The Bottom Line about Copyright
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Thread: The Bottom Line about Copyright

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    The Bottom Line about Copyright

    Greetings All!!

    First I want to say that I am not a lawyer and this is not legal advise.

    However I have been reading about this subject and wanted to share the knowledge with you.

    I am first going to give you the bottom line and then I will go into more detail in the second post. Both posts are written for international artists. I will mention when things are specifically for a certain country.

    Although I try to make sure this applies to everyone and is accurate I don't speak all languages and can make mistakes.

    ---The Bottom Line---

    Protect Your Work!!

    Watermark or sign your artwork and put your copyright and terms of use in the metadata of the image file (photoshop: file->file info). In many countries copyright is not automatic. If you want to have a copyright across the globe put the copyright notice on your image. (© date name)

    Also use a resolution lower than 300 ppi. 72 ppi works perfectly well for showing your work online and limits what someone can do with it.

    None of these things will absolutely protect your work it just makes it harder for someone to steal, it takes more effort, and in case of a lawsuit harder for them to claim that they didn't know it was your work and was copyrighted.

    If someone is using your work without your permission write a cease and desist letter or submit a DMCA take down notice with the website host. Typically that resolves the problem if that fails you will probably have to go to court.

    If you want to sue someone for using your work you have to register with the copyright office (this is true for most countries, but not all). There is no work around, no if or but. If you want to sue in the U.S. and a few other countries you have to register your work period.

    For you to own the rights to your work or to be copyrightable it must be:
    1. Original. Not just a painting version of a photograph.
    2. Exhibits minimal creativity.
    3. Fixed in a tangible form of expression. Files on your hard drive count.
    4. It must not be a Work For Hire.


    It is a Work for Hire:
    1. When an employee performs or creates work for the employer within the scope of the employee's job. You are considered an employee of the company if they pay your Social Security taxes and/or provide you with benefits
    2. When work is commissioned and the agreement is in writing.


    Selling your Rights to your artwork is a good way to make money. Just because you sell an painting or photograph doesn't mean you sell your rights to the painting or photograph.

    Make sure you are specific as to what rights you are selling and for how long.

    Typically there are 3 types of transfers.
    1. Exclusive license- a transfer of one or more of the rights
    2. Nonexclusive license- allowing someone the right to exercise one or more of the rights on a nonexclusive basis. This is not a transfer of copyright ownership.
    3. Assignment license- a transfer of all the exclusive rights in a copyright.

    Be careful of emailing or posting your work online. Facebook has a nonexclusive license to anything you post on their site. Most mail services will claim the same for anything you email. CA is the exceptional exception.

    Read Your Terms Of Use!!!

    Okay so the next post will go into detail about copyright. Feel free to ask questions and share your own experiences/ solutions.

    Simple is not Easy.
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    Copyright Details

    Criteria for a work to be copyrightable:
    1. Must be original

    2. Exhibits minimal creativity

    3. Fixed in a tangible form of expression (fixed form is a form that can be read back or heard, either directly or with the aid of a machine)

    4. Not a work for hire.

    Work for hire
    1. when an employee performs or creates work for the employer within the scope of the employee's job. (You are considered an employee of the company if they pay your Social Security taxes and/or provide you with benefits)

    2. when work is commissioned and the agreement is in writing.

    Rights of Copyright:
    1. Reproduction

    2. Derivative- Transform the protected work to a new work like a screenplay from a novel, a painting from a photo, postcard from a painting, etc.

    3. Distribution- Passing out pamphlets, sending a photocopy to a client, publishing and selling a book.

    4. Public Performance- Acting on stage, singing in club, making a recording, showing a movie in a theater, broadcasting an event.

    5. Public Display- Posting the work on a bulletin board, hanging a print on the wall of a library, displaying the work on a computer screen, exhibiting a painting at an art gallery.

    6. Subsidiary Rights- Printing of paperback editions, selling the work to be made into a movie/tv show/play, publishing all or part of the work in a newspaper/magazine, making an audio version, electronic rights.

    7. Moral Rights- They can never be transferred and never expire. Any intentional distortion/mutilation/or other modification of the work that would be prejudicial to the artist's reputation, destruction of a work of recognized stature, use of the artist's name with a work that the author did not create, use of the artist's name with a work that has been modified.

    Type of Rights Transfer:
    1. Exclusive license- a transfer of one or more of the rights of a copyright holder.

    2. Nonexclusive license- allowing someone the right to exercise one or more of the rights on a nonexclusive basis. This is not a transfer of copyright ownership.

    3. Assignment license- a transfer of all the exclusive rights in a copyright.

    When you sell your rights set the timeframe the rights are transferred, which rights, and where. For instance I could sell the First printing rights of a book for north america.

    After set term is up for transfers. A letter should be sent to the copyright office to notify them and reclaim the ownership of the rights.

    You might want to make sure the right to sublicense the work is included in the contract. (" may not sublicense the rights granted in this agreement without the prior written consent of licensor. Such consent shall not be unreasonably withheld.") A sublicense is a license transfers the license you sold to a third party, sometimes it's necessary, sometimes it can have bad results.

    Statutory Termination of Transfers:
    All transfer of rights can be terminated even if it wasn't in the contract you signed. Just not for awhile.

    Publish Transfers can be terminated during a 5 year period beginning either 40 years after the date of the transfer or 35 years after the date of first
    publication.

    Other transfers may be terminated after 35 years after transfer was signed.

    Any derivative works are unaffected.

    Although it won't immediately apply termination can be served 10 years prior.

