Tag: Phoenix copyright lawyer

• What Happened to Adult Wednesday Addams?

  

  Earlier this year, I discovered Melissa Hunter’s “Adult Wednesday Addams” on YouTube. It’s a collection of short videos featuring Melissa playing a grown-up version of the iconic Addams Family character. In each video, Melissa dresses up like Wednesday Addams (black dress, long braids, pale skin, and deadpan attitude) and plays out everyday occurrences (like interviewing to be someone’s roommate and going to work) while embodying the Wednesday Addams character. She is a talented, smart, and funny writer.

  Recently I noticed that all of Melissa’s adult Wednesday Addams videos were pulled from her YouTube channel. (You can still find them on others’ channels.) Apparently, Tee & Charles Addams Foundation, the copyright holder for the Addams Family, flagged her videos for copyright infringement after her video where Adult Wednesday Addams responds to catcallers gained attention by the international press.

  So of course, my question in this situation is, “Are the Adult Wednesday Addams videos infringing on the original Addams Family copyright or are they protected by fair use?”

  The law is complicated and there is no mathematical equation that will definitively show whether this is fair use. That is up to a court to decide based on the merits of the case. There are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright: PAIN.

  P = Purpose and character of your use

  A = Amount of the original used

  I = Impact on the market

  N = Nature of the work you copied

  Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Adult Wednesday Addams transforms the original Wednesday Addams character who was a tween in the latest Addams Family movie (Favors Melissa). I don’t remember if Melissa was running ads on her videos, but if she was, that would be a strike against her – but not a deal breaker (Favors Addams Foundation).
  • A (Amount): Compared to the entire Addams Family franchise, Melissa only used a single character (Favors Melissa) but compared to the copyright in the Wednesday Addams character herself, Melissa copied a substantial amount (Favors Addams Foundation). However, part of what makes Adult Wednesday Addams work is that we know that she is copying the original. That’s what makes it so funny, and parody is generally protected by fair use.
  • I (Impact on the market): Apparently there is a new project in the works for the Addams Family, but I don’t know if Melissa’s work will have any effect on that. Melissa’s videos are only a few minutes long, compared to the longer TV shows and movies created using the original characters’ story line. Her work is definitely not a viable substitute for those (Favors Melissa).
  • N (Nature of copied work): The Addams Family has been made into cartoons, a TV show, and movies. Melissa Hunter created short YouTube videos. Although these are both audiovisual works, they cater to different audiences (Favors Melissa).

  Do I think what Melissa did was fair use? Yes. I hope she’s fighting the claim that her work is copyright infringement, and I hope whoever is working on the Addams Family remake offers to hire her. Remember, fair use is a defense, not a permission slip, so Melissa has to prove to the court that what she did was legal if she chooses to fight this.

  Yesterday, Melissa released a video with an update about Adult Wednesday Addams:

  I’m glad to see that Melissa is as sassy as ever and that she’s working on this while putting energy into new projects too. Keep wearing that dress!

  Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me or connect with me on Twitter, Facebook, YouTube, or LinkedIn.

  June 18, 2015

  •

  Ruth Carter

  •

  Geek Law, Intellectual Property, Internet law

  Addams Foundation, Adult Wednesday Addams, Arizona internet attorney, Carter Law Firm, Copyright infringement, Fair Use, Melissa Hunter, PAIN, Phoenix copyright lawyer, Ruth Carter, social media law, VenJuris

• Creator Rights | Phoenix Comicon Recap

  

  I had an awesome time presenting on Creator Rights at Phoenix Comicon this year with Javier Hernandez. His comic book series, El Muerto, was recently made into a movie and a fan created a fan film that was shown at the Con. It was really interesting to hear his story as an artist trying to muddle through the legalities of working in the arts with the help of his lawyer.

