Copyright Worksop

Copyright WorkshopCopyright WorkshopInterUrban ArtHouseInterUrban ArtHouse

Donald R. Simon, Donald R. Simon, J.D./LL.MJ.D./LL.M

Copyright WorkshopCopyright Workshop

Me:Me:

– 10 years of legal experience 10 years of legal experience concentrating in the areas of concentrating in the areas of entertainment and IP.entertainment and IP.

– 9 years of experience 9 years of experience teaching legal and business teaching legal and business issues to aspiring artists.issues to aspiring artists.


Me:Me:

– Teaching legal and business courses at Teaching legal and business courses at The Art Institutes Int’l - Kansas City.The Art Institutes Int’l - Kansas City.

– Sr. Procurement AnalystSr. Procurement Analyst, , ITIT, YRC , YRC Worldwide, Inc.Worldwide, Inc.

– Board MemberBoard Member, KCVLAA, KCVLAA

– OwnerOwner, Simon Business Consulting, Inc., Simon Business Consulting, Inc.

Mark TwainMark Twain

““Only one thing is impossible for God: to Only one thing is impossible for God: to find any sense in any copyright law find any sense in any copyright law on the planet.”on the planet.”

• Mark Twain’s NotebookMark Twain’s Notebook, 1902-1903 , 1902-1903


CopyrightCopyright::

– Part of an overall area of law known as Part of an overall area of law known as “intellectual property:” original works “intellectual property:” original works created as a result of intellectual activities.created as a result of intellectual activities.

IntellectualIntellectualPropertyProperty

CopyrightsCopyrights TrademarksTrademarksPatentsPatents



– Copyright (“CR”): exclusive right of Copyright (“CR”): exclusive right of control over literary or artistic creations.control over literary or artistic creations.

– Primary purpose of CR is to give creators Primary purpose of CR is to give creators economic incentive so that society will economic incentive so that society will benefit from creative production.benefit from creative production.



– CR protects an author’s manner CR protects an author’s manner expression as opposed to the author’s expression as opposed to the author’s ideas (“idea/expression dichotomy”).ideas (“idea/expression dichotomy”).

– No particular degree of literary or artist No particular degree of literary or artist merit is required—just some expressive merit is required—just some expressive effort.effort.



– CR law CR law does notdoes not protect facts, names, protect facts, names, titles, or short phrases.titles, or short phrases.

• These may be protected under trademark law.These may be protected under trademark law.

– Think of CR as a “bundle of rights.”Think of CR as a “bundle of rights.”



– Specifically mentioned in Art. I, §8, cl. 8 Specifically mentioned in Art. I, §8, cl. 8 of the U.S. Constitution.of the U.S. Constitution.

– CR law is a matter of federal jurisdiction.CR law is a matter of federal jurisdiction.

– All works created after March 1, 1978 are All works created after March 1, 1978 are under the protection of the under the protection of the Copyright Act Copyright Act of 1976of 1976, as amended., as amended.



– Elements of a Valid CRElements of a Valid CR::

““Original work of authorship that is fixed in a Original work of authorship that is fixed in a tangible medium of expression.”tangible medium of expression.”

1. 1. OriginalityOriginality::

• The author created the work.The author created the work.

• Not simply a reproduction of existing material.Not simply a reproduction of existing material.

• No requirement that work be novel or distinctive, just No requirement that work be novel or distinctive, just originaloriginal..





2.2. Works of AuthorshipWorks of Authorship::

• literary works;literary works;

• musical works, including any words;musical works, including any words;

• dramatic works, including any music;dramatic works, including any music;

• pantomimes and choreographic works;pantomimes and choreographic works;





2.2. Works of AuthorshipWorks of Authorship (con’t): (con’t):

• pictorial, graphic, and sculptural works;pictorial, graphic, and sculptural works;

• motion pictures;motion pictures;

• sound recordings; andsound recordings; and

• architectural works.architectural works.





3.3. FixationFixation::

• Work must embodied on paper, canvas, film, tape, Work must embodied on paper, canvas, film, tape, computer disk, or other medium such that the work computer disk, or other medium such that the work can be reproduced.can be reproduced.

• CR law does not protect sounds or images of purely CR law does not protect sounds or images of purely transitory in duration, such as a live broadcast.transitory in duration, such as a live broadcast.





• No registration or notice requirements to have a valid No registration or notice requirements to have a valid CR, but are significant for other reasons.CR, but are significant for other reasons.

• CR protection begins CR protection begins at the moment of creationat the moment of creation..

