Many are familiar with the claim of direct copyright infringement. In fact, people may also be aware of the indirect claim for contributory copyright infringement. However, a cause of action that is overlooked at times and one that should be considered where appropriate is worth discussing. A claim for vicarious copyright infringement requires three elements.

First, there must be a direct infringement by a primary party. This first element essentially requires that a valid direct copyright infringement action exists. Put another way, there must be allegations that the plaintiff owns a valid copyright and that the defendant has copied that copyright.

Second, there must be a direct financial benefit to the defendant. Such things as additional customers, increased revenue, or an increase in user base is likely to satisfy the second element. Third, and finally, is the right and ability to supervise the primary infringer on the part of defendant.

This third element really comes down to control. Similar to an employer-employee relationship, a court will evaluate the extent of control that the alleged vicarious infringer has over the primary infringer. Such things as directing actions, monitoring conduct or performance, and the ability to prevent a particular type of action will help dictate whether or not sufficient control exists so as to establish the claim.

Ultimately, understanding the copyright ownership, who uses the copyright, who derives benefit from the copyright, and other potential parties affected by the copyright will be critical in determining whether or not a valid claim for vicarious copyright infringement exists.

By: Brian A. Hall

About the Author:

Copyright Lawyer

The concept of property is something we all understand. Take real estate. Property is a home, a strip mall, a commercial building or farmland. You can touch it, walk on it and live in it. Pretty simple concept. Property is something real, ergo, real estate.

An intellectual property is different. It usually begins as an idea, takes form and becomes a book, a film, a game, a TV show or something else that people read, watch, play or otherwise recognize. The World Intellectual Property Organization (WIPO) defines intellectual property this way:

“Intellectual property relates to items of information or knowledge, which can be incorporated in[to] tangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. The property is not in those copies but in the information or knowledge reflected in them. Intellectual property rights are also characterized by certain limitations, such as limited duration in the case of copyright and patents.”

An IP differs from real property in several key ways. An IP is the product of imagination - a very difficult thing to measure or define. An IP is more easily stolen, pirated or just plain ripped off. In fact, certain countries in the world have no intellectual property agreements across international borders so you can buy a pirated copy of the latest blockbuster on the streets of Beijing today - BEFORE it premiers in U.S. theaters.

Like a house or other property, an intellectual property can be bought and sold. It happens every day. An intellectual property can be sold lock, stock and barrel, or sold off in parts, which usually delivers increased revenue to the owner of an intellectual property.

For example, rights to a copyrighted book can be sold off in many different formats: North American distribution rights, large-print rights, one-time serial rights, sole source rights, audio-book rights, film rights - the owner of a copyright can sell various types of rights as long as the sale doesn’t conflict with rights agreements already in place.

“I Have A Good Idea.”

So does everyone else in the world including my Aunt Tilly. But an idea is NOT an IP. You can’t copyright or trademark an idea. In fact, if some other innovator comes along with the exact, same idea as your brainstorm, there’s nothing you can do about it.

An idea is NOT an intellectual property. An idea becomes an intellectual property when you apply work to it - write it, design it, describe it, code it, or otherwise put some work into that idea. And the more work you put into your idea, the more of an intellectual property you own - an IP that needs protection from theft or infringement.

That protection can take the form of a registered copyright, a patent, a license, a contract or some other defining documentation that describes the parameters of the intellectual property.

That’s why it’s critical to protect your idea as you give it more and more form. You can copyright a book or film. And as the copyright holder, you own that IP, whether it’s a book, video game, movie, webinar, seminar or any other form of media. Without legal protection your intellectual property may be unprotected.

You know the famous smiley face - the one that’s burned into all of our brains? Well, the artist who created that ubiquitous icon never registered the copyright for the image and, over time, that smiley face fell in to the public domain, which means anyone can use it. Even an IP lawyer.

It’s a Jungle Out There

If you’re new to the concept of IP, but you’re in the process of creating one, i.e. you’re writing a book, coding a computer game, building a website or broadcasting a webinar, you need protection early in the development process.

