Category: copyright

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What To Do, part 2

So you’ve found a probable infringement and you’ve gathered all the evidence you can (see previous post), now what? You have choices[1]: do nothing, contact the infringer yourself and send an invoice, contact the infringer yourself and send a cease and desist/demand letter, send a DMCA takedown notice to the infringer’s ISP[2], or contact a lawyer.

Of course, I’m going to say “contact a lawyer” is your best option (um, duh!), but I’d like to discuss the other options a bit here, too.

First, I think that doing nothing is not a good option, with one exception: if you are so utterly risk-averse that you can’t bear the slightest chance that you may end up in court over the illegal use of your work, then sit on your hands and seethe, but do nothing. That is, if you do anything else like the options described below, you do run a small (and usually is a very, very small) risk that the other side will file suit against you for declaratory judgment that it did not infringe. This is really rare because copyright infringement is strict liability and so, unless you missed something like a license granted to the infringer, it’s a loser case for the infringer. I had this happen once–the infringer tried to use it to scare off my client. Didn’t work and, not too much later, we negotiated a settlement that my client was quite happy with (plus, my client saved the cost of filing the suit). Still, if you don’t want to face the generally tiny possibility of going to federal court, do nothing.  Otherwise, read on.

Some people suggest sending an invoice to infringers, but I don’t encourage that. It’s likely you will undervalue the infringement and maybe even miss additional claims that will add value to the overall matter, so you sell yourself short. Worse yet, an invoice sent will virtually neverresult in you getting a check for your invoice’s full amount. At best, the invoice will be a start to a negotiation; but, if you’ve already undervalued the matter and then you end up at, say, 50% of that, you’re bleeding money. You also set your price without knowing all the facts and that could bite you if you end up in court later. Nope, invoicing is not a wise idea in most cases[3].

Similarly, I generally don’t encourage creatives to send cease and desist (aka demand) letters of their own drafting because they usually (of course, accidentally) screw them up because of language errors as well as under-valuation. If you don’t know the law, you may  (as mentioned above) miss legitimate claims that add to the value of the matter and you could end up offering to release a $25,000 claim for $5000.

As for language, there are two main areas of concern: misusing legalese and slipping from legitimate demand into extortion. The latter, first: “Pay me $10,000 or I’m going to go public with what a thief you are!” is going to get you in trouble but a demand for $10,000 to settle the claims is not inappropriate if the facts support it.  The line isn’t so obvious sometimes and, since anti-copyright folk scream Extortion! at any demand, you want to be sure you don’t actually cross that line.

Using legal language incorrectly happens often and often it is by people who are very smart but, not being attorneys, they have no clue that using certain words means something different in a legal context (like published in copyright law, for one example). To paraphrase Inego Montoya, “I do not think those words mean what you think…” and that can get you in trouble when the other side lawyers up.

Another error in artist-drafted letters is you can be a doormat: “I’m sorry, I’m sure you didn’t mean to, but you used my work. Would you be willing to pay me $100?” is differently but arguably just as bad as accidentally extorting the infringer. You’re undervaluing the infringement and groveling…ick! Overall, unless you have a form letter drafted by an attorney and you are very confident in evaluating your cases for all the potential claims and their damages, I encourage you to refrain from drafting and sending letters yourself.

Moving on… sending a DMCA takedown notice to the ISP is a tool you can wield, and it will probably get the infringement stopped, but it does nothing about getting you the money you deserve for the illegal exploitation of your work. Usually, I think it is better to notify the actual infringer first (as a part of a demand letter) and then, if it doesn’t remove the work, send the takedown notice. This can be a strategic choice that is worth evaluating with an attorney too as, for example, continued use after notice can be a factor for willfulness. Also, you do want to be sure to send a technically proper notice, if you choose to send one at all.

That brings us to the final option: contacting an attorney. A competent copyright attorney will avoid the issues described above, will evaluate your claim(s) and your opposition’s potential defenses, and will advise you on your best course of action. We have to–there are rules (actually, laws[4]) that demand it of us. So, as opposed to companies[5] that claim to help you with your registrations or infringements, attorneys, once hired, must put your best interests first, including above our own. It’s part of why we have to be licensed–to provide competent counsel to our clients.

While we attorneys can’t take every case that is brought to us, we are required to hold your information confidential even if we don’t take the case so it is worth talking with one of us before you do anything.

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[1]As long as it is still less than three years since you discovered the infringement (in most cases/places), you have options. The statute of limitations is 3 years for infringement and usually that clock starts ticking when you discover the infringement. Don’t wait until the last minute.

[2]DMCA takedown notices do not go to infringers but rather to the ISPs that host the infringement. For example, if I were an infringer of the post office photo I showed in my last post, the author of the photo would send the notice to my host, not me. It gets the work removed and gives the host/ISP a legal protection (safe harbor) against being sued for infringement, but the author could (and arguably should) still go after me as the actual infringer.

[3]An exception may be with an existing client who has used work beyond the scope of a license; then, for a continuing-business-relationship reason, an invoice may be wise.

[4]See, e.g., Cal. Bus. & Prof. Code §6068, including sub-section (g) that says an attorney must not “encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.”

[5]Companies are required to make as much money as they can for their shareholders, first and foremost.

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What to Do (Collecting Evidence)

When one finds one’s work being used by someone without permission, much less payment, there are some things to be done besides just swearing about it. Before doing anything regarding the infringer, especially before contacting it, do the most important thing: collect all the evidence.

If your work is appearing in print someplace, or in 3 dimensions (depending on your art), take copious photographs of it. Try to get close-ups and photos of the context (in a bank, on a billboard, etc.).