    What to do. Send a notice of termination to each person whose rights are being terminated or that person's successor and copyright office. It should include.
    1. that the termination is made under 17 USC 203

    2. the date the transfer was made, if it included publication, date of publication.

    3. title of the work, the name of the author, and the copyright registration number.

    4. brief statement identifying the transfer to which it applies and the effective date of termination.

    Fair Use:
    There are no clear guidelines for what is or what isn't fair use. Only a court can decide what is and is not fair. But there are four factors of fair use

    1. purpose and character of use commercial/ nonprofit

    2. the nature of the work (private should not be made public, etc)

    3. the amount used in portion to the whole

    4. the effect of use on the value of the work

    So if you create fan art of spiderman and you start selling prints of your artwork. Therefore people stop buying posters, etc from marvel. That is not fair use.

    Proving Copyright Infringement:
    1. Prove a valid copyright- is the material original, creative, and in a fixed medium of expression? The best way to prove this is with the certificate of copyright registration.

    2. Prove the work was copied, distributed, made into a derivative work, etc.- To do this you must prove Access. Did the infringer have access to the material? For example could the infringer have taken your book out of the library, over the airwaves, etc.

    Similarity- is the copy significantly similar. Have words been copied verbatim? Are there identical characters in the story?

    3. Prove that they took the "protected expression" of the work- What is Original and unique to the work? How significant is the work?

    For example if you take a photo and put it online. Then you find your photo turned into a painting. Unless that painting has a different composition or some significant change that's infringement.

    Solutions to Infringement:
    1. Mark your work
    a. watermark or sign it
    b. put the copyright info in the metadata of the image file
    c. put your terms of use in the metadata of the image file
    d. keep everything related to your work
    e. use a resolution lower than 300 ppi

    The above solutions will not protect your work absolutely, but it makes it harder and will prove willful infringement in court.

    2. Collect evidence
    a. take screen shots and pictures of infringements
    b. use tineye.com to find infringements

    3. Write a cease and desist letter- include
    a. your name and business contact info
    b. name of my work
    c. date of first publication
    d. record of registration
    e. the nature of the infringement
    f. demand the infringer cease and desist and pay for damages
    g. require a response by a certain time.

    4. Digital Millennium Copyright Act- U.S. only website takedown notice
    a. The notice contains- A physical or electronic signature of the owner of work that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, if multiple copyrighted works a list of the works at that site; Identification of the material that is claimed to be infringing and that is to be removed or access to which is to be disabled, with information sufficient so that service provider can locate the material; Contact information; A statement that the you in good faith believe that the use of the material is not authorized by the copyright owner, its agent, or the law; A statement that the information in the notification is accurate, and under penalty of perjury, that the you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

    b. The notice must be sent to the service provider's DMCA agent. (who is registered with the copyright office)

    c. Use betterwhois.com to find the site's provider

    d. If a counter notice is filed then you will have to go to court

    e. Consider filing with search engines

    5. Work out a settlement- meet halfway

    6. Go to court

    Filing a Lawsuit: - this applies only to the U.S many other countries are similar.

    Lawsuit has to be filed within 3 years from the time the infringement should reasonably have been discovered.

    1. Ask yourself is the cost of litigation more than the infringer's profits and my damages. (Copyright lawyers typically charge between $200- $300 per hour)

    2. Before a copyright infringement suit can be filed you have to prove a valid copyright with a recorded certificate of copyright registration. (Without the certificate you only have the right to tell the infringer to stop using the work.)

    3. Can sue for injunction (court order to stop publishing/distributing work and destroy all copies they have), attorney fees (at the discretion of the court), all revenue they generated from the infringement, money for lost sales, statutory damages.

    4. To receive statutory damages and lawyer fees instead of profits and damages you have to timely register the work
    (Published work- within 3 months of the date of first publication or before the date the copyright infringement began. A work is published when copies are made available to the public on an unrestricted basis.

    Unpublished work- Registered before infringement. Can register only if the work is being prepared for commercial distribution. Register again when it is published to apply protection to the changes that were made.).
    (Damages range from $200- $150,000 depending on how willful the infringement)

    5. Infringers could claim that you copied from them.
    This can be disproved if your work was deposited with the copyright office before the infringing work or if it was published before the infringing work.

    The copyright office will provide certified copies of deposits you made with the copyright office. But only if before the 5 years, you can make a full-term retention request for $425 so it will be stored for 95 years from publication. (mailing a copy to yourself does not hold up in court)

    Filing for Copyright Registration- U.S. only:
    1. Forms- TX- Nondramatic literary works, PA- Performing arts, SR- Sound
    recordings, SE- Serial publications, VA- Visual arts.

    2. Submit "best edition" of work with form meaning the highest quality of work available at the time of registration.

    3. Have to send 2 copies unless work is unpublished.

    4. It costs $65 for paper registration, $35 online.

    Deposits- U.S. only:
    The work you submit to the copyright office becomes the property of the office and won't be returned.

    The deposit is stored for 5 years.

    Mandatory deposits for published work to be used for the library of congress.

    (Exemption for work available only online more info www.copyright.gov/title37/202)

    Simple is not Easy.
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  3. The Following User Says Thank You to JOELB For This Useful Post:


  4. #3
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    Thank you for the information Joel, I have copied both your posts in the Reference about copyright thread, which is stickied. I think this is information that should be kept visible (But I think we already have too many stickies!)

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    Sure sounds fine with me. I wasn't sure whether or not it belonged in your thread since it isn't really a reference. More of information I have taken from several sources, compiled, and distilled.

    Simple is not Easy.
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