the copyright cow volume 1 issue 2
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At t o r n e y At L aw
381-8888 (206)
Timothy McCormack
I N V E N T I V E
N v e n t I
E X P E R I E X P E R I E N C E D
617 Lee Street, Seattle WA 98109
I M A G I N A T I V E
Copyright Cow™…..
Defending the American Dream
FREE PRESS BOOKS TRADE SECRETS AND CO.
SEATTLE ● INTERNET ● EARTH
The Copyright Cow Blog focuses on the untold stories of the second largest export of the United States – intellectual property and tech-nology – through the lenses of law, economics (freaky-economics) and society.
Intellectual property is comic books, cartoon characters, the “Book of Life” embodied in the Human Genome, medicine, technology, movies, websites, and, for example, the business of producing and distributing milk (a Copyright Cow favorite).
The Copyright Cow BLOG is not only for your local dairy farmer / rancher in Washington state. It is also for the CEOs of Microsoft, Boeing and Getty Images. Although Copyright Cow is a great read for any business owner, it is also good for mothers and fathers, teachers and students and anyone who wants to know more about the legal and economic forces shaping 21st century America.
The law can decide, who lives and who dies; who eats and who starves. Who gets the latest HIV medication and who does not? Who owns the critical intellectual property that, literally, holds the key to life and death for over 50 million people?
What about the economic and social forces that help to shape the law and also result in both prosperity and misfortune?
With the help of Copyright Cow, we will all be better prepared to
answer these questions, shape a better future and hopefully be a
little happier! With your help, the reader, Copyright Cow can con-
tinue to help defend the American Dream!
DISCLAIMER: This magazine is not intended to give legal
advice and is not a substitute for the same; if the reader
has a concern they should contact a knowledgeable
attorney.
FOUNDER & PUBLISHER:
Timothy B. McCormack
CONTRIBUTORS:
Timothy McCormack
Eric Harrison
Lucas Michaels
GENERAL REQUESTS:
PUBLISHING/ADVERTISEMENTS:
Also by Timothy McCormack:
With permission from:
Timothy B. McCormack
INTELLECTUAL PROPERTY: Trademarks Copyrights Patent Litigation Trade Secrets
Email: [email protected]
617 Lee Street, Seattle WA 98109
206.381.888
Experienced Intellectual Property Lawyer for Over 11Years
LITIGATION: Federal Court
State Court
Trial and Appeals
A MEMBER OF:
• Washington, Oregon and Idaho State Bar • Washington Patent Law Association
Intellectual Property Questions? PROTECT WHAT IS YOURS
Licensing
Advertising Law
Internet Law
Information Law
Copyright Infringement I didn’t Know!
Copyright
infringement
can occur
willfully or
“accidentally,
” but copy-
right law
prohibits
both.
One federal
court recent-
ly held,
“there is no
need to
prove any-
thing about a
defendant’s
mental state;
Copyright
Infringement
is a strict lia-
bility tort.” A
strict liability
tort is a legal
wrong that
does not re-
quire a
“mental in-
tent.”
Mere unauthorized use of a pic-ture downloaded from the Inter-net (even from a “free site”) is enough to create liability for a business using the copyrighted work without permission. This is true, regardless of how the in-fringement came about. Typical copyrighted works that get busi-nesses into trouble include imag-es and text “acquired” from the Internet.
Copyright infringement can occur
willfully or “accidentally,” but
copyright law prohibits both. One
federal court recently held, “there
is no need to prove anything
about a defendant’s mental state;
[copyright infringement] is a strict
liability tort.” A strict liability tort
is a legal wrong that does not
require a “mental intent.”
In other words, a copyright own-er, does not need to prove a de-
fendant intentionally infringed the copyright in order to create liability because it is a “strict lia-bility” tort [1]. If you copy a pic-ture from the Internet without permission, for example, you can be liable for damages even if you did not know the picture was cop-yrighted. That is the essence of “strict liability.”
Further, if you hire someone (an employee or an independent con-tractor or a web designer) you are also liable for using a pictures posted to your website by that third party even if you did not know what they did. Said another way, the business displaying the copyrighted work without permis-sion on their website is liable as the end user.
In fact, two or more people can
be liable for the same act or acts
of copyright infringement. This is
called “joint liability.” If parties
have joint liability, then they are
each liable up to the full amount
of the damages. Courts have
found joint liability in such cir-
cumstances as a corporation’s
president being jointly liable for
publication of imagery from a CD-
Rom. Other examples include
website owners held liable for a
third-party uploading content on
their website (owner of website,
infringed copyrights by distrib-
uting copyrighted photographs,
even when website operator did
not know that the photographs
had been uploaded onto web-
site).
