Full Version: Copyright Protection & Infringement
From: Mike (EJPUBLISHER) [#1]
20 Jul 2004
To: ALL
The topic of copyrights comes up from time to time and it's probably one of the least understood areas of the law. I posted the following on another forum and then I thought that there might be a few people out there who would like to read it. Here it goes.
Maybe I can shed some light on the subject, as The Engravers Journal has the dubious reputation as the most (copyright) infringed publication in the Recognition & Identification industry, so we've had plenty of experience with the subject.
Any work (written, photographic, artwork, sound recording, etc.) created after 1-1-78 is automatically copyrighted for the creator's/author's lifetime + 75 years, or in the case of a collective work (more than one author) it's 75 years after the death of the last surviving author.
In "work for hire" situations such as hiring an employee to create original artwork, the copyright generally subsists with the person or entity which commissioned the work and not the artist or author. Work for hire is automatically copyrighted for 95 years after publication or 120 years after creation.
The copyright law changed in 1977 and then later. Under the current law most old (pre 1978) works are protected for the same time span as post-1978 works.
Some works are copyrighted as a "statutory" copyright, meaning the copyright owner has sent in a $30 fee and two copies of the published work to the U.S. Copyright office. That's the best copyright because it's absolute proof that the work is copyrighted.
A "common law" copyright is not registered so the burden of proof as to who created the work and when is on the owner of the work.
Under the old law, if anyone infringed on your copyright, you had to prove what your actual monetary damages were, which was difficult or impossible as the rip-off people usually aren't very gracious about opening up their books to you.
The new law introduces the concept of "statutory damages" which allows the owner of the copyrighted work to assess financial damages without having to prove actual monetary damages. The law also provides for "triple damages" so if you can prove that an infringer deprived you of $10,000 in sales, you can ask the court to award you $30,000 in damages, plus court costs and attorney's fees.
Intellectual property attorneys are among the highest priced, as it's one of the most specialized areas of the law.
Now legalese aside, if someone gives you a picture of their grandson or their soccer coach and wants it engraved or sublimated onto an award or gift, technically the copyright would subsist and would be owned by whoever took the picture. This is why a lot of industry people are reluctant to accept photos with a professional photographer's imprint on the photo, as professionals usually expect payment for use of their images.
However the good news is that, generally in this case, if you are doing this job upon the specific request of the customer, and the customer gives you the photo in question, then you are doing "work for hire" and it's unlikely that you would be held responsible for copyright infringement.
However be careful if you are reproducing a photo like that en mass and selling imprinted items to someone other than the original customer.
Although U.S. copyrights do not usually protect foreign works a good rule of thumb is treat it like it is copyrighted. Most major countries are signatories to the "Berne (Switzerland) Convention" which is an international agreement concerning reciprocal copyright protection.
There is one other issue that might be of interest and relevance. Aside from copyright issues, you have to be careful publishing photos of living persons with respect to invasion of privacy issues. Pictures of deceased persons may be copyrighted (e.g. by the photographer) but they are public domain insofar as privacy issues are concerned.
Most living persons can sue you for "invasion of privacy" for publishing their photo without their permission. Exception: high level politicians, movie celebrities, Donald Trump, the Royals, etc. are deemed to be "public figures" and generally cannot stop others from publishing unauthorized photos of them.
Of course be really careful of reproducing images that would tend to embarrass almost anyone, e.g. pictures of them taken in a shower or bathroom, etc.
For further reference, refer to the below link:
www.copyright.gov/circs/circ1.html
If you've read down to here, you've probably read more about copyrights that the average person needs (or wants) to know about copyrights. Anyway enjoy!
EDITED: 20 Jul 2004 by EJPUBLISHER
From: Harvey only (HARVEY-ONLY) [#2]
20 Jul 2004
To: Mike (EJPUBLISHER) [#1] 20 Jul 2004
I have moved this post to this folder because I feel it is important enough to be accessible at any time in an easily findable place.
From: Stunt Engraver (DGL) [#3]
20 Jul 2004
To: Mike (EJPUBLISHER) [#1] 20 Jul 2004
Thank you Mike. Very informative.
David "The Stunt Engraver" Lavaneri
DGL Engraving
Port Hueneme, CA
From: Ken D. (KDEVORY) [#4]
20 Jul 2004
To: Mike (EJPUBLISHER) [#1] 20 Jul 2004
Mike,
I don't understand something.
When a person hires a professional photographer who has the copyright?
At one point you said the person who commissioned the work. Later you said the photographer.
Ken Devory
From: Sei (SEIMA) [#5]
20 Jul 2004
To: Ken D. (KDEVORY) [#4] 20 Jul 2004
This is why it's one of the most complicated and convoluted legal fields. ;)
I suppose it could be based on the contract of the photographer. He could have it written into his terms that he retains the copyright to all photos he takes. You simply hire him to take his photos at your event.
Sei
From: Mike (EJPUBLISHER) [#6]
20 Jul 2004
To: Ken D. (KDEVORY) [#4] 20 Jul 2004
Dear Ken:
I'm not an attorney but in many cases it becomes a "practical" issue and not a legal one. The copyright rights generally belong to the artist/photographer, etc. who created the work, but there is room for mutual agreement. The typical work-for-hire scenario is when you have an employee working under your absolute direction and control who receives a paycheck for his or her services and not per se payment for a literary work. In that case generally you as the employer own the rights to the work.
Someone who is a freelancer, who is not under your direct control, may have a different take on the subject and could raise an argument that they retain the rights to the material and that it was their intention only to "license" you to use the material on a one-time basis or something like that.
My suggestion is when contracting with an outside contractor would be to agree up front who owns the rights to the item in question -- you or the freelancer.
For example when we accept an article for publication in The Engravers Journal, we always ask the writer to sign a "release," a legal document which in most cases gives us full and exclusive rights to the article. That's what I'd recommend if you want to avoid potential legal problems down the line.
From: Ken D. (KDEVORY) [#7]
20 Jul 2004
To: Sei (SEIMA) [#6] 20 Jul 2004
Mike & Sei,
Thank you for your responses, I have a feeling they will be helpful.
I have an etiquette question regarding this forum. I see that people usually respond with a thank you to answers given. At the same time this thread is in FAQ folder and I prefer not to contribute non-FAQ comments... to the folder.
If anyone responds, thank you in advance.
Ken Devory Jr.
From: Harvey only (HARVEY-ONLY) [#8]
20 Jul 2004
To: Ken D. (KDEVORY) [#7] 20 Jul 2004
As a moderator, the answer is, "Duhhh, I do not know which is the proper thing."
Do what you feel is right for you and I think that will be fine. If I wanted absolutely no replies I would have locked it for discussion. I felt that there might be some good out of discussion so I left it open. It seems to have been a good move.
From: Michael [#9]
21 Jul 2004
To: Ken D. (KDEVORY) [#7] 23 Jul 2004
Just my opinion, but when you are offered or receive something of value, requested or not, from some one else, it is always correct to say thank you.
Keep smilin,
Michael