• Remember that CR ownership is entirely distinct from Remember that CR ownership is entirely distinct from ownership of the physical object that embodies the CR.ownership of the physical object that embodies the CR.




• CR owners are afforded CR owners are afforded virtual monopoliesvirtual monopolies over their protected works of expression:over their protected works of expression:

1.1. To To reproducereproduce the work in copies; the work in copies;

2.2. To To prepare derivative worksprepare derivative works;;

3.3. To To distributedistribute copies;copies;

4.4. To To performperform the work publicly; and the work publicly; and

5.5. To To displaydisplay the work publicly.the work publicly.

The “bundle

The “bundle

of rights!”

of rights!”



– Duration of a CRDuration of a CR::

• The general period of CR protection of works The general period of CR protection of works created created afterafter March 1, 1978March 1, 1978 is: is:

– Lifetime of the author, plus 70 years (Sonny Bono Lifetime of the author, plus 70 years (Sonny Bono CR Extension Act); orCR Extension Act); or

– Works-made-for-hireWorks-made-for-hire: 95 years from the year of first : 95 years from the year of first publication or 120 years from the year of creation, publication or 120 years from the year of creation, whichever occurs first.whichever occurs first.



– Duration of a CRDuration of a CR::

• When applicable period ends, the work falls When applicable period ends, the work falls into the into the public domainpublic domain forever. forever.



– Registration of a CRRegistration of a CR::

• Though no longer required, a CR may be Though no longer required, a CR may be registered with the CR Office at any time.registered with the CR Office at any time.

• Registration is obtained by sending to the CR Registration is obtained by sending to the CR Office the following items:Office the following items:

1.1. A completed registration form.A completed registration form.

2.2. Filing fee of $35 (online) or $65 (paper).Filing fee of $35 (online) or $65 (paper).

3.3. A nonreturnable deposit(s) of the work.A nonreturnable deposit(s) of the work.




• The CR Office briefly examines each The CR Office briefly examines each application to determine that all requested application to determine that all requested information has been provided and that the information has been provided and that the material is of a CRable nature.material is of a CRable nature.

• A certificate of registration is then issued.A certificate of registration is then issued.



YouYou: “What about ‘the poor : “What about ‘the poor man’s copyright’? Can’t I just man’s copyright’? Can’t I just mail material to myself and save mail material to myself and save a few bucks?”a few bucks?”

SimonSimon: “Sure. It will at least give : “Sure. It will at least give you a creation date. Remember: you a creation date. Remember: protection begins at the moment protection begins at the moment of creation. There are other of creation. There are other benefits of registration…”benefits of registration…”




• Establishes a public record of the CR claim.Establishes a public record of the CR claim.

• Serves as court evidence of the validity of CR Serves as court evidence of the validity of CR ownership.ownership.

• Is necessary before the CR owner may file an Is necessary before the CR owner may file an infringement suit in court.infringement suit in court.



– CR NoticeCR Notice::

• A CR notice A CR notice maymay be placed on all publicly be placed on all publicly distributed copies of protected works.distributed copies of protected works.

• Should appear in a position where the public Should appear in a position where the public would reasonable look for it.would reasonable look for it.

1.1. ““Copyright,” or the symbol ©.Copyright,” or the symbol ©.

2.2. Year of first publication.Year of first publication.

3.3. Name of the CR owner.Name of the CR owner.



– Works-Made-For-HireWorks-Made-For-Hire



– Works-Made-For-HireWorks-Made-For-Hire::

• Generally speaking, when someone creates a Generally speaking, when someone creates a work, they immediately become the original work, they immediately become the original owner of the CR.owner of the CR.

• When the work is created at the request of When the work is created at the request of someone else (e.g., an employer), however, someone else (e.g., an employer), however, ownership may belong to the employer rather ownership may belong to the employer rather than to the actual creator of the work.than to the actual creator of the work.




• E.g.E.g.::

– Commercial produced for air by a radio station Commercial produced for air by a radio station employee.employee.

– Story written by a reporter employed by a Story written by a reporter employed by a newspaper.newspaper.

– Design of a magazine layout by a full-time graphic Design of a magazine layout by a full-time graphic artist.artist.




• Key legal questionKey legal question: whether the creator was : whether the creator was acting as an employee or independent acting as an employee or independent contactor (“I/C”) of the buyer.contactor (“I/C”) of the buyer.

• If the work was created within the creator’s If the work was created within the creator’s “scope of employment,” the material is “scope of employment,” the material is considered a work-made-for-hire, and considered a work-made-for-hire, and ownership vests ownership vests automaticallyautomatically with the with the employer.employer.