  I don’t prepare much for my talks at Phoenix Comicon. I feel like it’s my job to be there to explain legal concepts in plain English and answer the audience’s questions about copyright, trademarks, contracts, and fan art. There’s always a fun smart audience with thoughtful questions. It’s a privilege to be invited back multiple times. Here are some of the highlights from this year.

  You have Rights in your Original Creations
  There is no legal protection for ideas but there is for original works of authorship once you’ve captured your ideas in a tangible medium such as paper or a digital file. The copyright laws were designed to protect original story lines and fully-formulated characters. I often recommend that artists at least register their “story bible” with the U.S. Copyright Office to maximize their legal rights related to their work.

  Once you create a comic, you have the exclusive right to copy, distribute, display, perform, or make derivative works from your original work. That’s why the movie studio had to get the option (aka license) from Javier to make a movie from El Muerto, because a movie is a derivative work. Javier didn’t authorize the creation of the fan film and so when he went to see it, part of his motivation was to see if he wanted to exert his legal rights to stop the creators from showing it in other forums.

  Protect your Trademarks
  Someone in the audience shared a horrific story. He created a comic and after he started sharing his work with others, someone else started a similar comic – with the same name. Here’s the kicker, the second guy registered the name with the U.S. Patent and Trademark Office. What a nightmare. I told him to call a lawyer to try to sort out this mess.

  A lot of beginning artists and people who create art as a hobby don’t understand their rights and how they can avoid problems like this by registering their trademark before their competition does. Or if they understand their rights, they don’t invest the money to file the proper applications with the federal government. These types of problems happen all the time. Check out what happened when two restaurants decided to call themselves “Burger King.”

  When Contracts are Involved, Call a Lawyer
  If you are lucky enough to create art that someone wants to buy or license, call a lawyer. The other side is going to present you with a contract that was written solely based on their interests. You need someone who is equally versed in entertainment contracts to represent you. Lawyers talk to lawyers – so hire someone who can explain the process, understand your priorities, and advise you of your options.

  Javier and I had a fantastic time doing this panel – sharing our experiences and knowledge from the creator’s and lawyer’s perspective. It was a wonderful juxtaposition for the audience. I also did a panel at Phoenix Comicon on Fan Art/Fiction and Copyright. If you want to know more about that specific topic, check out this post I wrote last year with a handy mnemonic device.

  If you have questions or want to chat more about creator rights, please contact me directly or connect with me on social media via Twitter, Facebook, YouTube, or LinkedIn.

  June 11, 2015

  •

  Ruth Carter

  •

  Business Law, Geek Law, Intellectual Property

  Arizona trademark attorney, business contract law firm, Carter Law Firm, comic book rights, copyright rights, creator rights, El Muerto, entertainment law contracts, fan art, fan fiction, Javier Hernandez, movie license, Phoenix Comicon, Phoenix copyright lawyer, Ruth Carter, VenJuris

• Richard Prince’s “New Portraits” – Art or Infringement?

  

  A few people sent me links to articles about Richard Prince’s art show called “New Portraits” at Gagosian gallery. He took screen shots of other people’s Instagram photos, added one comment, and is selling them for $100,000 each. From what I’ve read, he never asked any of the Instagram users for permission to use their images and they aren’t getting any of the profits from the sales.

  Apparently Prince has done things like this before – taking others’ work, altering it, and selling it. According to reports, he’s been challenged in court and won in previous situations. (Fair use is a portion of the copyright law that allows others to build on other’s work in original ways, like adding commentary, creating a parody, or making new artistic statements.) Prince’s history of being victorious in the courtroom might make these Instagram users hesitate to bring a lawsuit against him now, but I’m not convinced they would lose.

  There is no cut-and-dry, black-and-white mathematical equation that will definitively show whether what a person did constitutes fair use or copyright infringement. That is up to a court to decide based on the merits of the case. The court can consider any evidence it wants in these situations, but there are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright. The acronym for the fair use factors is PAIN:

  P = Purpose and character of your use

  A = Amount of the original used

  I = Impact on the market

  N = Nature of the work you copied

  Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Prince used others’ work for a commercial purpose (to make money) and didn’t transform the originals except to add a single comment to each one and create a collection. (Does not favor Fair Use)
  • A (Amount): Prince took screen shots of each user’s Instagram profile and used an entire photo. (Does not favor Fair Use)
  • I (Impact on the market): As far as I know, Prince is the only person currently selling these images, but the fact that he’s selling them could impact the original artists’ ability to sell their work. The fact that Prince is selling these prints doesn’t change whether these images are available to view the original images online. (Weak argument for finding Fair Use at best)
  • N (Nature of copied work): Prince took images from a social media platform and created “art.” There might be an argument that the audience that would seek these images out online is different than an audience who would be interested in Prince’s work. (Weak argument for finding Fair Use.)

  Do I think this is fair use? No, but I’m not the judge in this situation. We won’t know for certain until and unless the Instagram users’ whose photos were used in Prince’s work bring lawsuits against him for copyright infringement. I suspect many or all of these photos are “selfies” so these individuals may have a claim against him for commercializing their images without consent as well as a copyright infringement case.

  Remember, fair use is a defense, not a permission slip. If these users sue for copyright infringement, Richard Prince would have the burden of showing that what he did was sufficient to qualify for fair use.

  Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me directly or connect with me on social media via Twitter, Facebook, YouTube, or LinkedIn.

  More articles about this situation:
  Artist Steals Instagram Photos & Sells Them For $100K At NYC Gallery
  Richard Prince Sucks

  May 25, 2015

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  Ruth Carter

  •

  Intellectual Property, Photography & the Law

  arizona copyright attorney, Carter Law Firm, Copyright infringement, Fair Use, Instagram, intellectual property, internet copyright, Internet Law, New Portraits, PAIN, Phoenix copyright lawyer, Richard Prince, Ruth Carter, VenJuris

• If Someone Sends you a Photo of Themselves, Do you Own It?

  

  Frequently I hear questions like, “If someone emails or texts me a photo of themselves, does it become my property?” Many people in this situation want to know if they own the photo and what they are allowed to do with it.

  The answer to “Do I own the photo?” is “Yes” and “No.” Yes, you do own a copy of the photograph by virtue of the fact that someone gave it to you. However, owning a copy of a photograph does not mean that you own the copyright in the image, which is why you can’t do whatever you want with the picture. If the person who sent you a photo intended to give you the copyright as well, the copyright assignment would have to be in writing.

  Think of getting a photo via email or text message like it getting a postcard in the mail. The postcard was addressed to you so you now own it, which means it you can look at it, put it on your refrigerator, and if the message doesn’t contain something that any reasonable person would know the sender would expect to be kept private – you could show it to others. However, you cannot make photocopies of the postcard and sell it or send it to others without the copyright holder’s permission.

  Keeping this in mind, it should be obvious that the fact that someone sent you a photograph does not give you permission to do whatever you want with it. You would have to get permission from the copyright holder to post it online, and if it’s an image the sender would expect you to keep private, merely showing it to others could be illegal. If the photo in question is an explicit image, showing it to others could violate your state’s revenge porn law, which may be a felony.

  With few exceptions (like child pornography) having a photo is not illegal but what you do with it could be. Therefore, if someone sends you a photo of themselves, you may keep it for your personal viewing pleasure but it could be illegal to share it with others.

  This is an area of law that is still evolving. Since mobile devices come equipped with cameras, it’s important for everyone who has one is mindful of their dos and don’ts regarding sending and receiving images. If you want to talk more about this topic, please contact me directly or connect with me on social media via Twitter, Facebook, YouTube, or LinkedIn.

