Copyright issues

[Dan Robinson]

Copyright infringement and unauthorized use are huge and personal issues to me. I've recently discovered that Polydor Records has included a track from one of my albums in an historical blues box set released in Europe, for which there has been neither authorization nor payment. This is a worldwide entertainment corporation, and my chance of getting anything out of it (beyond huge legal bills) is miniscule.

Dave, just for your FYI and anyone else on here who produces any type of intellectual property: It is a misconception that pursuing IP infringements is expensive, risky or otherwise not worthwhile. There are plenty of attorneys across the USA who take cases like this and do not charge any fee until they win a settlement or a court case. They take a percentage of the final amount of the settlement or judgement, and you don't ever have to pay a dime. You don't even have to be involved in the litigation process - the attorney handles everything for you. All you do is sign documents when they need to be signed, fill out forms when needed, and give the attorney your personal go-ahead on any actions he decides to take. Trust me, it works and is definately worth your time to look in to it.

Don't ever let an attorney tell you that you can't win an IP case like this. There are some who will give you that line - but it's not true. Search around for a lawyer who knows and deals with IP issues and is willing to work with smaller cases. The infringer has no defense - the cases are open-and-shut slam dunks in court. If you're talking about an individual with no assets to pay a judgement, that's one thing - but a big company is another. They likely have an 'errors and ommissions' insurance policy to cover this very thing.

If anyone would like, PM me and I can give you some info.

 

[Dave Gallaher]

Dave, just for your FYI and anyone else on here who produces any type of intellectual property: It is a misconception that pursuing IP infringements is expensive, risky or otherwise not worthwhile.

Thanks, Dan.

In essence you are correct, but in entertainment law it is very different. They have huge legal departments staffed with attorneys who specialize in stalling cases like this to beyond profitability for a plaintiff. You can't realistically go after a multi-national corp with a local patent attorney, no matter how good he/she may be at collecting from publishers and insurance firms.

Entertainment lawyers of the type I would need are in the $300+-per-hour price range. I know--a previous band sued RCA/Salsoul for copyright infringement when they released an album (disco, of all things) bearing our name, and broke it first in the Florida/Southeast market where we had established (and legally trademarked) the band's name. We hired the guy who negotiated Willie Nelson's film deal (Honeysuckle Rose) and he won the case for us. End result: RCA had to recall and repackage the albums with an altered name; we collected no damages or restitutions; and we spent several thousand dollars in fees. This was in the 1970s and it's gone up considerably since then.

Add to this the factor that the box set has not been released into the US market and it becomes even more difficult. Our 'hit' album was leased and re-packaged by a French label in 1996 that has never had to account for European sales, though the album's producer did cause all our US royalties to be paid by threatening to subpoena the US label's manufacturing records.

 

[Craig Maire II]

My YouTube Account, Historic Tornado Videos

I have read many posts on here and I am by no means defending this kid but was wondering, doesn't a person or group have to officially patent or trade mark their materials, videos etc.to have said "protection"? ( not saying anyone on here hasn't done that) Also, the only legal recourse I can see that might get any money from a "thief" etc. without spending hundreds if not thousands of dollars on lawyer fees would be in civil court? Where at least in Iowa you can sue for up to 5,000$ before it has to go to district court and a person needs a lawyer. (I plan on surprising a piece of garbage who brutally and cowardly attacked me while I was at a party last year with a civil suit just before the 2 year anniversary of the 'event" (I do know that in Iowa a person has up to 2 years to file a civil suit from the time that an incident happened). Note! This post in know way justifies, condones, etc. copyright infringement and the person or persons who commit these acts but with all the talk of lawsuits, copyrights etc. I thought I'd bring these issues up.

 

[Ryan McGinnis]

Craig:

Nope, you don't need to register anything to be protected. Registering makes it more lucrative and easier to sue, as the infringer has to pay your attorney fees and court costs on top of increased damage penalties, but you can sue without registering. It usually make a lot less sense to do so, though, unless it was a huge infringement by someone with deep pockets. Copyright cases immediately go to federal court (unless stipulated in contract otherwise), which is Expensive with a capital E several font sizes too large for this forum.

To be fair, much like the old adage that you can't squeeze blood out of a turnip, it's unlikely that anyone could recover any real money out of this kid, unless his parents are rich or something. One could hypothetically sue Google, but that's right up there with giving Mr. T a noogie: probably a bad idea.