• Trouble arises occasionally with the use of Trouble arises occasionally with the use of I/Cs—a common practice in the creative arts I/Cs—a common practice in the creative arts industry.industry.

• Ownership Ownership does notdoes not automatically vest with automatically vest with the employer.the employer.




• I/C CR issues can be handled easily by the I/C CR issues can be handled easily by the following clause in an engagement of services following clause in an engagement of services agreement:agreement:

““Contractor understands and agrees that Contractor’s services Contractor understands and agrees that Contractor’s services under the terms and conditions of this Agreement are to be under the terms and conditions of this Agreement are to be construed as “works-made-for-hire” as defined by §101 of the construed as “works-made-for-hire” as defined by §101 of the Copyright Act.”Copyright Act.”



– CR InfringementCR Infringement



– CR InfringementCR Infringement::



2.2. To prepare To prepare derivative worksderivative works;;

3.3. To To distribute distribute copies;copies;


5.5. To To display display the work publicly.the work publicly.

The “bundle

The “bundle

of rights!”

of rights!”




• CR infringement occurs when one or more of CR infringement occurs when one or more of those those virtual monopoliesvirtual monopolies are violated. are violated.

• Imitation may be the sincerest form of Imitation may be the sincerest form of flattery, but it may also be flattery, but it may also be CR infringementCR infringement..




• To prove infringement, CR owner must show:To prove infringement, CR owner must show:

1.1. They have a valid CR interest; andThey have a valid CR interest; and

2.2. Substantial, unauthorized copying, directly from the Substantial, unauthorized copying, directly from the protected work.protected work.

• Easy to prove when exact reproduction has Easy to prove when exact reproduction has occurred.occurred.




• Commonly, lawsuits involve some alteration. In Commonly, lawsuits involve some alteration. In such cases, CR owners must prove:such cases, CR owners must prove:

1.1. They have a valid CR interest;They have a valid CR interest;

2.2. Substantial similarity; andSubstantial similarity; and

3.3. Access to the protected work prior to the alleged Access to the protected work prior to the alleged infringement.infringement.




• Juries must distinguish between similarity in Juries must distinguish between similarity in facts or ideas and similarity in expression.facts or ideas and similarity in expression.




• Onus on the CR owner to enforce CRs.Onus on the CR owner to enforce CRs.

• CR owner may sue infringer for either:CR owner may sue infringer for either:

1.1. Actual damagesActual damages: equal to the amount owner lost as a : equal to the amount owner lost as a result of the infringement.result of the infringement.

2.2. Statutory damagesStatutory damages::

• Awarded when owner’s actual loss, or infringer’s profits Awarded when owner’s actual loss, or infringer’s profits are hard to determine.are hard to determine.

• Range from $500 to $100K per work infringed.Range from $500 to $100K per work infringed.



YouYou: “Litigation is a money-, : “Litigation is a money-, energy-, and time-depleting energy-, and time-depleting process. Is there anything I can process. Is there anything I can do before filing a lawsuit?”do before filing a lawsuit?”

SimonSimon: “Of course! There are : “Of course! There are always things you can do before always things you can do before going to court.”going to court.”




• Before getting lawyers involved, it is always Before getting lawyers involved, it is always best to try to work out a dispute directly with best to try to work out a dispute directly with the other party.the other party.

• This might involve educating them on certain This might involve educating them on certain aspects of (U.S.) copyright law.aspects of (U.S.) copyright law.




• Try to hammer out a licensing deal or some Try to hammer out a licensing deal or some other arrangement.other arrangement.

• Or persuade them to stop.Or persuade them to stop.

• If these efforts fail, then and only then should If these efforts fail, then and only then should you consider litigation.you consider litigation.




• ““Think of an infringer as a potential business Think of an infringer as a potential business partner with whom you have not met.”partner with whom you have not met.”

~~ Rebecca Stroder, ~~ Rebecca Stroder, AttorneyAttorney



– Fair Use DoctrineFair Use Doctrine



– Fair Use DoctrineFair Use Doctrine::



2.2. To prepare To prepare derivative worksderivative works;;

3.3. To To distribute distribute copies;copies;


5.5. To To display display the work publicly.the work publicly.

The “bundle

The “bundle

of rights!”

of rights!”




• A major, but A major, but very narrowvery narrow, exception to CR , exception to CR monopoly protection.monopoly protection.

• Gives people other than the CR owner Gives people other than the CR owner a a limited privilegelimited privilege of using CRed work w/o of using CRed work w/o owner’s consent and w/o paying a royalty.owner’s consent and w/o paying a royalty.