The world wide web, and all the attendant “new media,” have created an insatiable demand for intellectual properties. Today, an IP - a good one - is almost like currency. It can be traded, bought and sold, used to build credibility and trust and generate revenue. And if it’s really good, that IP can generate a whole lot of revenue.

However, if you don’t know the consequences of selling your copyright to a publisher, if you don’t understand the difference between a trademark and a signature mark, if you’re unfamiliar with one-time serial rights, you may quickly discover that your IP is no longer your IP.

Intellectual property law is a complex specialty, one few attorneys practice. It involves a variety of media. It entails means of distribution, it crosses international boundaries in this global economy, it engages dealers, publishers, distributors and even rack-jobbers. And if you’re engaged in the creative process, chances are you may not even be aware of the value of your IP.

Further, you may not fully understand the risks associated with intellectual properties - especially across international boundaries.

Seek Legal Advice Early

Remember, an idea is just an idea. However, once you’ve developed that idea and put work into it, giving the idea substance, it needs to be protected with a copyright, patent or other legal document. You own something. But without legal protection, you can very quickly lose that product of imagination forever. Or, end up in court for years battling a deep-pockets IP publisher who’s in no rush to settle.

As soon as you begin shaping your idea into an IP, seek legal counsel from an experienced legal firm - a law firm that has extensive experience in IP management, IP development and, most importantly, intellectual property protection.

The earlier you obtain legal counsel during the development phase, the safer you and your IP are. Don’t take chances. This is your concept, your vision, your dream.

Consult with an intellectual property lawyer and protect what’s rightfully yours.

Protect your future. That IP may be the next big thing, and that would be a terrible thing to lose.

Just ask Harvey Ball. He created the Smiley Face as a freelance artist. He gave that million-dollar IP away.

By: Jack Yachbes

About the Author:

Gifts for Babies

For starters, just because you have paid the artists to make you a unique design does not mean that you actually own the design - you haven’t (yet) purchased the rights to the design - you’ve only paid for work performed; kind of like a license. What you want is to own the copyright to the design, so ensure that you have also including this language in your contract with the artist - and yes, get a contract, particularly in this area. It doesn’t have to be anything fancy, and you can do this yourself, but just ensure that the language states that you also own the copyright to the design created.

A copyright protects artists, authors, composers and creators of ‘works of art’ involving published or printed materials from unauthorized publication of their works without their permission. The copyright process is actually much simpler than a patent and only costs $30 in processing fees. The copyright is actually created from the moment the work is done. And there’s not necessarily any requirement for actually filing the paperwork - but it does make it much simpler to sue anyone using your design without your permission. You could still sue and perhaps win without having the copyright filing, but you would have to otherwise prove that you came up with the design first and establish that date. The copyright filing establishes the public record of your copyright, so it makes it a whole lot easier to prevail in the event you took someone to court.

As to the little copyright symbol

Using copyright to protect your music

If you want to get published, or even if you self publish your work, you will be sending copies to your agents, record companies, or other individuals. Can you trust those who get hold of your work to respect your rights, or will you discover one day that your music is being passed off as someone else’s work, while you miss out on the royalties.

Having seen my own work turn up in the hands of plagiarists who have claimed it as their own, I now take copyright very seriously, and would urge anyone to follow these simple steps.
Place copyright notices on all your work. Actually, copyright exists even if you don’t place a notice on your work, but by placing copyright notices on your work you make it clear that you are aware of your rights and you take copyright seriously. It also stops the person copying your work from saying they ‘didn’t realise’ they were doing anything wrong. It’s pretty simple really, just a statement like ‘Copyright

Apr

29

What Is Copyright?

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Copyright initially was conceived as a way for government to restrict printing. It is defined as the legal right granted to an author, composer, playwright, publisher, or a distributor for exclusively producing or publishing their original work. Work that is not copyrighted is known to be available in the public domain, and anyone is free to access such work and use it without seeking permission from the original creator.

