, and the material was freely available to the public. Congress has added to a copyright's life expectancy on multiple occasions since then, and these days a copyright under the 1909 Act can last up to 95 years. The right to terminate an assignment and reclaim a copyright under the 1909 Act can occur after the first 28 years, at the end of 56 years, or at the end of 75 years.

The rules are different for copyrighted works created after January 1, 1978, because the Copyright Act of 1976 applies. Under the 1976 Act, the copyright lasts for the life of the author plus 70 years. And a copyright assignment can be terminated-and the copyright reclaimed-after 35 years. This means, of course, that the earliest copyright reversions under the 1976 Act will begin in 2013. Copyright authors like Paul McCartney and Elton John are-or at least should be-preparing to reclaim their rights. The current owners of their copyrights are no doubt planning their strategies to hang on.

Two other points are worth noting. First, the copyright reversion right is non-waivable. In other words, even if the copyright author agreed to give up his or her reversion rights, those rights still exist. The usual rules of contract law do not apply. Nor do the usual rules regarding probate. A copyright assigned through a will is not lost forever. The heirs of the dead copyright author-the very people the copyright author apparently did not want to have the copyright-are entitled to reclaim it anyway.

Second, and finally, copyright authors should not wait until the last minute to begin the process of reclaiming their property. The Copyright Act requires authors to give notice before the reversion occurs, and the notice period begins years before the copyright reversion can be seized. Moreover, legal counsel might require some time to investigate and prepare your case, so waiting until the last second could potentially prejudice your rights.

As anybody who has watched the Superman movies knows, Superman always comes back. He certainly has come back to the heirs of those who created him. And if you or a relative created a valuable copyrighted work, you may find that your creation can return as well.

Chris Arledge, a partner in the law firm Turner Green Afrasiabi & Arledge LLP, specializes in copyright, trademark and patent disputes. You can learn more about Chris at

Sunday, April 5, 2009

Infringement of Copyright - What Kind of Damages Are Available by Brian A. Hall

Under the Copyright Act, an infringer of a copyright is liable for either the owner's actual damages and any additional profits of the infringer or statutory damages. It is within the discretion of the plaintiff, or individual seeking to protect his or her copyrighted work, to elect either actual damages or statutory damages. More often than not, the owner will elect statutory damages where that owner has registered the work with the Library of Congress. The reason for this is that the owner may not be able to establish actual damage to the copyright, to the owner's business, or ill-gotten profits of the infringer in such a way that the total amount is greater than that which is available under the Copyright Act for statutory damages.

That said, it is important to note that courts, within their broad discretion, may look to actual damages suffered when determining what the statutory damages award should be. However, there are limitations within the Copyright Act that control the amount of statutory damages on a minimum and maximum basis. For example, a willful infringement of a registered copyright enables the court to award statutory damages up to a maximum of $150,000. However, where the plaintiff fails to sustain its burden of proving willful infringement, the court may reduce the award of statutory damages to a minimum of $200. Typically, an owner pursuing an infringer will be limited to statutory damages between $750 and $30,000 for the infringement of one work.

While statutory damages are intended to create an incentive for owners to protect their valuable intellectual property, and conversely to deter the unauthorized and unlawful use of another's copyright, the ability to recover costs and attorneys' fees is yet an additional motivation of some owners when seeking to redress copyright infringement. Once again, the importance of a federal registration of a copyright becomes clear because not only are statutory damages available, but attorneys' fees and costs are also available in an infringement lawsuit.

In sum, it is important that an owner understands what damages may be available to redress infringement of copyright. Likewise, an entity accused of copyright infringement should understand not only the legal exposure, but must also understand the financial exposure. With these principles in mind, owners can make educated decisions regarding which works to protect with federal registrations, how often to file such registrations, and whether to file as compilations, understanding that infringement of such compilation will be limited to statutory damages for one work.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm practicing complex litigation, intellectual property matters, internet law, and copyright infringement matters. Speak with a copyright attorney and learn more about the importance of understanding the intricacies of infringement of copyright.

Friday, April 3, 2009

Copyright Patents - Having Exclusive Rights and Ownership to Your Work by George Edmondson

Copyright patents are basically there to grant people exclusive ownership to their artistic work and inventions. Because they own their work solely, other people are restricted to capitalize on their hard work. It means other people cannot use their invention, their books or songs for reproduction and reselling. Other people definitely have no right to own their work as well.