If, say, the work appears on a product, note the store where it is being sold and ask the manager for the name and contact information of the supplier, if it’s not a company you recognize. You can also buy example products (or publications) bearing your work, if that is an option.

Online? Make screenshots. Get the whole page if possible (try an app like Paparazzi) and also try to get a screenshot showing as much of the URL as possible while also capturing the infringing use. When you do that, however, make sure to hide your favorites and close all other tabs–you want a clean example of the infringement[1].

Got the shots of the work on the public-facing pages of the site? Great, now find it on their servers. In Safari, go under Develop>Show Web Inspector and you’ll see a folder called Images. Here, I have a screenshot looking at this site that way where I’ve ID’ed a photo of the La Jolla post office I made (selected in the screenshot below):

Double-click that highlighted icon and it will open the link to the work as it appears on the infringer’s server (here, on my server). Get screenshots of that as well and note the URL(s).

Okay, now do you use metadata in your images? Please say you do. If so, then check the metadata on the infringing photograph–see what has/has not been deleted or altered. Preserve that evidence as well (make pdfs of the results, for example).

Finally, for web-related infringements, preserve the infringement on the Wayback Machine at archive.org. You do that by checking to see if the page is there already (and do this for the front-facing pages and the server pages); if it’s not, then you’ll see that you can add it. Here is what I got when I put in the URL for the server page holding my post office photo, for example:

Once you’ve done all that you need to find, in your own records, your copyright registration for the work and copies of your deposit copies. If it’s not registered and it is still within three calendar months of your first publication of the work[2], register it immediately[3]! Also note where you have licensed the work to be used and where you have published the work yourself (exact URLs for everything–not just “on my site”). Basically, think of every place that your opposition may have found the work and note the URLs.

Put all of the above into a folder for that infringement, before you do anything like contacting the infringer.

Yes, this all is some work, but evidence is so important that it is totally worth it. I can’t begin to tell you how many times someone has contacted me with what sounds like a great case but, because s/he hasn’t preserved evidence of the infringement, there is noting that I can do for her/him. I may know it is an infringement, but if I can’t prove it, there is nothing I can do for you.

So, once you have all the evidence, then you can decide what to do about the infringement itself. In my next post, I’ll talk about your choices.

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[1] No reason to give anyone any personal data accidentally, like that you also were looking at porn or something (yes, this happens).

[2] Remember that “publication” has a different meaning under copyright law here so if you offered it to a client for its use, even if it wasn’t used, then it is published. Also, posting the work on a site where you say, basically, “you can license this work” is publishing. However, just because you posted it on your portfolio site (no offer to license) does not make it published. If you aren’t sure, ask a copyright lawyer, not your creative buddies, for advice.

[3] If it is too late, then your options are limited for how you approach the infringement, since your remedies are limited, but it still may be worth pursuing.

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Blockchain is for Blockheads

Remember what I wrote recently? Seems a respected investment hedge fund agrees:

The use of blockchain in operating an image copyright platform accomplishes nothing. KODAKOne intends to utilize smart contracts and a crypto-asset to solve the problem of copyright infringement, but the business idea is flat-out silly. Cryptographically hashing an image into a blockchain doesn’t prove the provenance of intellectual property, a blockchain does not reduce the resources necessary for copyright enforcement […]

It’s definitely worth reading the whole original post on this, from the UK’s Mr. David Gerard, as he shares more on what a total scam blockchain is for photographers overall.

Look, if you want to protect your copyrights, REGISTER your work with the USCO and hire an attorney to go after infringers (it costs much less than you may think).

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Exclusive Licenses and Your Business

Have you ever granted exclusive rights to your work? If so, I sure hope you got paid enough for it because you may not be able to sue for infringement of that work. Maybe. It depends. Language matters and this is (likely, surprisingly) technical stuff.

A new case doesn’t help; actually, it kind of muddies the water and I’m sure it will be debated by lawyers in filings and cases to come. In Fathers & Daughters Nevada, LLC v. Lingfu Zhang, Case No. 3:16-cv-1443-SI (D. Or January 17, 2018) (“Zhang“) the court split a fine hair about standing and exclusive licensing and it has some copyright owners and licensors[1] worried.

Get popcorn, this is going to take some explaining.

Courts require something called standing in order to sue (for any suit). Standing roughly means that the plaintiff is the person who was harmed/affected by the defendant’s illegal actions. If you get punched by a jerk in a bar, you have standing to sue the jerk for assault and battery because you were put in fear and physically harmed. Your friend who, from across the room, saw the jerk hit you? She does not have standing to sue the jerk for assault and battery for that punch, because she wasn’t actually harmed by it[2]. Got it? Good.

Now, a bit about copyright… it is often described as a bundle of sticks where each stick represents an exclusive right. That bundle actually consists of six big sticks: one for each of the rights listed in the statute[3]: to reproduce the work, to prepare derivative works based upon the work, to distribute copies of the work, to perform the work publicly, to display the work publicly, and to record and perform the work by means of an audio transmission. Each of those big sticks is made up of its own sub-sticks, and they can be very specific sub-sticks. For example, the right to reproduce can be made up of the sub-sticks “the right to reproduce the work in print,” or “the right to reproduce the work in the USA,” or “the right to reproduce the work for 6 months,” or those sub-sticks can be combined into the stick “the right to reproduce the work in print in the USA for 6 months.”

It’s an imperfect metaphor, but it’s about as good as we can get and it’ll be helpful here.

