Privacy and Home Base in COVID-19

So. You’re being a good citizen of the world and sheltering in place. Your employer actually allows you to work from home and you’re accessing your employer’s information over your home-based wi-fi. You have a password on your router, a password on your local computer, your  and you have never seen a neighbor lurking on your internet system.

But now you’re accessing your employer’s sensitive and private intellectual property using your home-based internet. Is your home-based security sufficient?

My guess is that no, it is not.

Hackers love a challenge. And a home-based internet security system is usually not set up to handle a hacker’s attack. There are resources available on the internet to help you beef up your home’s internet security; the Federal Trade Commission provides these tips; here’s ZDNet’s article; Digital Guardian lists 101 Data Protection Tips; and there are other references available. You must be proactive in keeping your and your employer’s data secure.

The best advice, though, is to follow your employer’s internet security protocols. If they have a PITA VPN, use it. If they want you to use the Tor browser rather than your favorite Internet Explorer or Firefox or Safari, use it. Be careful about email, especially email that can travel across the open internet; you can simply assume, de facto, that emails are open communication with the world. And if you or your employer don’t want something forever on the internet, don’t put it there.

If you want to keep something private, you must keep that something private. Remember, not everything belongs on the internet.

 

Why Do YOU Need a Lawyer?

You’re forming a business. You need a lawyer because you need to do it right. You need the magic words that form the business you want to form in the formation documents (do you know what those magic words are?).

Or maybe you’re developing a brand for your new business. You need a lawyer because you need to do it right. Yes, a lawyer is expensive, but a trademark infringement action brought by a senior user of the mark you adopt … without knowing there even IS a senior user … gets mighty pricey mighty quickly.

Or you’ve invented something and you want to get your invention out to the public immediately. But wait; do you want to profit from your invention? You need to take steps to protect that invention. Do you know what steps are available to you? And do you know how steps that seem to be diametric opposites and never able to work together can actually allow you to effectively extend the term of protecting your invention? You need a lawyer because you need to do it right.

Or maybe you’ve written something. Let’s say you’re J.K. Rowling and you’ve just completed your very first “Harry Potter” book. You want all the protection you can get for that book. Do you know the ins and outs of obtaining and using that protection? You need a lawyer because you need to do it right.

Or you want to … ooh, ooh, ooh … start up a company that franchises its business methods and trademark (i.e., you’re Ray Croc) out to others. What do you need to do to start that franchise and comply with the state and federal laws that govern franchises? What business and legal models do you need to have in place? You need a lawyer because you need to do it right.

Or you don’t want to franchise, but you do want to license your intellectual property for others to use. How do you license out your intellectual property without creating a franchise? You need a lawyer because you need to do it right.

Or someone has handed you a contract to sign. It’s long and full of legal jargon. What does it actually say? Remember, lawyers use words differently than most people do, and it’s lawyers who will interpret any contract you sign that goes south. You need a lawyer because you need to do it right.

You need a lawyer because you’re in business and you need to do it right.

Delain Law Office, PLLC

 

Fair Use and Social Media

According to an email I received today from Strafford CLE Webinars, “The number of active monthly users [of social media] worldwide are staggering–Pinterest (265 million), Instagram (one billion), Twitter (330 million), YouTube (2 billion), Facebook (2.4 billion), and WhatsApp (1.5 billion)–and increasing. Social media users are sharing, tweeting, pinning, and posting a variety of intellectual property, including pictures, videos, articles, and more, often without the permission of the owner.”

It’s a problem. What’s a copyright owner to do?

Copyright law gives the copyright owner the right to certain restrictions on the use of their works of authorship. 17 USC 106 says:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

If anyone other than the copyright owner does any of these things without the permission of the copyright owner, that person is infringing and is liable to the copyright owner under 17 USC 501 et seq.

“Reproduction” includes copying and pasting from and to social media. That would be infringement. Infringement, under 17 USC 106, is actionable. Infringers can get themselves sued … for some pretty hefty sums.