  May 14, 2015

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  Ruth Carter

  •

  Intellectual Property, Internet law, Photography & the Law

  Arizona internet attorney, Carter Law Firm, copyright assignment, copyright ownership, cyberharassment, email photo ownership, harassment, Phoenix copyright lawyer, Ruth Carter, social media law, text picture property, VenJuris

• Clothing Line Intellectual Property

  

  Recently I’ve had a few questions about intellectual property related to starting the clothing line or T-shirt business. These people asked me how they can protect their work. Is it trademark? Is it copyright? The answer is, it’s probably both!

  A trademark is anything you put on your goods or services to differentiate them from the competition. And a business can have several trademarks. They are your company name, brand names, slogans, logos, etc. Likewise, a clothing line can have several trademarks including your company’s name, the name for each collection, slogans, and your logos. The triangle patch with the question mark on it is a trademark for Guess jeans as is the alligator logo for Lacoste brand clothing.

  Before you select the trademarks you want for your clothing line, be sure to check the U.S. Patent and Trademark Office (USPTO) database to verify that the trademark you want has not already been claimed by another company in the apparel industry or a related industry. If a trademark has already been registered that company could stop you from entering the marketplace using a trademark that is confusingly similar to theirs. (See the story of The North Face v. The South Butt for an example.)

  Your clothing line may also contain several copyrights. If you design T-shirts, you will have copyright rights in each design. You may also have copyright rights in your logo. You have rights in what you create the moment you create it; you don’t have to register them with the U.S. Copyright Office to obtain your rights (however, you do have to register if you want to sue for copyright infringement.) If your design is simply a short phrase on a shirt, it may not be copyrightable because short phrases are often not original enough to warrant having a copyright. Depending on what your phrase is, if you’re using it as a slogan, it could be a trademark.

  If you outsource the creation of the designs for your clothing or the creation of your marketing materials, make sure you have clear written contracts with these independent contractors to ensure that you own whatever you have hired them to create. Otherwise you may find yourself in a situation where the artist owns the intellectual property rights in what they created, and you merely have a license to use it.

  As you can see, determining what intellectual property you have may be a complicated question. It’s best to consult an intellectual property attorney to assist you in identifying your intellectual property and determine the best strategies to protect it, which may include registering your copyrights and trademarks.

  If you have any questions about copyrights or trademarks, feel free to shoot me an email or connect with me on Twitter, Facebook, or LinkedIn.

  March 10, 2015

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  Ruth Carter

  •

  Intellectual Property

  Arizona trademark attorney, business lawyer, Carter Law Firm, Clothing Line, intellectual property, North Face, Phoenix copyright lawyer, protecting your brand, Ruth Carter, South Butt, start up lawyer, t-shirt design

• Top Three Legal Tips for Dad Bloggers from Dad 2.0 Summit

  

  I had an awesome time at Dad 2.0 Summit – an awesome conference for dads who blog. I was invited to the conference to hang out in the Knowledge Bar during the breaks to talk with people about the legal dos and don’ts when it comes to their blogs. One gentleman asked me what three tips I’d give to the conference’s audience. Here’s what I said.

  1. Be Thoughtful about what Images you Use on your Site.
  Unfortunately, a lot of people think they can use any image they find online as long as they give an attribution and a link back to the original. What you’re likely doing is committing copyright infringement and telling the artist what you did. I recommend getting permission from the person to use their image or only use Creative Commons images for your site. I only use images that come with the license that lets me modify and commercialize them.  For more information about this topic, check out this post and/or watch this video.

  2. Register your Trademarks.
  This is my soapbox issue for the year for bloggers, vloggers, and podcasters – register your trademarks! If you don’t, someone else can start using it, register it with the U.S. Patent and Trademark Office and they could essentially shut down your site. You’d have to decide whether to fight them for it or rebrand. It’s easier and cheaper to protect yourself by registering your brand first. Then that way you’ve secured your rights to your name, logo, and slogan everywhere in the U.S. For more information about this topic, check out this post and/or watch this video.