• Limited usually to criticism, comment, Limited usually to criticism, comment, parody, news reporting, teaching, parody, news reporting, teaching, scholarship, or research.scholarship, or research.

• Assessed by Assessed by courtscourts on a case-by-case on a case-by-case determination guided by four factors.determination guided by four factors.




1.1. Purpose and character of the use, including Purpose and character of the use, including whether such use is of a whether such use is of a commercial naturecommercial nature or or is foris for non-profit educational purposesnon-profit educational purposes..

– Does use serve some productive, publicly beneficial Does use serve some productive, publicly beneficial purpose, such as news reporting or teaching?purpose, such as news reporting or teaching?

– Is use solely for entertainment purposes?Is use solely for entertainment purposes?

– Is character of use predominantly commercial?Is character of use predominantly commercial?




2.2. Nature of the CRed work.Nature of the CRed work.

– Is the CRed work published or unpublished? Not-yet-Is the CRed work published or unpublished? Not-yet-published works are considered deserving of greater published works are considered deserving of greater protection.protection.

– Is the CRed primarily factual or fictional? Factual Is the CRed primarily factual or fictional? Factual works, such as news stories, are more susceptible to works, such as news stories, are more susceptible to fair use.fair use.

– Is the work out-of-print and no longer available? If so, Is the work out-of-print and no longer available? If so, copying is more likely to be fair use.copying is more likely to be fair use.




3.3. Amount and substantiality of the portion used Amount and substantiality of the portion used in relation to the CRed work as a whole.in relation to the CRed work as a whole.

– Quantity vs. quality of the portion used.Quantity vs. quality of the portion used.

– The smaller the amount used, the more likely it will be The smaller the amount used, the more likely it will be a fair use.a fair use.

– Even if a small percentage, may weigh against fair Even if a small percentage, may weigh against fair use if the copied portions were the most important, use if the copied portions were the most important, most marketable elements of the CRed work.most marketable elements of the CRed work.




4.4. Effect of the use upon the potential market for Effect of the use upon the potential market for or value of the CRed work.or value of the CRed work.

– If use has significantly usurped a portion of the If use has significantly usurped a portion of the market for the CR, fair use will not be found.market for the CR, fair use will not be found.

– Courts tend to consider the first and fourth factors to Courts tend to consider the first and fourth factors to be important.be important.

– And the fourth to the be the single most important And the fourth to the be the single most important criterion for determining fair use.criterion for determining fair use.




• Two courts looking at the same material, the Two courts looking at the same material, the same statutes, and the same case law can same statutes, and the same case law can come to two completely different conclusions.come to two completely different conclusions.



YouYou: “What about things I’ve : “What about things I’ve heard for years like the ‘8-Bar heard for years like the ‘8-Bar Rule’?”Rule’?”

SimonSimon: “Lots of misconceptions : “Lots of misconceptions about Fair Use. Unfortunately, about Fair Use. Unfortunately, the only place to make these the only place to make these arguments is in a court room!”arguments is in a court room!”



– Common Fair Use Myths:Common Fair Use Myths:

• ““I can use CRed music so long as it comes I can use CRed music so long as it comes within the ‘8-bar rule.’”within the ‘8-bar rule.’”

– Many are under the mistaken impression that a small Many are under the mistaken impression that a small portion of a CRed work may be used without portion of a CRed work may be used without obtaining a license.obtaining a license.

– They claim: “I can use X number of bars for free.”They claim: “I can use X number of bars for free.”

– Any part of CR music reproduced in a production Any part of CR music reproduced in a production must be licensed (some exceptions for parody). must be licensed (some exceptions for parody).




• ““Well, it’s free advertisement for the CR Well, it’s free advertisement for the CR owner.”owner.”

– One of the exclusive rights afforded a CR owner is One of the exclusive rights afforded a CR owner is the right to reproduce and authorize a reproduction the right to reproduce and authorize a reproduction of a CRed work.of a CRed work.

– In other words, any CR owner has a right to control In other words, any CR owner has a right to control so-called “free advertisement.”so-called “free advertisement.”




• ““I can use CRed work in an ad for a school or I can use CRed work in an ad for a school or church without first obtaining a license.”church without first obtaining a license.”

– It makes no difference whether the organization is It makes no difference whether the organization is non-profit, educational, or a charity, if any CRed non-profit, educational, or a charity, if any CRed music is going to be used, it must be properly music is going to be used, it must be properly licensed for that purpose.licensed for that purpose.




• ““I own a copy of the _______, I can do whatever I own a copy of the _______, I can do whatever I want with it, right?”I want with it, right?”

