The Law Firm of Stacey A. Davis

Entertainment & Intellectual Property Law

Debunking 5 Common Copyright Law Myths

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  1. I have to register with the U.S. Copyright Office to get a copyright in my work.  Wrong.  As soon as your work is in a fixed, tangible form (such as putting those song lyrics on paper), you have common law rights in that work.  Now, that’s not to say you shouldn’t federally register your work with the U.S. Copyright Office.  Federal copyright registration provides many additional benefits, including the right to recover statutory damages in a copyright infringement action.  As registration fees are as little as $35, copyright registration is always a wise investment.
  2. I’m covered, I’ve got a “poor man’s copyright.” Not even close. For those who don’t know, a “poor man’s copyright” is where you mail yourself a copy of the work in order to establish a date of creation.  The reality is a poor man’s copyright is not a substitute for registration and will not constitute proof of registration in a copyright infringement action.  The only way to secure a federal copyright registration is to register your work with the U.S. Copyright Office. For more information on how to obtain a federal copyright registration see my post, Copyright Basics for Filmmakers.
  3. If there’s no copyright notice, it’s free for the taking.  Good luck with that.  Copyright applies regardless of the presence of a copyright notice.  Previously under U.S. copyright law, there was a requirement that works published prior to January 1, 1978 contain a notice provision, but that is no longer required.  The U.S. is now a signatory to the Berne convention which makes copyright notices optional.  That said, there is no harm in including a copyright notice on your work as it could act to deter infringement.
  4. I copied less than 10% of the work, I’m okay. There is no magical amount of copying that is acceptable.  It doesn’t matter than you that you only copied 30 seconds of a song or three lines from that short story.  Copying is copying.  Now, there may be circumstances where you can use the copyrighted work without securing permission from the copyright holder due to a fair use exception, but don’t rely on some arbitrary, magical number as a get out of jail free card.  It doesn’t exist.
  5. Who needs permission?  I gave the author credit.  Imitation may be the sincerest form of flattery, but unfortunately flattery is not a defense to copyright infringement.  Giving the owner of a work credit on your blog or ad campaign, is not a substitute for securing permission prior to use.   The old adage that it’s better to ask for forgiveness than permission isn’t going to get you very far in a copyright infringement action either.

For more information on copyright law or other intellectual property topics, contact Stacey Davis at sdavis@staceydavislaw.com or 205.777.9906.

Stacey Davis is an entertainment lawyer specializing in intellectual property law, and can assist clients with copyright registration and other copyright law issues.

Copyright Basics for Filmmakers

logo A form of intellectual property, a copyright protects “original works of authorship fixed in any tangible medium of expression.”  Remember, copyright does not protect an idea, but rather the expression of that idea.  Copyright also does not extend to titles, names, short phrases or slogans and factual information (although, in some cases, trademark protection may be available).

Copyright protects both published and unpublished works and applies to the following types of work:

  • Literary works, such as novels, poems, stories
  • Musical works, including any accompanying words
  • Dramatic works, including any accompanying music
  • Pantomimes and choreographic works
  • Pictorial, graphic, and sculptural works
  • Motion pictures and other audiovisual works
  • Sound recordings
  • Architectural works

A copyright holder possesses what is commonly referred to as “bundle of rights.”  These rights include the exclusive right to (1) make copies of the work; (2) distribute the work; (3) publicly perform the work; (4) publicly display the work; and (5) make derivative copies of the work.

As illustration, imagine that Sequel Films is the copyright holder in the film NEVER SAY DIE 5. This copyright holder status affords Sequel Films, or an authorized representative, the exclusive right to license the distribution of NEVER SAY DIE 5 through theatrical release.  Only Sequel Films can authorize the playing of the film’s DVD at Free Friday Flicks in Any Town, USA.  And, only Sequel Films, can produce NEVER SAY DIE 6 (a sure fire hit). As you can see, copyright protection is crucial to a filmmaker’s commercial exploitation of her film.

Federal registration of your script or film is no longer necessary to secure copyright protection, but registration with the U.S. Copyright Office does provide important additional benefits, such as allowing you to bring a lawsuit for copyright infringement.  The minimal fees associated with registration is well worth the investment.

Federal copyright registration is an easy and inexpensive process.  Simply visit the U.S. Copyright Office at www.copyright.gov to submit an online application through the eCO (electronic copyright office) program.  The online fill in the blank process takes less than thirty minutes from start to finish.  Choose Form PA for registering a screenplay or completed motion picture and complete the following fields:

Title of the Work –Identify the title of the work and provide a brief description of the work.

Publication Status – If the work has not been published, select “no” and identify the year that the work was completed. If the work has been published, identify the year the work was completed, the month, day and year of first publication and the country of first publication.

Author – Identify the Author of the work by first and last name. If the work is a ‘work made for hire’, identify the full legal name of the entity for whom the work was created.  Remember, a ‘work made for hire’ is defined as: (1) “a work prepared by an employee within the scope of his or her employment”; or (2) “a work specially ordered or commissioned for use as a contribution to a collective  work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

On this page, the registrant will also identify the citizenship or domicile of the Author, as well as the date of birth and date of death (if applicable) of the Author.

Finally, if applicable, identify whether the work is an anonymous or pseudonymous work.

Author’s Contribution – