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DMCA Takedown Notice

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Biletsky Law - DMCAIn 1998 the United States enacted the Digital Millenium Copyright Act (DMCA). The DMCA updated various parts of the then current copyright laws. One such provision that was updated was the Online Copyright Infringement Liability Limitation Act (OCILLA). OCILLA provides a conditional safe harbor for Online Service Providers and similar “middlemen of the internet” (think content hosting sites such as Youtube, Vimeo, etc.).

While there are many different parts of the OCILLA which provide certain protections from liability, this article will focus in particular on the Takedown Provisions. The Takedown Provisions require that in order for an Online Service Provider to be able to take advantage of the safe harbor provisions, they must comply with certain notices and in particular, any Takedown Notices. These Takedown Notices act as an easy way for content owners to be able to protect their intellectual property by notifying the service provider that their intellectual property has been infringed upon.

Once the content owner has made the service provider aware of the infringment, it is now up to the service provider to take action to stop the infringment. When a service provider complies with the Takedown Notice and removes the content, the service provider is deemed to have fulfilled their obligations under the law and they can then take advantage of the safe harbor provisions which protect them from being liable for the infringement.

If the service provider is made aware of the infringement and does not take action to prevent it, if such infingement is occuring, then the service provider may not be in compliance with the law and therefore may not be able to take advantage of the safe harbor provisions.

So how do you file one of these Takedown Notices? It is advised that if you do find out that your intellectual property is being infringed that you contact an intellectual property or entertainment lawyer immediately. However, to explain what the process is:

First, it is important to determine whether the content provider provides a way for content owners to send a Takedown Notice. Usually, this will be found in the very bottom of a website and will be under the “Terms of Use” (or similar worded page) or there may be a “DMCA” link. Within the terms or in the DMCA page, there will be a list of statements that must be sent to the service provider in order for hte Takedown Notice to be in compliance with the law:

Worded in one way or another, the following is required in order for the Takedown Notice to be effective:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Once a Takedown Notice which includes all of the above is sent to the servie provider, it is up to them whether or not to comply. Many of the larger service providers will have certain procedures in place to determine whether there actually has been infringement and whether they should remove the content.

While what goes into the Takedown Notice is pretty much the same for every service provider, each service provider has their own protocol for dealing with the notices. You may or may not receive any kind of confirmation or response. You may eventually notice that the infringing content has been removed, or not.

If you have sent a service provider a DMCA Takedown Notice but the infringing content has not been removed, it is important that you contact an attorney to take the next steps necessary to protect your intellectual property.

Has your content been posted without your permission? Contact Biletsky Law to ensure that your intellectual property rights are protected.

Happy Birthday Copyright

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Biletsky Law - Happy BirthdayThe timeless classic “Happy Birthday” has been around in some form since as early as the late 19th century. However, for the last 80 years, there has been an underlying ownership claim to the song which has required those who had performed the song to pay license fees or royalties.

First, a little background about the song “Happy Birthday.” In 1893 Patty and Mildred Hill composed a tune called “Good Morning to All.” Around 1912, lyrics were added to this tune and the song became “Happy Birthday to You.” Up until this time, there were never any registered copyrights for the song and it is even disputed if the song itself was written down anywhere. The reason that this is an important aspect of the story is that one of the requirements for a copyright to exist is that it be embodied in a “tangible medium of expression.” (See my blog post “WHAT’S IN A COPYRIGHT?”).

In 1935 a company named The Summy Company registered the copyright in a song entitled “Happy Birthday.” This copyright was then purchased by Warner/Chappell Music for an estimated $5 million.

Modernly, Warner/Chappell Music has aggressively protected what the Guinness Book of Records calls the “the most recognized song in the English language.” Synchronization licenses (a license to use the music in a TV show or movie) can cost thousands of dollars with willful copyright infringement coming with a hefty $150,000 penalty.

In 2013, a class action lawsuit was filed against Warner/Chappell Music to refute their copyright claim to the renowned song. The class action was brought by Good Morning to You Productions Corp. on behalf of the individuals and companies who had to shell out sometimes thousands of dollars to use the song in television shows and movies joined the suit. One of the main arguments against Warner/Chappell’s ownership is simple, that the original tune, made in 1893, is no longer subject to copyright protection.