If your web designer is liable so
are you. Sadly, the party with the
deepest pockets is the one that
will likely get sued.
In most cases that is the busi-
ness owner that hired the web
designer. The damages for this
type of infringement can also
be quite steep.
Under federal law, a copyright
owner can be entitled to a
$750 to $30,000 per infringe-
ment. If it is shown that the
infringement is willful the law
allows as much as $150,000
per infringement.
If you copy a
picture from
the Internet
without
permission,
for example,
you can be
liable for
damages even
if you did not
know the
picture was
copyrighted.
Double check your business insurance poli-
cies to make sure you are covered for
“advertising” injuries because these types
of claims can sneak up on you and in many
cases you might be completely unaware of
latent liabilities. Lastly make sure you have
a good contract with any website develop-
er and use only reputable companies. A
development company located abroad
might seem cheap until you get served
with a copyright infringement lawsuit. ■
[1] Educational Testing Service v. Simon, 95 F.
Supp. 2d 1081, 1087 (C.D. Cal. 1999) (holding
copyright infringement occurred because the
C O P Y R I G H T C O W ™ D E F E N D I N G T H E A M E R I C A N D R E A M !
Recent jury awards have ranged from
$675,000.00 to in excess of $1 Million dollars
in damages for copyright infringement. One
recent jury in Western Washington awarded
over one-million dollars in damages for unau-
thorized use of as few 5 photographs or imag-
es. In another recent case a jury awarded
$675,000 for infringing as few as 30 copyright-
ed works. The old adage, “ignorance of the law
is never an excuse” applies to copyright law
because even if you didn’t know, you might
still be liable.
In some cases a standard business liability in-
surance policy (“slip and fall” policies) will cov-
er copyright infringement claims made against
a business. This is called “advertising insur-
ance.” Ask your insurance agent if you have
such coverage or consult a knowledgeable in-
tellectual property or insurance lawyer can
help determine if you have such coverage.
Above all, do not use copyright content with-
out permission. A good general rule of thumb
is, “if you did not take the picture, it is not
yours.”
Copyright Cow™ is the Blog and alter-ego-Blogger name
for Timothy B. McCormack, a well established and suc-
cessful Seattle-based intellectual property, technology
and business lawyer.
This blog provides is not intended to give legal advice
and is not a substitute for the same; if the reader has a
concern they should contact a knowledgeable attorney.
ABOUT COPYRIGHT COW™
At t o r n e y At L aw
381-8888 (206)
Timothy McCormack
I N V E N T I V E
N v e n t I
E X P E R I E X P E R I E N C E D
617 Lee Street, Seattle WA 98109
I M A G I N A T I V E
Trademarks
Copyrights
Patent Litigation
Trade Secrets
Licensing
Advertising Law
Internet Law
Information Law
A MEMBER OF:
• Washington, Oregon and Idaho State Bar
• Washington State Patent Law Association
Registered to practice before the United States Supreme Court, Federal Circuit Court, Ninth Circuit Court of Appeals, and Federal Court for the Western District of Washington
When it comes to your Intellectual Property
EXPERIENCE MATTERS.
Timothy B. McCor-
LITIGATION / CIVIL DISPUTES • Federal Court, State Court, Trial and Appeals
Experienced IP Attorney for Over 11 Years
206-381-8888 • Email: [email protected]
617 Lee Street, Seattle WA 98109
INTELLECTUAL PROPERTY:
Timothy B. McCormack Attorney at Law
206-381-8888
Email: [email protected]
617 Lee Street, Seattle WA 98109
Intellectual Property Questions?
McCormack Intellectual
Property Law P.S.
206.381.888www.mccormacklegal.com 617 Lee Street, Seattle WA
98109
Call
Today!
We provide strategic planning, patent and trademark portfolio manage-
ment / development, domestic and international technology licensing,
patent position competitive analysis, technology and collaboration
agreements, technology audits, due diligence studies, cease and desist
letters, and invalidity / non-infringement opinions. We represent indi-
vidual inventors, artists, emerging technology companies, and mature
multinational corporations in matters relating to the procurement and
enforcement of domestic and foreign intellectual property rights.
We recognize that each of our clients'’ needs are unique. This, we ad-
here to an individualized approach whereby the needs of each client
are addressed in accordance with their particular business objectives.