Why and How artists MUST take action when their work is infringed.
Original post here
By Gordon Firemark | October 15, 2008
Every creative person, whether an
actor, writer, filmmaker, musician or painter runs the risk of his or
her work eventually being copied without permission.
While sometimes, this copying is done with a clear profit motive, an
increasingly common vector by which unauthorized copies appear is
through well-intentioned friends and fans posting an artist’s song,
photograph, painting or video in an online forum such as Youtube,
Facebook, MySpace, or any of the myriad other, similar sites.
Despite the good intentions of the friends and fans, however,
unauthorized copying can significantly impact an artist’s career and
business by undermining the market for sales of the work. Since
virtually every creative work, once once fixed in some tangible form,
is protected by copyright law, such unauthorized copying of a protected
work amounts to infringement.
As in other areas of the law (such as matters involving trademarks,
rights of publicity, privacy, etc.), it is important when confronted
with infringement that the owner of the work in question take
meanginful measures to ensure that the infringement is stopped.
Failing to take such action may result in forfeiture of rights.
How to cope with infringement
The doctrine of Laches
is based on the maxim that “equity aids the vigilant and not those who
procrastinate regarding their rights”; Neglect to assert a right or
claim that, together with lapse of time and other circumstances,
prejudices an adverse party. Thus, when a party has been guilty of
laches in enforcing his right by great delay and lapse of time, this
circumstance can operate to bar a remedy. In essence, he who sits on
his rights risks losing them.
In addition, statutes of limitations impose strict time limits in which an aggreived party must initiate a lawsuit or be forever barred.
So, how can an artist whose work has been infringed take action?
1. Cease and Desist Letters.
The traditional approach taken by an artist whose work is infringed
is to send the infringer a letter notifying them of the infringement,
and demanding that the infringer cease and desist
from any further acts of infringement. Although any party can send
such a letter, most artists prefer to have an entertainment or
intellectual-property lawyer prepare and send the cease and desist
letter, since doing so demonstrates that the matter is serious, and
that legal action is contemplated if the infringer fails to comply with
the letter’s demands. Care should be taken in preparing a cease and
desist letter, since improper threats, or assertions contained in the
letter can later be used as defenses, or to demonstrate an admission
which could ultimately hurt the case if brought to court.
2. DMCA Take-down notices:
When an infringement occurs through an online informations service,
action must be taken not only against the user who posts the content,
but also against the online service hosting the material. The proper
approach to dealing with the individual user is a Cease and Desist
letter, as discussed above. However dealing with the online service
is a bit more complicated. Under the Digital Millenium Copyright Act
(DMCA), an information service provider is immune from liability for
certain kinds of content posted by users, provided it has implemented
mechanisms for take-down of offending material, and for coping with
repeat-offenders. The procedure for having the offending material
removed from a website involves serving the provider’s designated
representative with a properly drafted Take-down notice.
Again, there is no requirement that a take-down notice be prepared by a
lawyer, the rules are deceptively simple seeming, but meticulous
attention must be paid to detail in preparing the notice. For this
reason, many victims of online infringement prefer to have an attorney
handle the take-down procedure. Fortunately, the cost of preparing the
notice is relatively small, but unfortunately, is not recoverable from
the service provider.
Caveat: Fair Use
- Modern U.S. Copyright Law has codified a doctrine that originated in
court-made interpretations of copyright law and the first amendment
guarantee of free speech. This Fair Use Doctrine allows for limited
uses of portions of copyrighted works when the purpose of such use is
to advance public discourse, educate or comment on the original work.
At least one recent case involved a YouTube video of a toddler dancing
with Prince’s “Let’s Go Crazy” playing in the background. Following a
takedown notice, the video’s creator, (mother of the little dancer)
challenged YouTube and and the record company, and the judge agreed
that the takedown notice failed to consider fair-use, and was thus
improper.
3. Licensing/permission:
Another, often more constructive method for dealing with an
unauthorized copy of a work, is to simply authorize it by granting the
copier a license or permission for the use in quesiton. Care should be
taken, however, to articulate as specifically as possible, the scope of
the authorization, and any limitations or conditions on the licensed
use. Additionally, care should be taken that the license given is
not so broad, and open-ended as to have no legal validity.
In the field of trademark law, a license arrangement where the
trademark owner fails to maintain any quality control or supervision in
relation to the manufacture and provision of products and services
supplied by the licensee is referred to as a “naked license”, and can
have an adverse impact on the owner’s rights . Whether this principle
applies also to copyright infringements is an open question, but care
should be taken in crafting license or permission arrangements.
It is also important that the license agreement actually be an
agreement. It is not enough to simply send an alleged infringer a
notice stating that you’re giving them permission they haven’t
requested. It is best to ensure that there is some quid pro quo in the
transaction, however small.
One increasingly popular approach to licensing of works is the Creative Commons License mechanism,
which allows the author of a work to grant broad permissions for
reproduction and distribution of the work, while imposing restrictions
on the nature of such use, requiring attribution, and that new works
incorporating the copied material also be licensed under the creative
commons license mechanism.
Unfortunately, the fair use exception to copyright infringement and
the doctrine of laches can be in direct conflict. A content owner
whose work is copied must act to stop the copying, but risks issuing a
takedown notice or cease and desist letter against a use that is
protected under Fair Use and the First amendment. While I believe that
content owners should attempt to open a dialogue with the alleged
infringer before issuing such notices, It is incumbent on them, when
faced with an unauthorized use, to take action or risk losing important
and valuable protections for their intellectual property.
The best advice is that if your work is copied and circulated
without permission, you should consult an experienced entertainment and
media lawyer. Failure to take action can result in the loss of
important protections and rights.
About Gordon Firemark:
Gordon Firemark has been practicing entertainment law since 1992 and
represents creative and business people, helping their realize their
dreams in the enterainment and media industries. He has worked as
counsel to the writers, directors, and producers of numerous films and
television shows. He's also skilled in the representation of on-camera
talent, as well as songwriters, recording artists and music publishers.
Mr. Firemark's practice is oriented around a collaborative
philosophy, and offers value, commitment, and a level of personal
service not available from larger firms.
Please visit his official website at http://production-lawyer.com
and his entertainment law podcast at http://entertainmentlawupdate.com.