Anyway, an original owner of a copyright owns all these sticks[4] and can share any of them by non-exclusive licensing. After granting a non-exclusive license, the copyright owner still holds the stick. The licensee doesn’t get the stick but the license means s/he/it can’t be hit with that stick now, so to speak[5].

However, (and here’s the thing I bet you didn’t know) when an owner grants an exclusive license for any of these rights, these (sub-)sticks, s/he is handing that stick over to the licensee–and (often) letting go of it. The statutes and case law say that an exclusive license is tantamount to ownership of the right conveyed in the license[6]. For example, if you grant the exclusive reproduction right in print in the USA for 6 months, you no longer own any right to reproduce the work in print in the USA for that 6 months.

Now to bring the pieces together… to bring a suit for copyright infringement, to have standing to sue, a plaintiff has to be the person who owned the rights actually infringed at the time of the infringement. In other words, the plaintiff had to have that particular stick when the infringement happened. Let’s look at some examples to make that clearer.

Example 1
Betty makes an illustration and grants a non-exclusive license to Forbes for display use on its website for 6 months only. Sometime during those 6 months, BloggerBob copies the article and the illustration and displays them on his own website. Forbes cannot sue for infringement of the illustration[7] because it only has a non-exclusive license and Betty still owns the exclusive right. Betty still has the stick for website display during that time and so she has standing and can sue BloggerBob for the infringement.

Example 2
Betty makes an illustration and grants an exclusive license to Forbes for display use on its website for 6 months only. Sometime during those 6 months, BloggerBob copies the article and the illustration and displays them on his own website. Forbes can sue for infringement of the illustration because it has an exclusive license for website display for those 6 months! Here, Betty does not own the exclusive right any more–she has handed that stick to Forbes for the 6 months–and so Betty cannot sue BloggerBob for that infringement.

Example 2a
Now, just because Betty has handed a stick to Forbes doesn’t mean she didn’t keep all the other sticks. During this same 6 month Forbes license window, Tony Tshirt illicitly prints Betty’s illustration on clothing and sells the items. Betty (not Forbes) has standing to sue Tony for that infringement because he infringed on a different exclusive right that she still owns.

 

Okay, now here is where it gets uncomfortable and confusing. In a previous case[8] in the 9th Circuit (Minden, as well as other cases and in other places), the court said that a copyright owner can grant an exclusive license to a licensee and (wait for it) still keep that same stick–essentially saying both the licensor and the licensee have the stick, while excluding all others from having it. The terms of the exclusive licenses in Minden and these other cases included the owner retaining some the right explicitly or the licensor had something called “beneficial ownership” of the right (for example, was paid royalties based on the exploitation of the right granted[9]).

However, in the Zhang case I mentioned at the start of this post, the court said the copyright owner, when it granted an exclusive license for the right later infringed, gave that stick to someone else entirely and so didn’t have standing to sue. That is, they didn’t keep any of the stick for themselves (nor get any beneficial ownership), and since it was that stick’s rights that were infringed, the copyright owner could not sue. Ouch.

Yeah, I know, it sounds a lot like the same as Minden, but with a different outcome, but it isn’t, quite. The difference is very much in the wording of the licenses– technical stuff. Honestly, these issues are sometimes difficult even for attorneys to understand, and we are highly trained to understand them! Don’t feel bad if you don’t totally grok this stuff.

So why am I bothering to tell you about this? What does this mean for you as someone who licenses your work to others? Basically, you need to be very careful of your license language and, if you are going to grant an exclusive license especially, make sure you do it in a way that works for you AND that you get paid enough for it.

Too many artists just throw around words like “exclusive” without understanding that they could seriously impact rights and the artist’s livelihood. Don’t be one of them. Also, don’t sign contracts unless you fully understand all the terms and their effects.

Best practices would be to hire an attorney to draft your licenses and to read contracts offered to you by your clients. Yes, this will cost you some money but (a) you can write it off and (b) it may save you much more in the long run. Ignorance is no excuse, especially in court. Worse yet, when you throw around legal-sounding words without understanding their effects, you are still bound by their effects.

Remember: you are an artist who is running an arts-based business–you need to run it like the real business it is.

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[1] A licensor is someone who grants licenses to another party (that party is the licensee).

[2] I know someone reading this is going to say she could sue for something else, and maybe she could, but I’m not going there. Just roll with the example being limited to civil assault and battery.

[3] 17 USC §106

[4] A later owner, someone to whom the copyright was assigned (transferred) may very well own all of these rights, but it’s possible s/he/it may not. To use the favorite phrase of attorneys everywhere: it depends. It can get very complicated and I don’t want to go into all that here.

[5] I mean, a licensor can’t sue the licensee for a use covered by the license granted to the licensee.

[6] 17 U.S.C. § 501(b); Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F. 3d 997 (9th Cir. 2015); Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 890 (9th Cir. 2005); etc.

[7] Forbes’ rights in the article may be an entirely different story–I’m only discussing the illustration here.

[8] Minden, 795 F. 3d.

[9] Broad. Music, Inc. v. Hirsch, 104 F.3d 1163, 1166 (9th Cir. 1997).

 

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New Rules! (for photo © registrations) UPDATED

Back in December of 2016, the US Copyright Office (USCO) proposed new rules for group photo registrations, including significant changes to registering a pile of unpublished photos. I wrote about the proposed rules then. Now, the final rules are out and they mostly match up with the proposed ones, but not completely.

