Archive for category: Uncategorized

Have you ever convinced yourself that something is simple…just because you want it to be simple?

 

You’re not alone. In the context of applications for US copyright and trademark registration, people decide every day that do-it-yourself (DIY) is an acceptable option because, to their wishful eyes, “it’s just paperwork.”

 

Or maybe they think, “maybe I shouldn’t do this completely on my own,” so they fork over a small fee to an online Service that offers to take care of it. Those Services (you know who we’re talking about) make boatloads of money by offering a false sense of security. Things might work out, and they might not. The Applicant is, essentially, playing Russian roulette.

 

Let’s talk about this, in the context of applications for US copyright registration.

 

The application forms are, in fact, relatively simple.

 

Applicant: See?

 

But those forms are the last step in a strategic legal process. Imagine writing a dissertation, then having to submit a form to the University in order to receive your actual degree.

 

It’s not about the form. It’s about the work that happens first.

 

Suppose Applicant recorded a new album of eleven brand new musical works. Applicant wants a US copyright registration for the album. There are important questions to ask, and strategies to choose, before it’s even possible to select the correct form. For example:

 

• Does anyone else hold a copyright interest in any of the eleven musical works?
• Does anyone else hold a copyright interest in any of the eleven sound recordings?

 

Applicant: What’s the difference between a musical work and a sound recording?

Service: We cannot offer legal advice.

 

Applicant: What does it mean to “hold a copyright interest?”

Service: We cannot offer legal advice.

 

• Have any of the musical works been published?
• Have any of the sound recordings been published?

 

Applicant: What does publication mean?

Service: We cannot offer legal advice.

 

• Is the claimant the same for all musical works and all sound recordings?

 

Applicant: What does claimant mean?

Service: We cannot offer legal advice.

 

• If unpublished, would you like to register in a single application, or four separate applications?

 

Applicant: Well, one. So I only have to pay one fee.

Service: OK. You’re the boss.

 

• If published, would you like to register in two applications?

 

Applicant: I still don’t know what it means to be published.

Service: We cannot offer legal advice. If you want to be sure, you can register every musical work and every sound recording, separately.

Applicant: That would be twenty-two separate fees and applications!

Service: We take credit cards.

 

How is Applicant to know whether the appropriate path is a.) a single application; b.) four applications; c.) two applications; or d.) twenty-two applications?

 

The answer, of course, is to work with a competent copyright attorney who can explain the consequences of each option. For example: in the unpublished scenario, Applicant might successfully obtain a registration using the single application. However, in the event Applicant ever had to use the registration in litigation, Applicant would be dismayed to learn that, although each of the musical works and sound recordings were technically registered, Applicant was only entitled to statutory damages in connection with one work rather than twenty-two.

 

Applicant to Service: Are you kidding me? I could have recovered a ton in damages and instead I’m only getting a pittance.

Service: We did what you told us to do.

 

Service is spot on. When a person uses Service they are, by contract (i.e., via Service’s Terms of Use), representing themselves in the matter. And make no mistake: preparing an application for US copyright registration is a legal matter. Essentially, Service is no different than the US Post Office. It takes the work Applicant has chosen to do on their own, and transmits it to the US Copyright Office. Done.

 

Good luck, Applicant.

 

 

BLOG CONTENT NOT LEGAL ADVICE

 

The other day I was learning about a fellow lawyer, by reviewing her website. Her trademark practice is similar to mine. The site was inviting. She has a sense of humor.

“Nice,” thought I, “we should connect.”

I was reviewing her website because she’d made a mistake in a matter before the Trademark Trial and Appeal Board. Suddenly, my respect for this lawyer circled down the drain.

Because of the mistake? Absolutely not. We all make mistakes.

I lost respect for this lawyer because of four words: “I work on vacation.”

What?

That is not a badge of honor.

The only time I work on vacation is if an actual, bona fide emergency happens. And granted, in some types of law practice real emergencies do happen (for example: deportation; eviction; being served in a lawsuit; imminent physical danger; anything involving handcuffs). In transactional practices, however, those things almost never happen. The client might think something’s an emergency, but 99% of the time it’s just poor planning.

So why would a transactional attorney work on vacation? Seems to me that shows either that the lawyer herself is bad at planning; or that she lacks the confidence to set realistic expectations with her clients.

I’m trying to see things from her point of view. Maybe she finds that work fills her soul more than anything else? OK, I guess. If she returns to work from…work…and is more alert and refreshed: great. Or maybe she thinks that working on vacation will attract more clients? If so, I hope she gets them. All of them. I hope she attracts all clients who want their transactional lawyer to be on call at all times no matter what. Because I don’t want them.

