Tuesday, July 3, 2012

The ABC's of Copyright Infringement....

As we enter a slow holiday weekend this information became available to me while doing some research for a pending legal case and I felt it was a "public service" to make this information known given the circumstances. Piracy is not just bootleg dvd's or illegal downloading which I have harped on for months, it involves all forms of media including print.  My accuracy in the legality of my work has been spot on.  Artists and fellow journalists should take note and there is a special department of the government dealing SPECIFICALLY with intellectual copyright infringement. A potentially serious offense and should always be considered as such. This does not just pertain to my work but any potentially illegal downloading of music etc...News you can use. Certainly honest mistakes can be made and information disseminated with virtually no reasonable time or chance to retrieve same. However, when obvious and blatant contempt and disregard for the legal process involving copyright issues are made known by the potentially offending party or parties then - contact the web site http://www.copyright.gov/ which will in turn link you to the appropriate email address concerning your intellectual copyright protections which include but are not necessarily limited to the following:

Must all copyrights be registered?
No, any work that is original and able to be reproduced is automatically copyrighted. However, copyrights may be registered with the U.S. Copyright Office (http://www.copyright.gov/) for additional protection. For enduring materials, the Academy typically registers for copyright protection.

Who is liable for violating a copyright?
Anyone who uses information protected by the copyright without permission is liable even if the use is by mistake or accident. Courts may, however, lower the amount of liability depending on culpability (See question below). Consequently, the Academy will usually ask a creator to sign the Assignment of Rights or the Non-Exclusive License to avoid potential liability.

How is a copyright violation proved in court?
The copyright holder will need to prove copyright ownership and an improper copying. Circumstantial evidence (i.e. copy is similar to the original) can be used to prove an improper copying. The copy does not have to be identical to the original but merely substantially similar to prove a violation.

What are the most common defenses in a copyright violation?
The most common defenses for a copyright violation are: fair use; abandonment of the copyright; and misconduct by the copyright holder.

What are the consequences of a copyright violation?
There are both criminal (i.e. jail) and civil (i.e. money damages) for a copyright violation. A criminal violation must be intentional and for financial gain. If convicted, a violator can be imprisoned, fined and have all equipment used in the violation confiscated. A civil violation can result in money fines and the confiscation of all copies.

What is the “fair use” doctrine?
The “fair use” doctrine is the most common defense to a copyright violation. 17 U.S.C. §107. The fair use doctrine allows a person to use copyrighted material for criticism, comment, news reporting, teaching, scholarship, and research without permission from the copyright owner. Caution must be taken, however, when copying without permission since there is always a risk the copyright owner could sue and the alleged violator would have to prove “fair use” as a defense in court.

How is the fair use defense determined by a court?
The court will analyze the following questions in determining fair use:
• Is the violator making money from use of the copyrighted work;
• What type of work is being copied;
• How much of the copyrighted work is being used; and
• What is the commercial impact of the copying on the copyright holder? (This is the most important factor.)

If you find your work on a web site advertising services of any kind then the issue of fair use is for the most part out the window. Consult an attorney or visit the web site above for complete information. You have protection on the work in question for up to 70 years in most cases.