The new rules make two categories of group photo registrations (leaving out databases, which are a different kettle of fish and most individual artists will not have to address those, so I’m skipping them here). The two categories are GRPPH for Group (of) Published Photographs and GRUPH for Group (of) Unpublished Photographs. Now, most of the rules are the same for both, making life a little easier as you will have to learn, essentially, one system.

First, though, you’ll notice that you still have to keep published and unpublished separated. The USCO looked at the issue and they simply can’t change that as it is not a “rule” but rather part of the law itself. The USCO has the authority to create and modify rules, but it can’t change the underlying law or create rules that conflict with those laws. It does sound like they think the split should be dropped, though, so maybe that will come sometime in the not terribly distant future?

Oh, and about the unpublished photographs… you will no longer be able to do the unlimited number of photos as a collection option. It is GRUPH only from here out.

Anyway, the new rules… first, the commonalities. These are the rules for both groups:

  • must have a title for the whole group
  • must have titles for each photograph in the group (can be just the file names, but with character restrictions)
  • limit of 750 photographs per registration
  • all photos must have the same author[1]
  • must register online–no paper registrations will be accepted
  • must pay the $55 fee
  • must submit digital deposit copies (jpeg, gif, tiff only), preferably in an uploaded .zip file containing all the photographs (that must be <500 megabytes total[2]);[3]
  • must submit a separate document that lists the photos in a very specific manner (more on that below) that should be included in the .zip file.

For published photographs, the pilot program is ending with these new rules. If you’ve been a part of the pilot program, the USCO should be contacting you about the changes. As for the registration differences, published photos have these additional rules: they all must be first published within the same calendar year (i.e., 2015 or 2018, etc.), same as the current rule; but, and this is new, they do not have to have been first published in the same country. Also, you will need the date of first publication for each photograph.

Now, about that list document… this is going to be a bit of extra work, but it really will be helpful in the case of an infringement as all the information about the deposit copies will be easily accessible. For this document, which the USCO says should be either xls (an Excel file) or a pdf, there are nitpicky rules. I suggest making a template and sticking to it.

First, the document itself must be named in a very specific manner: the title of the group plus the case number assigned to the application by the electronic registration system. Yes, that means you can’t name the document until after you have created the application online and get a case number, but you can still prep the document (that will be uploaded with the deposit copies) and have it ready, just add the case number to the title. An example for a group registration of unpublished photos that Photo Betty is making from her trip to Hawaii might be Group Unpublished Hawaii Photographs Case Number 123456789.xls. Or, for published photographs from the same trip, Group Published Hawaii Photographs Case Number 987654321.xls.[4]

The contents of the document need to be, in order:

  • sequential numbering (i.e., 1, 2, 3…)
  • title of the photograph (this may be the same as the file name)
  • file name of the photograph (no characters other than letters, numbers, and spaces).

So, for example, the contents of the document for unpublished photos might look something like[5]:

  1. title: Maui at Dusk 1 file: Maui1.jpg
  2. title: Maui at Dusk 2 file: Maui2.jpg
  3. (etc.)

If the photos are published, then you add the date of first publication. So, the example above, if Betty published them on her stock photo site on January 15, 2018, would be:

  1. title: Maui at Dusk 1 file: Maui1.jpg pub. date: 1/15/2018
  2. title: Maui at Dusk 2 file: Maui2.jpg pub. date: 1/15/2018
  3. (etc.)

That’s it and, really, it’s not that terrible.

More importantly, the rules specifically state that photographs registered as a part of one of these groups will each be individually covered by the registration. That is a very big deal. That eliminates one of the biggest arguments defendants make–that is that any one photograph is only a tiny part of the whole registration and so the damages must be less or, even, that fair use applies. Nope, now it will be clear that each photograph in the group gets the full measure of damages and is fully protected as its own self (not a part of a greater whole). Huge benefit there, especially for unpublished photos where this has been a particular problem.

These new rules go into effect on February 20, 2018. For the detailed information, go here (pdf).

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UPDATE: The USCO has come out with help pages that include links to templates (Excel) for making the lists. Go here for unpublished and here for published.

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[1] “Author” does not necessarily mean “photographer” although it can. If you are an individual photographer then you are the author of your photos. Easy-peasy. However, for studios with multiple photographers and other employers of photographers, the employer is the author of all the work, even if created by multiple photographers.

[2] The photos may be compressed to fit the file size requirement.

[3] You can send flash drives or DVDs or similar instead, but it’s really easier (and much faster to get your certificate) to upload the files.

[4] While the rules do not specifically say you must say “group” in the title, it has been preferred that one do that and I suspect that preference will continue. It won’t hurt to use that format so I suggest sticking to it, at least for now.

[5] The new rules state that the information I note must be included, as I have it here, but it doesn’t say what the preferred format is. This is a best guess for how they want it from the description in the rule. I expect the USCO will clarify in the instructions on their website soon. For example, maybe the Excel sheet can have the words “title” and “file name” (and “pub date”) in the column headers rather than in the text.

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Blockchain Copyright Services: Seductive, but Unwise

Kodak is joining the list of companies offering blockchain-related services for photographers. While I applaud the idea of photographers getting paid, I’m not a fan of these services. Mostly, the financials are not, in the long run, good for photographers.
Not by a long shot.

I know exactly what many people are going to say: without much effort, photographers will get paid for uses they didn’t get paid for before. Thing is, that may not be true at all; and, even when it is true, the amounts will be less than they could get if they pursued these infringements, and they are infringements. Most of all, photographers will be giving up way too much for the convenience these services are selling.