However, 17 USC 107 codifies a concept called “fair use.” It says:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
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Fair use is the grayest of all gray areas of the law. The finding literally can spin on the whim of a judge. As to those who use social media to infringe, in 17 USC 107(4) lies the kicker that argues against the prosecution of copyright infringement for all those copied-and-pasted videos, graphics, works of art, musical numbers, old movies, text, and other works of authorship against anyone and everyone who has infringed the copyright holder’s rights. All that copying and pasting gets the copyright holder’s name and samples of their work out there, often virally. The market for the copyright holder’s work therefore expands far beyond the original reach of the work or the rights holder, which, de facto, has a positive “…effect of the use upon the potential market for or value of the copyrighted work.”
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These days, there are authors (and I use that as a term of art, not necessarily just as the author of text) who put their work up on Facebook, YouTube, InstaGram, wherever in an effort to cause the work to go viral. The work can only do that if the author does not squish the sharing of the work. The marketing effect of copy-and-paste is huge and growing. However, that effect can backfire; a work can be copied in very high resolution and the recipient of the copied work can then use that copy just as s/he would the original. That could kill the market for the work.
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So how does the copyright holder balance the wonders of viral marketing vs. the deleterious effect of too much copy-and-paste?
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I tell my clients:
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  • PUT A WATERMARK ON YOUR SHARED WORK in such a place that no one can remove that watermark without destroying the work. That makes it MUCH less desirable to copy and paste, yet the image on the internet retains the character of the original image
  • PUT A COPYRIGHT NOTICE ON YOUR SHARED WORK. Just do it. Copyright attaches the instant a work is affixed in a tangible medium. Give the world notice of that fact.
  • REGISTER YOUR WORKS WITH THE US COPYRIGHT OFFICE BEFORE YOU SHARE IT. It’s cheap. Just do it.

Or the copyright holder can donate the work to the public domain. If this is what the author wants to do, p with abandon … and consider any copyright in any posted work abandoned. Nothing wrong with that, and it saves all the angst and pain of not being able to enforce your unregistered copyright (you can’t enforce your unregistered copyright in the USA).

The choice of how to proceed varies with each author … and it is, after all, the author’s choice.

Public Domain Expanded Nicely on 1/1/2019

For the first time in 20 years, the public domain for copyrighted works has expanded! Works that were copyrighted in 1923 were protected on 31 December 2018 but entered the public domain on 1 January 2019 … and that has happened now for the first time in 20 years thanks to the Sonny Bono Copyright Act.

Anyone can now re-publish the 1923 works, or use them in other projects, without asking permission or paying the former rights holders. Anyone can record new versions of the musical compositions; anyone can show the movies for a profit; anyone can even remake those movies. Project Gutenberg can give you the ebook of those 1923 works for free.

Works now in the public domain include some of the poetry by Edna St. Vincent Millay and Robert Frost; a couple of Agatha Christie mysteries; Khalil Gibran’s “The Prophet”; “The Ego and the Id” by Freud; writings by by Jane Austen, D.H. Lawrence, Edith Wharton, Jorge Luis Borges, Mikhail Bulgakov, Jean Cocteau, Italo Svevo, Aldous Huxley, Winston Churchill, G.K. Chesterton, Maria Montessori, Lu Xun, Joseph Conrad, Zane Grey, H.G. Wells, and Edgar Rice Burroughs; artwork by M. C. Escher, Pablo Picasso, Wassily Kandinsky, Max Ernst, and Man Ray.

Be careful with music, though. Some music published in 1923 is NOT in the public domain, and will not be until 2064 since rights over music recorded until 1972 is governed by state law.

Cheerleader Outfit Designs ARE Covered by Copyright

Star Athletica, L.L.C. v. Varsity Brands, Inc., et al., 580 US ___, a newly (22 March 2017) decided copyright case, finds that the design elements of a cheerleading outfit can be covered by copyright.

According to the syllabus of the case, SCOTUS holds: “A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated. That test is satisfied here.”

This case is interesting because it tells us where lies the line between industrial design, which is not protected by copyright (it may be protected by patent), and artistic design, which is. Courts have disagreed where that line lies.