  3. When you get Free Products or Write Sponsored Posts, Disclose It.
  Federal law requires you to only give true and accurate reviews when you do product reviews and you must disclose when you are compensated for giving your opinion. You have to tell your audience when you get products for free, participate in campaigns for compensation, or have sponsors. This rule applies to blogs, review sites, and anywhere you post on social media when you’re compensated for doing so. For more information about this topic, check out this post.

  The laws regarding blogging and social media are still developing so it’s important that you stay abreast of changes as they occur when they apply to you. I will do my best to create content on developments in social media and internet law. If you’re looking for a resource that reviews the laws that apply to bloggers, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. You can always send me an email if you ever have questions, and please stay connected with me on Twitter, LinkedIn, Facebook, and YouTube.

  If I don’t see you before then, I look forward to re-connecting with you at Dad 2.0 Summit next year!

  February 22, 2015

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  Ruth Carter

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  Internet law, Legalities of Blogging

  #dad2summit, Arizona trademark attorney, Blog Law, blogging and free products, Carter Law Firm, Creative Commons, Dad 2.0 Summit, dad bloggers, dad blogs, Free Images for your blog, Internet Law, legal side of blogging, Phoenix copyright lawyer, register trademark, Ruth Carter, social media law, social media lawyer, sponsored blogs

• Yahoo Taking Advantage of Creative Commons with Flickr Wall Art – Hope they Don’t Screw it Up

  

  My friend and amazing photographer Devon Christopher Adams tipped me off about Yahoo’s announcement that people can buy Flickr Wall Art of Creative Commons images from Flickr . If Yahoo does this right, it’s a brilliant business move. If they do it wrong, I hate them.

  When a photographer posts their images on Flickr, they can designate whether they are restricting all copyright rights (“all rights reserved” aka don’t use my work without ask my explicit permission first) or attaching a Creative Commons license to it. A Creative Commons license means anyone can use the photographer’s work as long as you follow the rules of the license. For example, I often use Creative Commons images on my blogs but I only use photos that come with the license to modify and commercialize them. This allows me to crop the photo and to use it for business purposes – like a blog post on my law firm’s website.

  If Yahoo only uses images for its wall art product that come with the license to commercialize them, then Yahoo already has permission to print these images onto paper or canvas and sell them, as long as they follow the other rules of the license.

  Every Creative Commons license I’ve ever seen requires giving the copyright holder an attribution for their work. (Always give credit where it’s due!) I would hope that Yahoo would put the attribution on the front of the image – in a lower corner, so anyone who sees it can know who created the image. If that’s not possible (and good luck convincing me it’s not possible), at least put a non-removable label or notice on the back of who the copyright holder is and a URL to the original image on Flickr. If they don’t give an attribution as the license requires, they could be committing copyright infringement and could face a cease and desist letter, a bill, or a lawsuit.

  I’m a huge advocate of copyright holders, especially in the arts community. I think a lot of photographers aren’t given the credit they deserve because many people assume they can replicate a photographer’s work with their smart phone – until they try to do it and they see how much skill it really takes.  Photographers constantly have to deal with people stealing their work online. It’s so wonderful to see them becoming more savvy about their legal rights.

  I hope Yahoo is diligent about giving photographers the credit they deserve and respecting when a photographer changes the license on their Flickr account to only allow non-commercial uses. This won’t impact a person’s ability to own wall art of it prior to the license being changed; but Yahoo should stop selling it if the artist doesn’t want the company making money from it.

  I hope Flickr Wall Art becomes an avenue for photographers to get exposure for their work in ways that will create new opportunities for them and that they won’t feel like Yahoo is taking advantage of them. If done properly, whoever at Yahoo who came up with this idea deserve a muffin basket for seeing this business opportunity.

  Copyright and the internet is a murky area of law, and one that is still evolving. If you want more information about this topic, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat more about this topic, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.

  Please visit my homepage for more information about Carter Law Firm.