Let’s back up a bit and look at the process and the financials…

First, a photographer makes a photograph and registers the copyright in it using one of these services (any of ‘em–let’s call our hypothetical company “Block,” just for ease). Block submits the registration to the USCO and, hopefully, doesn’t make any significant error on the registration application (this is the first problem, in my book, because registrations are not just “fill in the blank” easy and if it gets screwed up… ouch). Anyway, Block also assigns the work its unique ID via blockchain. It also incorporates all sorts of things that sound fabulously whizbangy and techno-impressive, like connected thumbnails of the deposit copy and the registration.

The big selling point is that the services will patrol the interwebs looking for your image and, if the image is used, will pursue payment if previously unlicensed. These uses are billed for, through Block, who then collects on these “post-use licenses” in part because the blockchain ID will “authenticate” the image.
In theory.

The reality is not so fabulous.

First, what the hell does “authenticate” even mean here and what good does it do? I mean, seriously, is an infringer going to bend over and pay just because you have blockchain proof it is your registered-copyright photo and, thus, that they infringed? Nope. No more than infringers do now when confronted with existing forms of evidence (evidence, by the way, that has been used by courts long before blockchain came into being[1]). Infringers, and these are infringements we’re talking about, will refuse to pay just as they do now.

Maybe there’s one exception: infringers might pay more often, but only if the amounts demanded are tiny. This is the business theory, at least, for these companies: they will collect something for more of the infringements and that those amounts will add up. While this is great for those companies, who will make lots in volume, this is short-term thinking at best for individual creative pros (who will not make it up in volume and who lose more…keep reading).

Let’s say that Block bills a whopping $50 per blog use infringement (again, they are calling it a “post-use license” to sell it to the infringers, because it sounds nicer than calling them infringers). If you are a pro, I think you should NEVER sell a license for $50. Ever. Even for a personal blog use. It lowers the value of your work. I don’t care if it’s used on some tiny not-for-profit or personal blog, if you are a pro, a license to display your art is worth more than $50. But still, let’s stick with that amount (which, I suspect, may even be high for these services) because, at that number, Block (etc.) will get a bunch of these “sales.”

The individual artist, however, will have to collect on 15 of these $50 “licenses” to earn the minimum statutory damages owed, under the law, for a single infringement ($750)[2]. Worse yet: I’ve heard that some of these “services” charge 45-55% of the fees collected (a ridiculously high percentage, by the way), so now you’re looking at double that 15, just to get the minimum the law says you must get for a single infringement of a photograph whose copyright was registered before the infringement. And remember, the first thing you did here was register the copyright with the US Copyright Office so, um, yeah.

In other words, you’ve done the (allegedly) hard part–registering the copyright–so why in the hell are you giving away all the financial benefits of doing that?!?

But it gets even worse on the financial side. Let’s say you, through Block, have granted a bunch of these $50 licenses for online use. In fact, let’s say Block even billed and collected $500 for a “post-use license” for use on a small business commercial blog (extremely unlikely, but still). Now, that same photograph gets used by MegaCorp on its website and, in the negotiations, MegaCorp says it will pay $2500 to settle–five times the largest amount you ever got for a license for that photograph. You know that the license is worth more like $10,000 so you refuse (assuming you can–the agreement with the service may have you waive the right of refusal) and the case goes to court. Not only is it very possible that the court will not award you more than $2500, because, in part, of your low price history, it is unlikely that you will collect attorneys’ fees since you refused what appears to be, in that context, a reasonable offer, pre-suit[3]. You have, in essence, set your value at almost nothing because Block licensed your work (post-use!) for almost nothing, over and over. Even if you have licenses that you have issued that are more valuable, you will have to fight it out in court because your own evidence shows you will accept less. Ugh.

Now, as if the financials could be balanced by the services provided, let’s look at the blockchain proof these services are touting: short answer is you don’t need it. Really, it is of no added benefit to you, although it might make Block’s work easier. Sure, if you are asking for essentially a micro-payment and can wave the evidence of registration, etc., at the infringer, you might get paid quickly. However, in fact, in some ways by doing this, Block (and thus you) is doing the work of the defendant and that removes a tactical tool for later (litigation) use.

For example, assuming you registered the copyright shortly after creation of the work, you don’t need to prove that the work is validly registered. Under the law, if you registered the copyright to the photograph before or within 5 years of its first publication, then the legal burden is on the defendant to prove that the work is NOT properly registered, not on you to prove that it is[4]. It’s expensive to get deposit copies and the defendant should bear those costs since it bears the burden of breaking the registration. So, actually, you aren’t making it easier for them to pay you, you are taking away some of the tools your attorney can use to pursue them.

Oh, and about “your attorney,” if you use one of these services you likely agree to use their attorneys for any litigation resulting from a use they found. Their attorneys are contract attorneys who are getting paid very, very little to handle your case. I know because I have been approached by and refused to work with some of these companies as the rates offered were unreasonable.

Finally, and not for nothing, at least Kodak is using its own cryptocurrency for payment. This fad is not a good thing, as Warren Buffet has noted, and I agree. There is way too much uncertainty in the values, including the very likely possibility of total loss. Get paid in real currency, if for no other reason then you know that it isn’t financing North Korea or human trafficking or other crimes[5].

Look, I totally understand that creative pros want the business side of their lives to be easier. Technology can help with that. It’s easier than ever to register your copyrights yourself and to track your works for infringements, again by yourself. If you don’t want to do the work of pursuing the cases, you can hire someone in-house to handle a lot of it, like a studio manager or even a (paid) intern. You’ll still end up way ahead of what you would get with these services. There are also lawyers like me who will help you, even for many of the small cases, and (usually) for a lower percentage than these services charge.