Here, the District Court held that the designs did not qualify for protection under copyright because the designs served the useful purpose of identifying the outfits as “cheerleading uniforms.” The designs are therefore utilitarian, cannot be separated out to stand on their own, and therefore cannot be protected by copyright (you can read the District Court’s opinion at 2014 WL 819422 (WD Tenn., Mar. 1, 2014)).

The US Court of Appeals for the Sixth Circuit disagreed; they held, with one dissent that upheld the District Court’s opinion, that the graphic designs are indeed “separately identifiable” because a cheerleading costume without design is still identifiable as a cheerleading costume, so the graphics on such a garment can indeed be separated out and separately displayed and are thus protectable under copyright (read the 6th Circuit’s opinion at 799 F. 3d 468, 471 (2015)).

The Supreme Court affirms the 6th Circuit.

So what does this case teach us? We now know that designs on clothing CAN be separated out from the clothing, making the design on the clothing, even if the design relates to the function of the clothing, protectable under copyright.

We know that “The statute … provides that the “design of a useful article” can include two-dimensional “pictorial” and “graphic” features, and separability analysis applies to those features just as it does to three-dimensional “sculptural” features.”

We know that “…a feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.”

Copyright remains one of the most case-by-case determinations around. The findings of this case have yet to be tested on utilitarian items other than clothing; we’ll watch this with some interest to see what, if anything, happens.

Copyright Rulemaking on Moral Rights

“The U.S. Copyright Office has published a Federal Register notice extending the deadlines for public comment in connection with the Office’s study on the moral rights of attribution and integrity. Public comments are now due no later than 11:59 p.m. Eastern time on March 30, 2017, and reply comments are now due no later than 11:59 p.m. Eastern time on May 15, 2017.

For more information, click here to visit copyright.gov

So … what are “moral rights”?

Moral rights provide an author with the ability to control the eventual fate of their works. In the US, these rights are limited to visual arts (other countries allow other, more general, moral rights). You can find the statute at 17 USC 106A, commonly called the Visual Artists Rights Act of 1990 (VARA). Under VARA, an artist has the right to control the use of his/her name in connection with a work (including NOT using his/her name in connection with works s/he did not create), prevent the use of his/her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation, prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

For an example of how moral rights work, say you bought a painting by a famous artist working today. This artist is known for his/her French landscapes in the style of Monet; very peaceful, very verdant, very proper. Your idiot stepson, whom you never liked, then decides to spray paint graphic obscenities on the work. The artist, although you actually own the work, can now dissociate him/herself from that work; thus, the work can no longer be sold under Artist’s name with the obscene spray painting. You thus no longer own a work by Artist; if Artist’s name adds value to the work, your painting has just plummeted in value even more than it did with the addition of spray paint.

“The [US Copyright] Office is commencing its study to review how existing U.S. law, including provisions found in Title 17 of the U.S. Code and other federal and state laws, protects the moral rights of attribution and integrity and whether any additional protection is advisable in this area. To support this effort and provide thorough assistance to Congress, the Office is seeking public input on a number of questions. “

A Christmas Copyright

Home Free, an a cappella singing group, put out this beautiful rendition of “Angels We Have Heard On High” a couple of years ago.

The basic song itself, melody and words, is in the public domain. Anyone can perform “Angels We Have Heard On High” anytime without paying any royalties to anybody. Home Free is thus … well, home free as they perform this lovely piece.

However, the melody and words are just one layer of the rights involved here.

  • Someone wrote the harmonies we hear in the video. That person has copyright in the music of the harmonies they composed.
  • The group performed the song. They have copyright in their performance.
  • There was a sound engineer who did some mixing here. That sound engineer has copyright in the sound mixing s/he did to produce this video.
  • There was a videographer who did the camera work for the video. That videographer has copyright in the video s/he did to produce this video.
  • Finally, someone holds copyright in the final production as a whole.

There are lots and lots of layers and stakeholders in a video performance copyright.

Have a joyous holiday season!

What Is the DOJ Thinking?????!