– It is important to remember that CR ownership is It is important to remember that CR ownership is entirely distinct from ownership of the physical entirely distinct from ownership of the physical object that embodies the CR.object that embodies the CR.

– Ownership of a photo, piece of art, sculpture, CD, or Ownership of a photo, piece of art, sculpture, CD, or DVD, for example, does not grant full rights to the DVD, for example, does not grant full rights to the CRs therein.CRs therein.




• ““If I don’t charge for it, it’s not a violation.”If I don’t charge for it, it’s not a violation.”

– It’s still a violation if you give it away -- and there can It’s still a violation if you give it away -- and there can still be serious damages if you hurt the commercial still be serious damages if you hurt the commercial value of the property.value of the property.


Protecting Your WorksProtecting Your Works::



YouYou: “Beside registering my : “Beside registering my copyrights, what else can I do to copyrights, what else can I do to protect my works?”protect my works?”

SimonSimon: “There are numerous : “There are numerous common sense ways to protect common sense ways to protect your work depending on the type your work depending on the type of work it is.”of work it is.”



– For photogs and sketch artists:For photogs and sketch artists:

• Watermark or emboss your photos or images. Watermark or emboss your photos or images. Use some kind of easily identifiable mark, Use some kind of easily identifiable mark, such as your name along with the © symbol.such as your name along with the © symbol.

• Post small, low-res photos or images. These Post small, low-res photos or images. These are much harder to copy.are much harder to copy.



– For photogs and sketch artists:For photogs and sketch artists:

• ““Shrinkwrap” your images and photos.Shrinkwrap” your images and photos.

– Adding a clear filter layer over the work. Visitors can Adding a clear filter layer over the work. Visitors can still see the image but it cannot be so easily copied.still see the image but it cannot be so easily copied.



– For writers:For writers:

• Don’t send out entire manuscripts unsolicited.Don’t send out entire manuscripts unsolicited.

• Be careful not to reveal too much in query Be careful not to reveal too much in query letters or story treatments. letters or story treatments.

• Register your work with the Register your work with the Writers GuildWriters Guild..



– For musicians:For musicians:

• Don’t post entire songs. Instead post Don’t post entire songs. Instead post “medleys” showcasing the depth of you talent.“medleys” showcasing the depth of you talent.

• Or post lo-fi song clips.Or post lo-fi song clips.

• Do not send out hi-fi complete songs to Do not send out hi-fi complete songs to anyone anyone unsolicitedunsolicited..



– For jewelry designers:For jewelry designers:

• Continually create and promote new designs.Continually create and promote new designs.



– For jewelry designers:For jewelry designers:

• Use unique or hard-to-find supplies that make Use unique or hard-to-find supplies that make their work difficult to copy.their work difficult to copy.

• Constantly learn new techniques to incorporate Constantly learn new techniques to incorporate into your work.into your work.

• Create designs that require specialized tools or Create designs that require specialized tools or equipment.equipment.



– KCVLAA is nonprofit, 501(c)(3) legal KCVLAA is nonprofit, 501(c)(3) legal organization.organization.

– Provides legal and accounting assistance Provides legal and accounting assistance to qualifying artists and arts organizations to qualifying artists and arts organizations from all creative disciplines.from all creative disciplines.



– Our “ArtSmarts” program provides Our “ArtSmarts” program provides seminars in arts law to help artists avoid seminars in arts law to help artists avoid common pitfalls in their professional arts common pitfalls in their professional arts careers.careers.

• Ask the ExpertsAsk the Experts

• Musician and Filmmaker Legal BootcampsMusician and Filmmaker Legal Bootcamps

• For more information: For more information: KCVLAA.orgKCVLAA.org..

Victor HugoVictor Hugo

““All the forces in the world are not so All the forces in the world are not so powerful as an idea whose time has powerful as an idea whose time has come.”come.”

• Histoire d’un CrimeHistoire d’un Crime, 1877, 1877

Contact Me:Contact Me:

• PhonePhone: 816.728.6948: 816.728.6948

• EmailEmail: : [email protected]@simonbizconsulting.com

• TwitterTwitter: @simonbizconsult: @simonbizconsult

• WebWeb: : simonbizconsulting.comsimonbizconsulting.com

THANK YOU! THANK YOU!

Attention:Attention:

This presentation is provided as a This presentation is provided as a source of information and is not to be source of information and is not to be construed as legal advice or opinion, construed as legal advice or opinion, or to form an attorney-client or to form an attorney-client relationship.relationship.

For legal advice, please consult an For legal advice, please consult an attorney.attorney.

Copyright Worksop

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Transcript of Copyright Worksop