In my opinion, if you are a creative professional, you owe it to yourself to treat your business like a business, and that means making decisions not on the basis of “how easy is it?” but rather “what will benefit my business the most?” When it comes to infringements, that means not giving away the farm for seductively easy now.
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[1] Like, for example, you can (and should) make copies of the deposit copies yourself and keep them in your own files with the registration. The metadata in these files will authenticate them.

[2] For a timely registered work, statutory damages must be between $750 and $30,000 for non-willful infringement, and up to $150,000 for willful. 17 USC §504.

[3] Courts have wide discretion in the award of attorneys’ fees under 17 USC §505 and, these days, are less likely to award them if a plaintiff has refused an objectively reasonable settlement offer.

[4] 17 USC §410(c): In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.

[5] See, e.g., http://www.businessinsider.com/why-bitcoin-and-other-cryptocurrencies-will-inevitably-become-tools-of-the-rich-powerful-and-criminal-2013-12; http://www.springfieldnewssun.com/business/crime-and-cryptocurrency-how-local-criminals-use-bitcoin-illegally/ispfn3mqvwWcsPRI1AKC0L/; and, https://www.inc.com/will-yakowicz/startups-law-enforcement-agencies-catch-criminals-who-use-cryptocurrency.html

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Framing is infringement…

…at least in the Northern District of Texas. There, in a recent opinion (November 22, 2017), the court held that framing (aka inline linking or hotlinking) a work is copyright infringement[1].

This is a big deal for creatives and legal geeks like me.

See, particularly nefarious infringers have managed to get away with infringing by inline linking to a work and then claiming that they didn’t copy the work, so no infringement. Their defense is that they just provided the work on their site live/embedded/hotlinked/whatever, but the work was still hosted on the original (owner’s) site so, boom, no infringement.

This has always ticked me off as it sure seems like a clear violation of the exclusive right to display a work, provided for in copyright law[2]. Unfortunately, the courts haven’t been on our side about it. Scholars, yes (mostly), but the courts, not so much.

The big case defendants usually rely on was from here in the 9th Circuit back in 2007: Perfect 10, Inc. v. Amazon.com, Inc[3]. There, the court noted that someone has to make and possess a copy for an infringement to occur. For a website, that means a copy of the file must be on the defendant’s server, not still on the plaintiff’s but displayed on the defendant’s. Since then, however, courts have begun to take issue with that idea.
‘Bout time, I say.

In this new opinion, the court notes a copyright owner’s exclusive right to display a work and that “[t]he text of the Copyright Act does not make actual possession of a copy of a work a prerequisite for infringement. To display a work, someone need only show a copy of the work; a person need not actually possess a copy to display a work.[4]” It distinguished this case from Perfect 10 on the facts,  but also said that the court in Perfect 10, on this point, got it wrong.
Huzzah.

While this case doesn’t mean that every case with framing/inline linking will now be a winner for the copyright owner, it does open the door a little more.

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[1] The Leader’s Institute, LLC, et al. v Jackson, et al., Case 3:14-cv-03572-B (TXND 11/22/17) Doc. 195 at 21.

[2] 17 USC §106(5).

[3] 508 F.3d 1146 (9th Cir. 2007)

[4] The Leader’s Institute, Doc. 195 at 23, citing Flava Works, Inc. v. Gunter, No. 10-C-6517, 2011 WL 3876910, at *4 (N.D. Ill. Sept. 1, 2011).

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Words Matter

I’ve worked full-time in creative industries since I left my PhD program[1] in the late 1990s, long before I went to law school. I’ve taught the business-side of being a creative pro, at the university level. Law school added to my quiver of skills and knowledge, but let’s just say that I have an understanding of the professional creative world and the business world. If there is one thing I’d love to impart to all creative pros, it is this: words matter.

Sounds kind of flippant, but it’s not. When you let those whose interests are opposed to yours dictate the language used to discuss those interests, you start from a very weak position. In fact, you may have already lost.

In that context, there are two words that immediately spring to mind that creative professionals must stop using: content and plagiarism.

Let’s start with the latter first: plagiarism is not a synonym for copyright infringement and we must stop using it as such. Plagiarism is a failure to attribute the original creator of something, usually words, cited in something else[2]. For example, if someone writes an article that includes:

Law school added to my quiver of skills and knowledge, but let’s just say that I have an understanding of the professional creative world

without noting that it was a quote of something I wrote, that would be plagiarism but it may or may not be infringement. Plagiarism is a passing off as one’s own work the work of another, and almost exclusively in the academic world, although it can appear in written work like journalism, too. In many ways, plagiarism has a closer connection to publicity rights (and definitely to moral rights, which we do not really have in the USA), since it is about attribution to the original author.

Importantly, if you take and use someone’s work and include an attribution to that person, it is not plagiarism…
…but it may very well be copyright infringement.

When we use plagiarize for infringe, we muddy the waters. A lot. This misuse leads to people thinking that they can use any work for free, just as long as they include a credit line or other form of attribution. It also contributes to the misguided notion that, if a work appears without a copyright notice or attribution, then it’s free to use.

I spend a lot of my time teaching infringers that hard (and, often, expensive) lesson; but what worries me is that the more people see attribution as a free-pass to use, use that is really infringing, the more likely Congress will enact laws reflecting that notion or courts will give it more weight than they ought in fair use analyses.

To protect against that, we must be diligent to use the proper words. For most non-academics, your concern will be about infringement, not plagiarism–call it by its correct term.