 

[Craig Maire II]

Ryan wrote:

"Copyright cases immediately go to federal court (unless stipulated in contract otherwise),"

So does that mean that most copyright cases immediately go to FEDERAL court? (no matter how small?) I don't see how that could be true? (not calling you a liar but am wondering about this statement) Wouldn't that clog up our wonderful and very efficient federal court system? Also, if an individual (not a corporation, company etc.) did get this to federal court I'm pretty sure that the person who is suing would need a lawyer? (those folks get a little expensive, trust me I used one to fight a speeding ticket, and I still lost plus spent plenty of $$!)

 

[Bob Hartig]

Can't say how copyright cases are resolved, but copyright itself is granted via federal law. Legally, copyright belongs to the creator of any recorded work--recorded meaning there is a verifiable, set record of it, whether it's a book manuscript, an audio file, a videotape, whatever, that sets it apart from a mere concept or a performance--at the time the work is completed. The virtue of registration lies in having a means of proving one's claim to copyright. There are other ways people use, but it just makes sense to anchor your paper trail at the copyright office.

 

[Ryan McGinnis]

Ryan wrote:

"Copyright cases immediately go to federal court (unless stipulated in contract otherwise),"

So does that mean that most copyright cases immediately go to FEDERAL court? (no matter how small?) I don't see how that could be true? (not calling you a liar but am wondering about this statement) Wouldn't that clog up our wonderful and very efficient federal court system? Also, if an individual (not a corporation, company etc.) did get this to federal court I'm pretty sure that the person who is suing would need a lawyer? (those folks get a little expensive, trust me I used one to fight a speeding ticket, and I still lost plus spent plenty of $$!)

Tis true, sadly. Copyright law is federal law, and there is no such thing as a federal small claims court. I say sadly because there would be a lot more actionable cases out there if the barrier for suing weren't so high. The ASMP has been trying to get Congress to create a small claims court process for copyright claims, but with no luck as of yet.

http://www.stockasylum.com/text-pages/articles/a6sp032006-smallclaims.htm

That said, if you register your work and the infringer has deep pockets, the current system works to your advantage. Because the infringer has to pay attorney fees and court costs if they lose a case where the work was registered, and because statutory damages can be in the six figures range per infringement, all most all of them settle long before they get to court. It's rarely a gamble worth taking.

I am not a lawyer, of course. Though, if you want to read the blog of an IP attorney (which is chock full of great info for photographers and videographers), check out http://www.photoattorney.com/ .

 

[Ryan McGinnis]

Can't say how copyright cases are resolved, but copyright itself is granted via federal law. Legally, copyright belongs to the creator of any recorded work--recorded meaning there is a verifiable, set record of it, whether it's a book manuscript, an audio file, a videotape, whatever, that sets it apart from a mere concept or a performance--at the time the work is completed. The virtue of registration lies in having a means of proving one's claim to copyright. There are other ways people use, but it just makes sense to anchor your paper trail at the copyright office.

BTW, those "other ways people use" are urban legends. Sending your work to yourself in a certified mail envelope, for example, will do you exactly zero good in a court case. (See the U.S. Copyright Office FAQ.) There is only one way to register your work in a way that holds any official weight, and that's through the copyright office's registration process. It's not the end of the world -- you can register a DVD with tens of thousands of unpublished photos for $40. I think they're rolling out online registration soon, too, so you can just upload stuff and skip the mailing and the filling out of forms part.

 

[John Diel]

For those that are wondering, inquiring minds wanted to know:

§ 501. Infringement of copyright2

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term “anyoneâ€￾ includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.
(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.
(c) For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station.
(d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter whose transmission has been altered by the cable system; and (ii) any broadcast station within whose local service area the secondary transmission occurs.
(e) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 119(a)(5), a network station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station.
(f)(1) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station.
(2) A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122(a)(2), to enforce that television broadcast station’s rights under section 338(a) of the Communications Act of 1934.

 

[Jeff Miller]

I think a great way to approach this is for someone to make a chaser-geared website educating about copyright infringement. There's a ton of websites out there about chasing and storm reports but to my knowledge none of them approach it with that slant. The do's and dont's of photography, video and copyright infringement and such like that. Such a website is needed IMO. - a website thats flashy, good looking yet stern and tells it like it is.

Even a YouTube montage produced by chasers to warn about infringement - that would work as well.

And perhaps something everyone who produces YouTube videos should do is add a Copyright Infringement WARNING that lasts a good 20 seconds in front of all productions that are on YouTube that tells in NO UNCERTAIN TERMS - don't take, steal, or post if it's not yours.