Any piece of work protected by the copyright, is usually denoted by a ‘c’ with a circle around it (which is the symbol for copyright), or the word ‘Copyright’, followed by the name of the copyright holder and the year of first publication.

Copyright laws are governed by the Copyright Act of 1976 and the work granted with copyright (for any work created after January 1, 1978) is protected for the lifetime of the creator of the work plus fifty years after his or her death. But for any work created before January 1, 1978 (that is, prior to the enactment of the copyright act), the copyright starts from January 1, 1978, and extends up to December 31, 2002. Prior to the enactment of the Copyright Act, the common law granted copyright protection to all forms of unpublished works. However, after the enactment of the Copyright Act, the rights made available by the common-law stood abolished.

Many feel that to restrain the flow of knowledge based resource from one generation to another by using copyrights and patents is ethically and morally incorrect and that it reflects a monopolistic nature to uphold the commercial interests of the rich and the influential.

By: Pauline Go

About the Author:

About Author: Pauline Go is an online leading expert in legal industry. She also offers top quality legal tips to investor like:
Free Information On How To Beat A Speeding Ticket , Constitutional Rights And Maslow’s Hierarchy Of Needs, Steps For Getting A Patent

Scar Removal

Apr

25

Fair Use - Free Expression - Does Fairey Have Any Hope?

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Shepard Fairey’s last name is kind of ironic being that he claimed fair use, even though he just recently confessed to concealing his mistake by submitting false images and deleting others.

Tip #1-If claiming you are guilty of stealing someone’s copyrighted work based upon “fair use” at least be honest about which work you used.

A legal battle was launched in February by Fairey against the Associated Press. Fairey claimed his use of the photograph taken by AP’s Mannie Garcia of then-Senator Barack Obama appearing on the artist’s “HOPE” poster was not copyright infringement. The Associated Press fought back arguing willful copyright infringement over use of the photograph.

The artist originally stated that he based his poster on a photo of Obama sitting next to actor George Clooney. He has now changed his mind as to which AP photo he actually used in creating his work.

Fairey’s recent statement may hurt him in his case, especially since he is going to lose his attorneys led by Anthony Falzone, Executive Director of the Fair Use Project at Stanford University. The team has announced they intend to withdraw from the case since their client misled them, fabricated information and destroyed material.

Tip #2-Don’t lie to your copyright lawyer!

Despite his loss of credibility, the case brings to the front and fore a major issue in copyright law certain to affect photographers, composers and artists whose works are used in subsequent content. Subsequent users claiming fair use must show their use of the underlying work was transformative, namely the new use adds value to the original and the prior work is “transformed in the creation of new information, new aesthetics, new insights and understandings.” 4-13 Nimmer on Copyright

Apr

25

Online Stealing - Copyright Consequences and Potential Legal Exposure For Theft Of Online Content

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I wanted to write about a situation that has actually happened to my company as I believe the situation holds some important lessons for businesses that sell print content online as well as those who may be tempted to use the material created by others either without authorization or beyond the scope of a license.

My company has been in the business of selling high end legal documents for around 9 years. Each and every document that we well was originally created by me while I was practicing law. I spent hundreds of hours creating these documents to make them both unique and of the highest quality. I took great pains to make the documents original works of authorship. I went through a long process of study for each document. I did a lot of reading and study. I would read numerous agreements on the topic, create an outline, and then sit down independent of any other document and started typing as if I was creating an agreement, from scratch, without the benefit of a form to start with.

I did this for over 250 high quality, full length, technology documents for web developers, software programmers and others in the IT industry.

I then went to work packaging the documents that I created and have had a very successful business marketing these document packages. My marketing niche was to sell entire packages of 80-250 documents for the price that someone would pay for about a quarter hour of attorney time.

I later expanded into incorporation, bylaws, corporate kits, real estate leasing, trusts and wills, confidentiality forms, and corporate resolutions and continue to work on new product lines. All of my documents are originally created and represent hours and hours of study and work.