In our high tech, start-up, entrepreneurial economy, the mentality is increasingly to do things FAHA (Fast And Half Assed). That’s not me. I do things as quickly and efficiently as possible, and I respect the balance between legal risks and business realities. But bottom line, I’m going to insist on taking the time to do the job thoroughly. It’s not going to happen overnight, and it’s not going to happen during vacation.

If you’re a FAHA client, get a FAHA lawyer.

But please. Don’t work on vacation.

“Please don’t copy my work.”

They do it anyway.

Is it plagiarism or is it copyright infringement?

Plagiarism is a question of attribution. Let’s say GoodGuy actually created The Work.  BadGuy not only copies The Work, but passes it off as his own. BadGuy is “attributing” authorship of The Work to himself rather than to the actual author, GoodGuy. Bottom line, it’s a lie. It’s telling the world, “I created this” when that’s not true. This is plagiarism.

 

Committing plagiarism is more of an ethical or academic violation, than a legal one.

 

Copyright Infringement is a legal issue. Copyright owners hold several distinct, exclusive rights in connection with their protected expression (e.g., the exclusive rights of reproduction; adaptation; distribution; public performance; and public display). One commits copyright infringement when she exercises one of those exclusive rights without a license from the copyright owner. (Sometimes licenses aren’t required, and under such circumstances use does not constitute infringement. For this simple discussion, though, let’s stick with the general rule: unlicensed use is copyright infringement.)

 

So, is it plagiarism or is it copyright infringement?

 

Scenario #1:

 

BadGuy captures GoodGuy’s photograph and puts it on BadGuy’s website. No attribution either way.

 

This is copyright infringement, not plagiarism, because BadGuy did not identify himself as the photographer.

 

 

Scenario #2:

 

BadGuy captures GoodGuy’s photograph and puts it on BadGuy’s website. BadGuy acknowledges that GoodGuy is the photographer.

 

This is copyright infringement, not plagiarism, because BadGuy did not identify himself as the photographer. Being honest about attribution, though,  doesn’t get BadGuy off the hook for copyright infringement. In fact, it’s an admission that he reproduced and displayed somebody else’s work.

 

Scenario #3:

 

BadGuy captures GoodGuy’s photograph and puts it on BadGuy’s website. BadGuy states that BadGuy is the photographer.

 

This is both copyright infringement and plagiarism.

 

 

Scenario #4:

 

BadGuy captures GoodGuy’s photograph and puts it on BadGuy’s website. BadGuy’s use of the work qualifies as fair use. BadGuy states that BadGuy is the photographer.

 

This is not copyright infringement because a license is not required if the use qualifies as fair use. However, it’s still plagiarism.

 

 

 

No such thing as a “normal” VARA case? Ha! Maybe not. But this one is taking place in Normal, Illinois.

The Town of Normal wants to destroy a mural that appears on a building, to make way for development. The mural was created by 13 artists. In April, the 13 artists sued the Town and the developer to prevent destruction of the work.

So far it sounds like a pretty “normal” case — right?

Now the twist. Attorneys for the Town noticed a potentially game-changing provision in the VARA statute. It provides:

(e) Transfer and Waiver.—(1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors. (17 USC 106A[e])

Whoa! Well played, lawyers for the Town. All you have to do is get one of the 13 artists to waive, and that waiver extinguishes rights for all the others!

And that’s exactly what they did. Lawyers for the Town got one of the artists to execute a waiver.

Game over? If I were the judge, I’d say no. Not so fast.

First, you have to establish that the mural is, in fact, a “joint work” as copyright law defines that term. It might be; or maybe it’s not. That’s an analysis that has to be briefed.

For the moment, though – assuming the mural does qualify as a “joint work” – I see a bigger flaw in the Town’s logic. Yes, the statute permits one joint author to waive VARA rights on behalf of all others. That’s pretty clear. It makes absolutely no sense, however, to permit such waiver after the work has been installed. The point of waiver (and of VARA itself) is to provide artists and property owners with clarity regarding their respective rights and obligations in connection with a work of visual art. If a single joint author can change that for the other joint authors — years down the road in response to the pressure/incentives of an opposing party in litigation — the remaining joint authors will have been divested of the clarity of expectations that VARA was intended to confer.

There’s precedent to support my view. In Carter v Helmsley-Spear, 852 F Supp 228, 237 (SDNY 1994) the court specifically stated:

Finally, an owner or his agent may, at the time such a work is installed, seek from the artist or artists written consent to waive their VARA rights.

That makes sense.

Permitting waiver now, does not.

 

#VARA #waiver #jointwork