Copyright Patents: The Same or Not?

Well, the main purpose of copyrights and patents is quite the same. As stated above, copyright patents protect inventors and artists from other people who may steal the credit of producing such invention or artistic work. Other people may also make and use their works for their own benefit. Many would attempt to import and sell the same products.

The main difference between copyrights and patents lies on the different kinds of property, such protection is given. Copyrights are given to protect creative artistic expression. Patents, on the other hand, are given to inventions. These are the machines, methods and other products people invent and design.

And since each is different from the other, the total monopoly inventors and artists or writers get to their invention and works of art would also differ. But when both are violated, inventors and artists or writers can legally pursue the violators and collect damages. Getting official copyright patents, however, are not easy and fast. One must apply for it and go through the whole application process until a copyright and patent is officially granted.

More on Copyrights

When people mention copyrights, it generally means the government is restricting other people from reprinting or reproducing the original work. Only the writer, composer, playwright, publisher or distributor can legally reproduce or use the material for commercial purposes or exhibition.

However, expressions of art can only be granted copyrights if they are in tangible form. A song, for example, should be written or recorded to get a copyright. Book and magazines should be written first before they can be copyrighted. Paintings, drawings and photographs, of course, can be copyrighted.

The symbol "c" or the word "Copyright" usually denote that the work is protected by a copyright. It would usually be followed by the name of the artist. Then the date of its first publication would come next.

The copyright protects the work while the artist is still alive and fifty years after that. However, since the copyright is governed by the Copyright Act of 1976 such rule only pertains to all works granted copyrights after January 1, 1978. Works before this date only gains copyrights from January 1, 1978 to December 21, 2002.

About Patents

Patents give protection to people's creative ideas. There are utility patents which generally covers most patents applied for. But for machines and other products to be granted a patent, they must be fresh or novel, useful and not obvious. Ornamentation of devices and machines are also given design patents. And when new varieties of plants are produced they can be granted plant patents as well.

Utility and plant patents both get 20 years of protection from the date of application. Design patents, on the other hand, get 14 years protection from the date of issuance of the patent.

So if you don't want the products of your hard work and your creativity to be taken advantaged of, seeking copyright patents is the best option.

George Edmondson is a successful writer specializing on copyright patents. To know more about copyright patents, visit

Wednesday, April 1, 2009

Copyright Infringement and the Critical Time Frames Related to Registration by Brian A. Hall

The matters all start out the same - there has been an infringement of copyright. While numerous issues are immediately identified and debated, issues related to important dates and deadlines must not be overlooked. Copyright owners and attorneys alike should be asking several questions:

1. Has there been a federal registration for the particular work that is the subject of copyright infringement matter?
2. If so, when was the copyright registered?
3. When was the copyrighted work first published?
4. If the copyright is based upon common law, will a registration be useful now?
5. Has the copyright owner forfeited any rights in light of certain important dates?

These questions become critical in any copyright infringement matter. Copyright rights persist for a period of the life of the author plus 70 years. This duration cannot be renewed. Once this time is up, the work that was once covered by a copyright registration is now part of the public domain. Therefore, an infringement of copyright may not have actually occurred.

On the other hand, an existing copyright registration is important for several reasons when there is unauthorized use. Registration before or within five years of publication of the particular work entitles its owner to a presumption that the copyright is valid in an infringement lawsuit. Moreover, registration within three months after publication or before infringement results will also entitle the copyright owner to statutory damages and attorneys' fees. The benefit of a presumption of validity, coupled with the leverage or ability to actually recover statutory damages and attorneys' fees, are extremely important in any copyright infringement lawsuit. Therefore, the copyright owner would undoubtedly want to take advantage of these benefits and not forfeit its ability to do so because of a failure to understand these important time frames.

Ultimately, identifying these time frame related issues, along with the critical answers to them, will allow a copyright owner to act accordingly. Similarly, the alleged infringer would want to fully understand both the limits and risks associated with the work that is the subject of the copyright infringement. While each case is unique with specific facts and issues, these principles are applicable to all.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm practicing complex litigation, intellectual property matters, internet law, and copyright infringement matters. Speak with a copyright attorney today and learn more about the importance of registering, monitoring, and protecting your copyrighted works.