Like most other laws in the U.S, copyright laws have evolved over time. The largest milestones in copyright law in the U.S have been in the years 1790, 1909, 1976, and 1998. Without going too specific into each law, copyrights under the 1790 law enjoyed a duration (how long they lasted) of up to 28 years. Then the Copyright Act of 1909 changed the duration to a maximum of 56 years. The modern 1976 Copyright Act changed the duration to the life of the author plus 50 years. Finally, duration was changed to where we are today, the life of the author plus 70. As you can see from the duration of copyrights above, a work that was copyrighted in 1893 would likely not still be valid.

As of now, the suit is slowly inching towards trial with motions having been heard as recent as March of 2015. Either way, this trial is likely to last for a while as the battle between one of the largest music publishers in the world continues.

For more information on copyright laws, contact Biletsky Law

What’s In A Copyright?

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Copyright Law

In modern society, copyrights come up more than you may notice. Basically every book, movie, television show, play, and drawing are subject to copyright laws. Understanding what exactly copyrights are and how copyright laws work will help give you a better understanding of the subject.

So let’s start with what a copyright is. Copyright law has a long history dating back several hundred years, but for now, we’ll focus on modern copyright law in the United States. A copyright is an exclusive right that allows someone to print, publish, perform, film, or record literary, artistic, or musical material. What that means is that the owner of the copyright controls how the copyright is used legally. An owner can license, transfer, or sell their copyright and that’s where most copyright owners are able to make money from their creation.

 

What does it take to have a copyright?

Owning a copyright is easy if you created an original work. In fact, you do not even need to go through the formal process of registration in order to own a copyright. Copyright is automatically granted once an original work is “fixed in a tangible medium of expression.” So let’s talk about what it takes to have a copyright:

Originality

It should come as no surprise that in order to have the copyright to something that it needs to be original. If this was not the case, everyone would just attempt to gain the copyrights to work that people had already created and the law would essentially be useless. Determining whether something is “original” can be a complex issue and courts around the country have wrestled with this issue time and time again. Whether you are able to use enough creativity to make someone else’s work original is a separate issue in and of itself, but if you are the original creator and have used creativity in the objects’ creation, you have likely met the requirement for originality.

Fixation

Fixation is a concept that may seem more complex to understand, but for most purposes, it is rather straight forward. Keep in mind however that this concept has continued to change along with the evolution of digital media. Putting many of the digital media issues aside, fixation comes from simply putting the work onto something “fixed.” When words are printed on pages, they are fixed. When a song is saved as an .mp3, it is fixed. When the frames of a movie are imprinted onto film, it is fixed. And well…you get the point, almost anything physical (or digital if it can be saved) will fulfill the fixation requirement.

So if you’ve used creativity to create an original piece of work that is fixed onto something tangible, you may have a copyright. Copyrights are automatic in that you do not need to register your work with the Copyright Office in order for you to have a valid copyright. Rather, as soon as it goes down on paper or is saved as a file, you receive copyright protection. The classic myth that you need to mail it to yourself or any of those shortcuts to copyright ownership is unnecessary. However, even if you do have the copyright to the work, you may still consider registering the copyright.

 

So why should I register?

Although you may automatically have a copyright, registration is still an important part of protecting your work. Here are some of the advantages of registration:

You can sue

In order to sue for copyright infringement you must have registered your copyright. Although you may still be able to bring a lawsuit against the infringing party, to bring a claim for copyright infringement, you need to register. In addition to this benefit, timely registration can provide you with even more benefits. Timely registration allows you the benefit of receiving statutory damages. Statutory damages range between $750 to $30,000 or can go up to $150,000 for willful infringement. Whether registration in timely depends on several other factors such as the date of publication of the work.

Biletsky Law Copyright Licensing

It makes things easier

Registering your copyright makes several things easier. First, it makes it easier for you to win a lawsuit. The reason for this is because it makes it harder for someone to argue that the infringement was innocent because registration provides notice to everyone that you are the owner of the work.

Registration also makes it easier to transfer, license, or sell your copyrighted work. In fact, certain agreements are not even possible without your work being registered. For example, agreements that lead to the production of films and television shows usually require purchase agreements for the underlying work. Many of these agreements require the copyright to be licensed or assigned to the other company. Without having your work copyrighted it may be harder to enter into these kinds of agreements.

 

Now what?

If you had not given serious consideration into registering your work with the U.S. Copyright Office, hopefully you’re thinking about it now. The Copyright Office has made it easy to register your copyright and the fee for doing so online is only $35 (as opposed to mailing in the registration which costs $65). Depending on the work, registration can be easily be done yourself or if there are complicating circumstances, a legal professional will be able to perform the necessary registration procedures.