  November 23, 2014

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  Ruth Carter

  •

  Intellectual Property, Internet law, Photography & the Law

  Arizona social media attorney, Carter Law Firm, copyright rights, Creative Commons, Flickr Wall Art, Internet Law, Phoenix copyright lawyer, Ruth Carter, Yahoo

• Who to Ask for Permission to Use a Photo

  

  I had the pleasure of speaking at TechPhx over the weekend and fielding a lot of questions about how the law applies to blogging and podcasting, especially copyright, trademark, and privacy issues. The big take-home lesson surrounding copyright is usually “get permission” to use a photo on your site by using images from Creative Commons or asking the copyright holder for permission to use their work. (I’ve never had anyone tell me “no.”)

  But what do you do if there’s an image you want to use and you can’t tell who the copyright holder is to ask permission?

  I would start by evaluating the situation where I found the photo and contact the website administrator if it’s on a website or the profile owner if it’s on a social media site and say something like, “This picture is really beautiful. Who took the photo?” or “Where did you find this photo?” I probably wouldn’t ask, “Who is the copyright holder?” because a lot of people don’t understand copyright law and they think that owning a photo or having a copy of the file means they own the copyright, when they don’t.

  I saw a situation where a publication asked a person if they could use some of the photos she posted on her social media site in an upcoming edition and she said “yes.” Unfortunately, that person wasn’t the copyright holder and she didn’t understand that she didn’t have the authority to give such permission. The publication thought they did everything right but because they didn’t verify they had permission from the copyright holder, they had a bit of a mess to fix once the photographer learned what had happened and informed the publication that they used his work without his permission.

  Another tactic I might use if I wanted to find a copyright holder is run the photo through the Google Image search engine to see where else the image is available online. That might reveal the original source.

  Here’s a video with more information about how to determine who is the copyright holder or whether is in the public domain.

  If you can’t determine who the copyright holder is to ask permission to use their work, you may want to ask yourself how important it is to use that particular image and whether a similar image that is available under Creative Commons.

  If you want more information about how copyright law applies to blogging and social media, please check out my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to copyright and the internet. If you want to chat more about this topic, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.

  Please visit my homepage for more information about Carter Law Firm.

  November 18, 2014

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  Ruth Carter

  •

  Intellectual Property, Internet law, Legalities of Blogging, Photography & the Law

  arizona copyright attorney, blog copyright, Blog Law, Carter Law Firm, copyright law, copyright owner, Creative Commons, how to find who owns a photo, Internet lawyer, Phoenix copyright lawyer, photo copyright, Ruth Carter, social media law, social media lawyer

• Avoid Copyright Infringement in your Social Media Posts

  

  The other day I smiled when I saw a friend put a post on Facebook that included a Creative Commons attribution. He was the person who taught me how important it is, just from the perspective of respect, to get permission before posting another person’s work on your social media page. This was before I studied and fell in love with copyright.

  Now, it warms my little lawyer heart to see someone respecting copyright.

  And I finally have time to read Gary Vaynerchuk’s book Jab, Jab, Jab, Right Hook, which is filled with helpful information on how to market your business and excellent demonstrative case studies. One of his lessons is to use each platform to suit the needs to the users. So if a site is visually-focused, like Facebook or Pinterest, you want to create posts that have images that will provide users value and hopefully they’ll share them. His book has great examples of how companies are doing this effectively and what habits you shouldn’t emulate.

  This is when the red flag went up for me.

  If a company’s marketing department created a photo, there’s no problem with copyright. But if a company is using someone else’s photo (because companies don’t just have to talk about themselves online), they have to deal with the question of whether they have permission to use the image in question.

  A lot of companies appear to be thoughtful about making sure they are using their own photos or finding images via Creative Commons for their website or blog. However, they don’t apply the same standards to their social media posts. If you’re doing this, and pulling images from other site without getting permission from the copyright owner, you could be setting your company up to be accused of copyright infringement and face a cease and desist letter, a DMCA takedown notice, a bill, or possibly a lawsuit.