The Department of Justice has basically denied songwriters a living wage from their hard work. 

Yuck. There is some light at the end of this tunnel, I don’t see a lot of it.

This is administrative law. Admin rulings like this can be appealed at the District Court level, but not for content per se; only for abuse of power. Since there is 60-year-old precedent in place, and since federal courts are all about precedent, it will (not “would”; “will”) take a really good litigator to convince the judge to rule against the DOJ (that’s not me; I’m a transactionalist). Once it’s in the court system, it can proceed through the appeals process like any other case.

Even though I am not a litigator, it’s always fun to do some backseat driving in cases like this. I’d do a bit of forum shopping before I would take this to the District Court. Whoever brings the admin appeal to the District Court should be sure to bring it in either the US District Court for the Southern District of New York (that court is king of copyright and performing arts) or in the US District Court that covers L.A. and Hollywood (that court is the other king of performing arts). That shouldn’t be a tough one; songwriters live in droves in those places. The lawyer would just need a local client to bring this to the attention of one (or both) of those two courts. If it gets brought in both places (two different plaintiffs), hope to God the rulings disagree with each other. That makes the appeal easier to get through the chinks, especially if they appeal to the 2nd and 9th Circuits and those rulings disagree. That could turn it into a SCOTUS case … if SCOTUS grants certiorari. That’s a big “if.”

 

Google Books Is Protected by the Fair Use Doctrine

The US Court of Appeals for the Second Circuit has handed down the ruling that the Google Books project does not infringe the authors’ copyrights in their various works. Under Author’s Guild v. Google. Inc., docket no. 13-4829-cv, the Google Book project falls under the fair use doctrine.

The fair use doctrine is about the grayest of all gray areas of law. The idea behind it, of course, is that there are uses for which no permission from the copyright holder is needed to use the copyrighted work. 17 USC 107 lays out the groundwork for the fair use analysis. The work can be used without infringement for purposes “…such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” The statue also lays out the four factors that come into play when analyzing whether a use is fair use or not:

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

No one factor is determinative; the results of the factors are looked at as a whole, then the judge is required to make a decision based on that analysis of the four factors taken together. This makes fair use an incredibly case-specific determination. There is no really good way to tell beforehand whether a particular use is fair use or not.

Evidently, Google Books’ use of many, many copyrighted works is fair use. I wonder whether this decision might be motivated in part by the sheer volume of copyright infringement suits that could be brought against Google if the decision had come down differently? Sometimes, federal judges can be pragmatic; the volume of copyright infringement suits that could hit the courts might indeed flood the court system since Google Books uses snippets from most published works of authorship. This influx of copyright infringement cases would interfere with other matters and completely clog the courts.

“Happy Birthday To You” Is Apparently Public Domain

For years now, we have labored under the impression that a valid copyright exists on “Happy Birthday To You.” Evidently, that copyright’s validity is … um … questionable.

It’s not often that a big, dramatic revelation happens in a court case, but in Good Morning to You Productions Corp. et al. v. Warner/Chappell Music, Inc. et al., currently before the US District Court for the Central District of California, a new piece of evidence has just turned up that turns the copyright on “Happy Birthday” on its ear. Evidently, “Happy Birthday” is a derivative of a song called “Good Morning to You,” which was published under the 1909 Copyright Act — without notice of copyright. Today, notice means little in the world of copyright, but under the 1909 Act, notice was everything. If notice of the copyright wasn’t published with the work, the copyright in the work was void.

Interestingly, the important subtitle on the song’s manuscript was blurred in the version given by Warner/Chappell to Good Morning to You Productions as a document produced in discovery (late, I might add). That made people curious. With some good document analysis, the truth came out: the work was published without notice and therefore without copyright.

This case is still ongoing at Docket #2013-CV-04460; no court has actually invalidated the copyright on “Happy Birthday To You,” but I don’t think we need to wait too long for the Central District of California to enter judgment on behalf of Good Morning to You Productions, voiding the copyright. We will soon be able to sing “Happy Birthday” without worrying about paying a royalty.