 

WHAT TO DO IF SOMEONE USES YOUR PICTURE WITHOUT PERMISSION

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A couple of years ago one of my clients, David Kimmerle, had just started going out with a young lady. Eventually it got to the point where David was to meet her parents. Before David came to her house for dinner that night, her mother decided to look him up online. What happened next shocked both her and David. After entering David’s name into a search engine, the first images that came up were from a pornographic website. The website had edited David’s picture to include explicit content onto his body. Needless to say, the dinner did not go as smoothly as planned…

When someone uses an image of you, an image you took, or an image that you created without your permission it can cause serious reputation and economic damages. So what do you do if someone is using your picture without your permission?

Stolen picture

Having your image used somewhere without your permission can be detrimental to your image and reputation.

  1. Is it yours?

You first need to make sure that it is in fact your picture. The fact that it caught your eye in the first place is a good start but you need to do some investigating to be sure that it is actually your picture. Pursuing any legal action against someone without first being able to verify that it is in fact your picture can have serious consequences.

  1. Save it!

The very nature of online postings allow things to be moved, deleted, and changed very quickly. If you are certain that the picture is yours, be sure to take a screenshot of where the picture is being used and to gather as much information about the person, website, or company that is using your image. It is also important to make sure that you still have the originals. It is even better if the originals have some indication of the date they were created or published.

  1. Take action, maybe…

Now that you’ve confirmed that someone is using your picture without your permission, you have documented its’ use, and you have found out who is behind the unauthorized use; it is time to choose your next step. Many people’s first response is to sue for copyright infringement. While that may certainly be an option, there are several other courses of action that you should be aware of before going with any particular route. Also keep in mind that some people choose not to take any action at all and rather see the use of the picture as a way of gaining exposure. One suggestion if you do decide to not take action is to at least make sure that you are mentioned or provided with credit for the picture.

 

So here are some of your options:

Reach Out

  • Is this something that can be solved amicably? Sometimes simply contacting the person who used your picture can be enough to have them take it down. This is especially true if they inadvertently used your picture. If you do decide to reach out to whoever is using your picture, be sure to save a copy of the email or letter as it may be able to be used later on if they refuse to cooperate.

DMCA Takedown Notice

  • If you don’t feel like being so amicable or if reaching out to the user was unsuccessful, one of your next steps could be to send out a DMCA takedown notice. DMCA stands for Digital Millenium Copyright Act and a takedown notice allows you to request that the internet service provider (ISP) who is hosting the image take down the infringing picture. Sending a DMCA takedown is something that you can do on your own but depending on the circumstances, it may be best to have a legal professional do it for you.

Cease and Desist Letter

  • A cease and desist letter is seen as a formal demand for a person to stop a particular activity. This is generally sent to the individual who is using your picture without your permission. Although anyone can send a cease and desist letter, how effective it is can depend on a number of things. Having an attorney prepare or at least review a cease and desist letter can help increase the chances that the letter will result in your picture being taken down. In some cases, cease and desist letters from non-attorneys may even be disregarded or ignored by the infringing party.
Stolen image

Copyright infringement can be considered theft and is illegal.

Small Claims Court

  • Small claims courts are courts which only hear matters of small disputes. The maximum amount of recovery that can be requested will vary from county to county and from state to state. An advantage with suing through small claims is that you may not have to hire an attorney and can usually bring the case on yourself. The rules that govern small claims courts are usually very user friendly and are not like the rules that govern other courts of law.

Litigation

Litigation can by far be the most time consuming and costly option to go with as far as having your picture taken down. But it is by no means a rare occurrence. Copyright infringement suits, particularly those involving the right to use someone’s image, are very common. A successful lawsuit will almost always require you to hire an attorney to bring the lawsuit. The process of litigation varies in different jurisdiction, but generally speaking, a lawsuit is filed with the court against the other party and the other party has a certain amount of time to respond to the lawsuit. This time period is where most of the settlement negotiations take place as the other party will realize that you mean business and will attempt to avoid large legal fees or a judgement against them. If there is no settlement during this time, the case continues down the normal process of litigation.

In conclusion, your image and the images that you create are important to you for one way another. Whether it be because of your reputation or because it is how you earn your livelihood. Regardless, it is important to keep watch for infringing activities. While there is no single way to completely monitor the internet for the unauthorized use of your image, keeping a vigil eye and knowing your options is certainly a step in the right direction.