Turning to the other word, content, this one could practically drive me to drink.
Heavily.
Early in the morning.
Alone.

Using the word content is a great way to turn any creative work into nothing more than filler–something of no value itself. It also subconsciously makes the holder of the content into someone more important than the creator and even more important than the work itself.

Content reduces the value of your work to practically nothing[3]. Content gets shared (that is, freely displayed and distributed) on platforms[4] that don’t even value it enough to monetize it. Instead, these platforms monetize the data provided by the people who use the platforms. And those platform companies are all valued in the billions of dollars, because of that data they gather and sell.

The heartbreaking reality is that artists have been sold the idea that their content isnt really worth anything but that exposure of their content on these platforms will lead to riches. If your content trends, then some big company will call and offer you a huge contract to make art for it–lucky you! While that is vaguely possible, it is about as likely as winning the Powerball lottery. In other words, it’s business insanity to rely on that minuscule chance.

Sadly, each time you post a work on one of these commercial platforms, for free, for others to “like” or share, the only involved person/entity not making money from the exploitation of your work is…
wait for it…
you.

However, the reality is that what you create is of enormous value and should not be reduced to the notion of being filler (content). It is what draws users to the platforms! If you are offering your creative work on these platforms, free to share on those platforms (if not more broadly), you are giving away too much. Again, the art/photos/words/music you create is what draws users to the platforms and those users are what makes those platforms money! No content means no users means no money for the tech overlords or the advertising businesses that suck off their data teats.

Adding insult to injury is that by freely offering your work on these platforms, you are helping to train the average user of those platforms that your work is of no value. Your photograph, painstakingly created with a crew and lights and years of experience, is of the same value as any users pic of their cat, because you both got paid the same amount to post it on that platform. Same for your writing, same for your music, same for your illustrations. Courts think that way more than you know. AND, if your work is free on platform X, then why should anyone have to pay to post it on platform Q or, for that matter, on their blog or small business website? After all, it is only content and content is free stuff the purpose of which is to get freely shared. Try proving up the value of your work when you’ve been giving it away this way–it’s the stuff to give lawyers nightmares.

To be absolutely clear, no one will ever value your work more than you demand or more than you value it. When have you ever given an estimate to a client for a project and had that client say it will pay you double that amount? Call your work what it is, by its proper name: art, photograph, essay, book, song, composition, illustration, painting, whatever. Don’t let the tech overlords tell you what your work is or what it is worth by controlling the language.

Honor yourself and honor your creative work by using its proper name and insisting others do as well. Also, register your copyrights in your art, don’t give it away, and finally, go after infringers. It is your work, your creation, and you deserve more than just attribution.

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[1]Large parts of my graduate studies were in linguistics, by the way.

[2] See the Merriam-Webster Dictionary definition here: https://www.merriam-webster.com/dictionary/plagiarizing

[3] Worse yet, an artist or author of any stripe calling her/himself a content creator is tantamount to that person saying I make stuff of no real intrinsic or extrinsic value. Do not be that person.

[4] Platform itself means something higher than its surroundings, so the tech companies have taught us to value their works much more than the creative work on them.

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Copyright Small Claims: A Bad Solution to a Non-Problem

Many of you may have heard about the small claims copyright system that is being encouraged by several organizations. Many of those groups are artists groups and, while they have very good intentions, the idea of a small claims system for copyright is, in my opinion, a very bad one. It is a fix to a problem that does not exist. And, in exchange, artists are going to lose rights and remedies they should not give up.

Here’s the underlying argument that proponents of a Copyright Small Claims system share, over and over again: litigating a copyright suit costs a plaintiff at least tens of thousands if not over a hundred thousand dollars.

That argument is not correct in so many ways. Its a scare tactic and too many artists groups are buying into it. Allow me to explain the errors.

First, assuming that a case is litigated all the way through trial and judgment is an unfair metric for the average cost. Why? Because according to the Federal Courts own statistics (the most recent ones I found were for a 12-month period ending March 31, 2016), only .07% of all copyright cases filed are terminated (settled or a judgment is entered) during or after trial. To put that into more concrete terms, in that 12 months there were 4836 copyright cases filed in the USA; of those, only 32 were terminated either at trial (settlement after trial started but before judgment entered) or at the end of trial (judgment entered). In the 12 months ending March 31, 2015, it was 26 out of 4253 filed (.06%).

In other words, the chances that a case is fully litigated are incredibly slim! In fact, in the 2016 statistics, 37% of the filed cases are terminated before there is any court action and another 54% are terminated before the pre-trial phase (that is, by the close of discovery). So, 91% of copyright cases get settled by the close of discovery and virtually all the remaining cases settle before trial.

What does this mean? It means the cases that get fully litigated are really hard cases. Parties don’t take a case to trial unless either someone refuses to accept that s/he/it is sitting on a loser (rare) or there is a real question of how the matter might turn out (almost always). When there is a real question especially, then there are lots of experts and more extensive discovery overall and, well, of course the costs are going to be large!

But, going back to my original point, that just doesnt happen hardly at all. Instead, most parties are smart enough (or at least their lawyers are) to settle and to settle pretty early in the process. Usually there have already been pre-litigation settlement negotiations of some sort so when a suit is actually filed, the parties generally know that this is serious now and get their shit together and work it out.

Often, this just happens on its own. In my own experience, I’ve seen it happen over and over–a case gets filed after months of trying to get the defendant to settle, the defendant (finally) gets a lawyer, the lawyer wisely advises Settle, now! and we work it out. And we should, frankly. Most copyright cases are pretty clear cut and most of them should settle before suit is even filed but, if not, then shortly after.

