Santa Claus 365 or Rampant Theft?

copyright
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Your own office has needs for information and illustrations. Where do your employees find it? The internet! Today, it seems that everything you need can be found there (just like Santa Claus). So just the “right thing” is copied and put into a blog or a website page.

Many of us and our clients have found just the right photo on the massive Getty Image site. That site has become very popular among photographers because they have a large audience and it is a pay-for-use site. Unfortunately, many copiers simply don’t understand the need to – or bother to – pay for their use. They express surprise and anger when they get a notice demanding payment. Many just tear it up! Then Getty comes back to ask for even more money, as they have involved their lawyers.

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To the copier-without-permission, such copying seems reasonable and the copier may label the source of the demand a troll. But to the owners who invested their time to create a desirable, unique work, they are standing up for their rights and protecting their investment – the American way!

No matter what your main area of practice, people will ask you about these matters. Here are some basics.

Copyright at its simplest is the legally recognized right to copy. Someone who creates a literary, musical or artistic work automatically owns the copyright, when it is reduced to a tangible form. You and your clients should put the required notice on their work immediately. That notice is © [year(s) created] [owner] all rights reserved. The “all rights” phrase is no longer legally required. It is still used to warn others and may deter considerate people.

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Copyright certificates are considered straightforward to obtain; people have mailed in their copyright applications with two copies for over a century. That can still be done, but a backlog of applications for the copyright office awaits inputting information and application review. Today, we are experiencing delays of well over one year – more like a year and a half. In the past decade, the copyright office has instituted an electronic system with a lower fee and faster turnaround – a mere four to six months! That could be a long wait for a product with a short shelf life or to stop an infringer. When our client demands quick action, we use an expedited electronic method to obtain the certificate in less than a week. It triples the cost, which still pales compared to litigation fees.

While the copyright application is relatively short (like other business applications), it requires a knowledge of copyright law, particularly work-for-hire concepts. Clue: it’s not what it sounds like! In many instances, we prepare a client’s first copyright application, requiring consultation so it is correctly prepared, and then they have a template for future use. This has been particularly helpful for song writers, photographers, writers, etc.

Self-publishing book authors have told me they are comfortable without a copyright certificate. They usually do not understand the important roles of the copyright certificate. Applying for the copyright before the work is copied gives the owner the right to attorneys’ fees. The one-time cost to obtain the certificate, even with a professional fee, is less than a six-month auto insurance payment – cheap insurance to have your attorney fees paid! Also, the copyright certificate is the most efficient way to get e-commerce companies to remove an infringing product from their sites. In addition, when the owner has that certificate, we help them get to ICE (customs) to stop infringing shipments. We attorneys can make sure that the client’s shipments from China (etc.) still get through automatically. And finally, if the owner wants to expand outside the United States, any distributor will merely have it copied in his country – unless the owner already has a U.S. copyright that basically has worldwide coverage.

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Let’s close with another story. After 9/11, an entrepreneur designed a decorative bumper sticker that millions used to express solidarity with fellow Americans as well as honor the first responders. The entrepreneur promised to donate $2 of every sale to first responder welfare. Soon copiers took over the market with half-priced stickers. Without a copyright and no help from ICE to stop cheap imports, the entrepreneur went belly up and first responders received only a fraction of what they should have.

With the growth of e-commerce, this can happen to your clients, too. The people who make a living from copying are doing very nicely, while the creative entrepreneurs struggle to reap profits from their ideas. The entrepreneur’s quick sales can evaporate without protection.

What is it worth to help a client protect its market? Barb Luther

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