Deborah Gonzalez, Esq.Cobb Photographic SocietyOctober 20, 2014Protecting Your Photographic Work

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DISCLAIMER

This presentation is for educational purposes only and does not constitute legal advice. It is recommended that you seek legal counsel for specific matters.

All copyrights and trademarks of images belong to their respective IP owners and are used under Fair Use for educational purposes.

IntroductionsCopyrightsOther Legal IssuesCasesQ&AIntroduction and Overview

Introduction

Who am I?Who is in the room?Why is law important for artists?

CopyrightsWhat is copyright?Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. US Copyright Office: Circular 40 Visual Art

CopyrightsBundle of RightsRight to Reproduce the Work: the right to copy, imitate, reproduce, duplicate or transcribe the work in fixed form.

Right to Derivative Works: the right to modify the work to create a new work. A new work that is based upon an existing work is a "derivative work".

Right to Distribution: the right to distribute the work to the public by sale, rental, lease or lending.

CopyrightsBundle of Rights (cont).

Public Display Right: the right to show a copy of the work directly to the public (e.g., hanging up a copy of a painting in a public place) or by means of a website, film, slide, or television image at a public place or to transmit it to the public.

Public Performance Right: This is the right to recite, play, dance, act or show the work at a public place or to transmit it to the public.

CopyrightsWhat does copyright protect?

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

CopyrightsWhen is my work protected?Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. (At the click).Do I have to register with to be protected?No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.

CopyrightsWhat happens if someone infringes me?Document the incident research for all the facts and dataMake sure your copyright is registeredConsult an attorneySend a Cease and Desist LetterIf the item is online send a DMCA Take Down NoticeWeigh the pros and cons of pursuing litigation/arbitration

Digital Millennium Copyright ActPassed in 1998 under President Clinton.Implements two 1996 treaties of the World Intellectual Property Organization (WIPO)Criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. Heightens the penalties for copyright infringement on the Internet and maintains that writers/authors have specific rights in the works they produce for online vs. other environments.Title II of the DMCA the Online Copyright Infringement Liability Limitation Act - a series of safe harbor clauses for ISPs

Creative Commons LicenseAttribution (CC BY): This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation.Attribution Share Alike (CC BY-SA): This license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. (Wikipedia uses this license).Attribution NoDerivs (CC BY-ND): This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.

Creative Commons LicenseAttribution-NonCommercial (CC BY-NC): This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they dont have to license their derivative works on the same terms.Attribution-NonCommercial-ShareAlike (CC BY-NC-SA): This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.Attribution-NonCommercial-NoDerivs (CC BY-NC-ND): This license is the most restrictive of our six main licenses, only allowing others to download your works and share them with others as long as they credit you, but they cant change them in any way or use them commercially

Copyrights

Copyright SymbolPublic Domain/Fair UseAppropriation/First Sale DoctrineFirst Amendment/Censorship/ObscenityWork Made for Hire/Contracts/LicensingPhoto Releases/Online Waivers/Consents

Visual Artists Rights ActThe Visual Artists Rights Act of 1990 (VARA), 17 U.S.C.106A, is a United States law protecting artist rights.VARA was the first federal copyright legislation to grant protection to moral rights. Under VARA, works of art that meet certain requirements afford their authors additional rights in the works, regardless of any subsequent physical ownership of the work itself, or regardless of who holds the copyright to the work. For instance, a painter may insist on proper attribution of his painting and in some instances may sue the owner of the physical painting for destroying the painting even if the owner of the painting lawfully owned it.

Visual Artists Rights Act

Right to claim authorshipRight to prevent the use of one's name on any work the author did not createRight to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation

Visual Artists Rights Act

Right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation.Additionally, authors of works of "recognized stature" may prohibit intentional or grossly negligent destruction of a work.

Publicity Rights/Defamation

Other Legal Issues?

Exhibit ConcernsTransportationInsuranceCatalogue (Photos of Art Work)Online Availability of ImagesContract

Other Legal Issues?

Sale ConcernsWho represents you?Silent Auctions/Tax IncentivesPaying Tax on Income for SalesDocumentationBill of SaleAuthenticity Letter

Cases

Cases

Cases

Cases

Cases

http://arnesvenson.com/theneighbors.html

Cases

Social Media Platforms DCMA Take Downhttps://help.instagram.com/454951664593304https://www.youtube.com/yt/copyright/https://www.flickr.com/help/guidelineshttps://www.facebook.com/help/400287850027717/https://support.twitter.com/forms/dmcahttps://www.linkedin.com/legal/copyright-policyhttps://about.pinterest.com/en/copyrighthttps://www.snapchat.com/terms

Resourceshttp://blog.kenkaminesky.com/photography-copyright-and-the-law/http://www.copyright.gov/fls/fl107.htmlhttp://www.kodak.com/cluster/global/en/consumer/doingMore/copyright.shtmlhttp://copyright.gov/circs/circ40.pdfhttp://99designs.com/designer-blog/2013/04/19/5-famous-copyright-infringement-cases/http://www.digitaltrends.com/photography/court-cases-involving-photographers/http://photosecrets.com/case-lawhttp://www.forbes.com/sites/johnvillasenor/2013/06/22/copyright-infringement-and-photo-sharing-a-new-lawsuit-tests-the-limits-of-fair-use/http://www.nytimes.com/2014/02/22/arts/design/photographers-band-together-to-protect-work-in-fair-use-cases.html?_r=0

Q&ATHANK YOU!Deborah Gonzalez, Esq.Email: dgartlaw@att.netWebsite: www.dgonzalezesq.comTwitter: @DG_IPLAW