When the parties don’t settle on their own, though, the federal courts have put in mandatory Alternative Dispute Resolution (ADR) procedures into the litigation process. These processes save the court time and money and it saves them both for the parties, too. For example, here in the Southern District of California, we have a Early Neutral Evaluation (ENE) system that means no later than 45 days after the defendant(s) file its answer(s), the parties meet with the Judge Magistrate to look at the case and try to work it out. Often the case will settle at the ENE and, even when it doesn’t, cases usually settle shortly after. This all happens before you get into discovery (or it has barely started in some cases) and so costs are very limited.

The second major error in the scary math is that proponents of Small Claims don’t mention that, overwhelmingly, plaintiffs win copyright suits that go to trial. The latest statistics I saw on that (2009) put it at over 80%. When you win a copyright suit, you may be awarded your attorneys’ fees and costs (assuming you have registered your copyright before the infringement). While that award isn’t guaranteed, courts tend to make that award when it is a smaller plaintiff (like an individual artist) bringing suit, particularly when there is not a really unusual legal question at issue and/or the infringer is a big company that should know better. So, if you go through trial you have a very good shot at winning and, if you do win, you have a shot at having much of the out-of-pocket reimbursed. If your attorney is working on a contingency-fee-basis, you haven’t even been paying her yet anyway (just paying costs, like filing fees, etc.).

Okay, to recap, filing and litigating a copyright suit usually does not cost a terrifying pile of money. It is rare when it does and most of those suits are complex cases (and, by the way, often ones with large corporate plaintiffs like a movie studio). Small artists don’t need a system to reduce those costs because it is unlikely any small artist will get hit with them by filing an action[1].

What do small artists give up if they use the proposed Small Claims system? They give up their right to a jury trial (very bad thing), appeals are very limited, and most disturbingly, the system would limit the amount of money they can win–in fact, the maximum is cut in half (again, assuming the work is properly and timely registered). That depression in awards will affect those who opt out of the Small Claims system, too, even though the rulings of the tribunals would not be precedential. Artists would be giving up way too much for a protection they don’t even need!

The final argument made for a Small Claims system is that attorneys won’t take on small matters on contingency. That is just untrue. Some attorneys might not, but I know plenty who do, including me. In fact, that was a big part of my mission in becoming an attorney: to serve artists. Sure I can’t take every case, but I take a lot of very small ones. If the work is timely registered and the defendant looks solvent, there is a good chance I’ll take the case.

So, rather than give up your rights, use them to your advantage! Register your works, find an attorney who will work with you (it doesnt have to be me–I can recommend others, too), and go after infringers.

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[1] Before you even go to the Monkey Selfie case and the photographer being bankrupted by it: the photographer did NOT file that suit–he has been the defendant in a suit filed by PETA.

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Don’t Lash Out

I heard about a case recently that made me think about all the people, especially the small artists, who get angry when they find a (potential) infringement and go onto social media to rip the, um, lets just call em badguys. Short answer is, even though you think it will help or at least make you feel better, youd be wrong. In fact, you could be inviting a lawsuit filed by the badguys.

Heres the very generalized skinny on the case (because really, unless you are a geeky lawyer like me, it is a dull read). One business (a kind of review site) publicly published that another business was a copyright infringer and that it had adult movies on its site. That arguably hurt the second business, so that onesued the first for various things that roughly amount to the business version of defamation. The court threw out that suit, under the California Anti-SLAPP law, which which exists so that people cant use the judicial system as a way to silence legitimate speech.

Okay, you may be thinking, the allegedly name-calling business didnt lose so whats the big deal? The big deal was that it wasnt a slam-dunk. Proving that the publication of something (potentially) defamatory was protected speech and that the lawsuit had to be dismissed under Anti-SLAPP wasnt easy. Similar cases have not been dismissed and you don’t want to be one of those.

Lots of people think they have a First Amendment right to say[1] whatever they want about whomever they want. Trouble is, that isnt so. There are limits. You cant defame someone (or a business), for example. And if someone sues you in California[2] for what you said, then, to get the case kicked out, you are going to have to prove that your speech was (1) an exercise of your First Amendment free speech right and (2) that it was made in connection with a public issue or an issue of public interest. Thats a pretty high bar to get over. In fact, youre going to have to show that the subject person (business) was famous/a pubic figure, or that the subject matter of the speech is of great interest to enoughpeople not affected by the case, or that the topic was of general widespread interest. Just because you and your drinking buddies think something is important isnt going to cut it.

After you, as the defendant in the original law suit, prove all that, then the other side (plaintiff in the defamation suit) gets a chance at a save–if it proves that it would probably win, then, even after you proved the above, the case will not be dismissed. See, not so easy.

So, going back to anaggrieved artist who tweets about the evil bastard Joe Doe who stole my illustration and then, worse, follows up with No one should shop at his store because he is a lying thief! well, that artist may be facing a lawsuit for those tweets and one s/he may not win. Think about that second part of the Anti-SLAPP–the potential save for the plaintiff–maybe Joe Doe had an implied license or a legitimate fair use defense that you, as a non-lawyer, didnt know would gut your infringement claim.

Better to sit on your tweeting/social media hands than run the risk of getting sued. Even if you did win, youd have to go through the unpleasantness of litigation. Instead, register your copyrights regularly and, if something gets used without your permission, talk to an attorney about your infringement claim and what your options are.

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[1] And by say I mean speech made in any medium–wrote, recorded, painted, shouted in a public space, etc.

[2] Some other states have similar laws.

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