Kids aren't going to know if someone doesn't step up and tell them. Just my opinion.

 

[Gerrit Gulden]

Excuse me for taking the lazy approach with this question. As I read earlier in this thread

Nope, you don't need to register anything to be protected.

So all the Photos I have taken along with video are protected (copyrighted) even tho I have not literally filled out all the forms necessary? If this is the case I feel alot better. I had been wanting to Copyright all my work but the paperwork seemed endless to complete the process. I do understand that Doing the paperwork will ensure a better trial for copyright infringement but at least I still have a chance to fight and possibly win.

What is your take on Non Official copyrighted material. Has anyone had problems pursuing a case due to unofficial copyright status. Also at what point did those of you finally decide to get your work officially Copyrighted?

-gerrit

 

[David Drummond]

Your work is copyrighted the moment the moment you hit the record button. If you got something REALLY good, file it right away anyway, it's really not very hard. If it's just general stuff, dump it all on a data DVD or a few of them and file it as a compilation monthly, or at the end of the season, depending on how much you shoot.

I started officially filing my stuff when someone riding along with me tried to claim rights to it just because "I was there too".

 

[Dan Robinson]

Usually, the federal court issue is irrelevant, because most corporations will opt to settle a case rather than have it go to court. That is, if they have an on-staff legal counsel who knows what they're doing. Any attorney knows that when the company he represents is caught in an infringement, they're pretty well done for - and it's cheaper to settle than go to court. There is no legit defense that they can ever come up with that would hold up in court, and their lawyers know it.

The myth of legal expense is what keeps people from protecting themselves and fighting for their work and their property. There is no such expense with an attorney working on a contingency fee basis, which is the main thing to look for when finding a law firm to work with.

Dave, I don't understand exactly what happened in your case, and I am in no way meaning to insult the copentency of those attorneys - but it sounds like what happened to you is utter baloney. Your attorneys should have easily been able to recover damages. No corporation, no matter what industry, is going to be immune to consequences for infringement. I'd check with a few other attorneys. Several chaser friends of mine have gone after some very big corporations and had no trouble getting results.

It IS important to register your work with the Copyright Office. That way, you'll have power to cover legal fees and seek damages over and above the value of the work. If you're using an attorney who works on a contingency fee basis (as I mentioned before) you won't have to pay the hefty federal court fees. That will be covered by the defendant when they lose the case (and they will).

An easy way to register a lot of material is to make a 'best of' highlights tape and cram as much stuff on it as possible. It doesn't have to be professionally produced and edited, just string your best clips together, slap a title on it (IE, 'Storm Chase Highlights by John Smith') and send it in. Then you've got all of your stuff registered for one $45 fee.

It is EXTREMELY important to protect your work this way. If you don't, it will keep getting stolen. The reason it's getting taken is because it has value! If it were worthless, no one would want it. Someone taking your video is like someone taking something off of a store shelf and walking out. If a shoplifter gets caught, he doesn't just get a verbal warning and get asked to pay for the item or to just put it back. No - he goes to jail and pays a hefty fine and court costs over and above the value of the item(s) he stole.

The bottom line is that the laws are in your favor as a photographer / content creator, so take every advantage of what you're duly entitled to.

 

[Chris C Sanner]

One other thing on IPs and such which I have no idea if it's been discussed in detail here or not. But when someone submits a video to YouTube their IP is automatically recorded in the DB along with the video. Tracking an IPs origination is a very simple process for the people "in the know" most of the time and usually the person infringing blatantly enough to be caught is not very smart.

Even running VBulletin I have been able to get people's access to the internet from a certain company removed for breaking their ISP's use agreement and that's just me doing some detective work

So if you get told by a Lawyer it's not worth your time tell that Lawyer you are taking your business elsewhere. I am planning on publishing my videos within the next couple of months and when I do if I see someone using them without permission I will be going after them regardless of who they are because I take extreme amounts of pride in my creations. But there's a bit of info for you guys who may still be skeptical.

 

[Jeff Miller]

Slide

I have produced a copyright warning slide that can be placed as an opening title to any and all YouTube Productions or media productions. This gives absolutely no leeway or "grace" to infringers. Interested chasers or video producers can feel free to snag this warning slide and use it freely without notification or permission. Open use without exceptions. Space is open at the bottom to place your presentation title, company, etc. It has been said the kids just don't know or understand. With this warning, that can no longer be an excuse.

I hope it can come in handy for some. If not, I can only hope you will produce your own similiar warning as a tactic to help people realize what they are doing.