  I’ve been inspired by people who use social media effectively and find amazing images to incorporate into their posts. I hope to create more content on social media that’s worth sharing. If you’re in my boat, please make sure to use images you own or use Creative Commons. When I use Creative Commons, I only pull images that come with a license that let me modify (aka crop them) and commercialize them. And even on social media, give your photographer the attribution. You may be legally obligated to do it, and it’s also a sign of respect for their work.

  If you need an effective legal resource written in layman’s terms on this topic, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to copyright and the internet. If you want to chat more about this topic, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.

  Please visit my homepage for more information about Carter Law Firm.

  November 13, 2014

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  Ruth Carter

  •

  Intellectual Property, Internet law, Photography & the Law

  arizona copyright attorney, Blog Law, Carter Law Firm, cease and desist letter, Copyright infringement, copyright law, Creative Commons, DMCA takedown notice, Gary Vaynerchuk, images for your blog, internet attorney, Jab Jab Jab Right Hook, Phoenix copyright lawyer, Ruth Carter, social media law, social media lawyer

• What Should You Do If Someone Steals Your Work

  

  Copyright infringement appears to be rampant on the internet. Some people don’t understand that they can’t use anything they find online. They don’t understand that the law lets the copyright holder dictate where their work is displayed and distributed. Some people get defensive when they get caught and say you should be happy that you’re giving them exposure.  Others know it’s illegal and take the gamble that you won’t notice or that you won’t object if you see what they’ve done.

  Make Sure It’s Your Work They Copied
  People don’t always own what they think they own. Check your contracts to verify that you are the copyright owner and not just the creator of a work. Remember – employees don’t own the copyright in anything they create within the scope of their job but independent contractors retain the copyright in anything they create unless there’s a written copyright assignment or work made for hire contract. Additionally, two artists can independently come up with similar ideas for original works and it may not be problematic so long as they’re only claiming rights in what they created.

  How Do You Want This To End?
  This is the question I ask all my clients who are in a suspected intellectual property infringement situation. Their goal determines my course of action. Ideally you should determine how you want to react to infringement before it occurs so you can lay the foundation in advance for your desired outcome.

  If you just want the infringer to take down your work, you can respond with one of the following:

  • Letter from you to the alleged infringer
  • Cease and desist from your attorney
  • DMCA takedown notice to the alleged infringer’s webhost

  If you want the alleged infringer to pay you for using your work you can send a bill or sue them for infringement. If you want to pursue one of these options, you definitely want to use a lawyer to contact the alleged infringer on your behalf or through the court.

  If you’re OK with the person using your work, you should send them a notice that gives them permission and requests they ask permission before using your work in the future. You always want to respond when you suspect someone is using your work without consent. Otherwise you could create the impression that you’ve attached a blanket license for anyone to use your work which could hurt your chances of going after other suspected infringers in the future.

  Please note – you can send a notice without being a jerk about it. Jack Daniel’s sent what’s been referred to as the nicest cease and desist letter when an author copied Jack Daniel’s label on his book cover.  You could write or ask your attorney to do something similar

  If you need a legal resource about how to avoid problems related to copyright and trademark infringement online, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to intellectual property and the internet. If you want to chat more about this topic, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me.

  Please visit my homepage for more information about Carter Law Firm.

  October 28, 2014

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  Ruth Carter

  •

  Business Law, Intellectual Property, Internet law, Photography & the Law

  arizona copyright attorney, Arizona intellectual property law firm, Arizona small business lawyer, Carter Law Firm, cease and desist letter, Copyright infringement, DMCA takedown notice, Internet Law, Phoenix copyright lawyer, responding to infringement, Ruth Carter, social media law, suing for copyright infringement, trademark infringement, use someone else’s work