Of course the next step was to market these packages in the most cost effective manner. This has changed over time as the Internet environment has changed significantly in the 9 years that has passed since I originated this business. One of the marketing methods that I continue to use is maintaining exposure in what remains of the spider search engines. Those of you who use this marketing tool are familiar with the process of SEO; optimizing the contents of your pages, comparing keyword prominence to other pages that rank well under that keyword, etc.

As I was optimizing for one of my more obscure agreements for Google, I ran across some material that looked suspiciously similar to my packaged products. In fact, even the name of the package was the same. The only difference was that they had provided the opportunity to purchase individual documents as well as the entire package. On closer examination, I discovered that the documents in the package were my documents, being sold without modification; including some minor typos and unique wording that I use in my documents. The documents are being sold by a company that holds themselves out as being The Internet Leader In Downloadable Legal Documents.

Clearly, this type of direct copying is the most egregious of copyright violations. Even the hidden information in the documents were intact, just how I created them in the first place. The only thing that was missing from these documents was my copyright notice that was contained in a a footer in each of these documents. In total, there appears to be approximately 100 of my documents for sale on this web site.

This company is in a heap of trouble and the consequences of it will likely take down their business. As a retired lawyer, I knew exactly the steps to take which may be instructive to others faced with similar situations. I will get to that in a later article, but first let me describe a little bit about what this company may be facing.

I am clearly the owner of the copyright on these originally created documents. As a side note, there is a common misconception that you need to registered your copyright in order to maintain protection. In reality, all original works of authorship are protected from the time of creation. There are clear benefit to registering your copyrighted material that I cover in other articles. But the bottom line is that registration is not a prerequisite to receiving the protection of the Copyright laws.

Additionally, the other company has clearly violated my rights as the copyright owner. This would all need to be proved in court of course, but it is a fairly easy case.

As for penalties, this company would be liable to me for all profits attributable to these documents. I could also elect to take statutory damages instead of having to put on proof of actual damages. These statutory damages would apply even if they greatly exceeds their actual sales revenues from selling my documents. Even for a non intentional violation, the Copyright Act sets damages as $750-$15,000 per item. If the violation was intentional, statutory damages can be as high as $150,000 per item.

I am assuming there were 100 documents involved to keep it simple. This means that the range of damages would be $75,000 to $1,500,000; even if the infringement was not intentional. Direct copying is fairly strong evidence that the violation was intentional. For an intentional violation, the statutory damages for this violation would be $15,000,000.

In additions to statutory damages, the Copyright Act also permits me to collect attorney fees for pursuing the case.

As you can see, the Copyright Act penalties create a very strong incentive to avoid stealing the work of someone else online. These penalties could be applicable even if there is a valid license is in place permitting the party to use the documents with certain limitations but those limitations are exceeded. A good example would be the Articles that are submitted to Article Publishing Sites. Many of the reprint licenses state that the material can be freely reprinted provided that the author box is included. If the article is republished without the author box, the use would exceed the license that was granted to use the documents. This would be as much of a Copyright Infringement as the situation I described above and could expose the violator to similar damages.

So the lesson here is:

For the user of online material, when doing business online, abide by the Copyright Laws. The potential penalties are great and could completely destroy the business you have created. Realize that material is protected even if you obtain it for free online and even if it does not bear a copyright notice.

For the creator of online content, be vigilant. Actively look for people violating your copyright. Search for your unique content. When you find someone infringing your copyright, don’t let it slide. That is your hard work and it is stealing.

Look for my next article covering the steps to take when you find someone has violated your copyright.

By: Jon Fischer

About the Author:

Jon Fischer is the owner of the following Legal and Business Sites. Offering legal document packages for online businesses, IT companies, corporate, real estate and estate planning packages.Visit the following sites:
http://www.e-lawresources.comhttp://www.automated-incorporating.com - Incorporation and Bylawshttp://www.technologyforms.comCopyright, All Rights Reserved. Reprints acceptable ONLY if the entire article remains the same, including this author resource box!

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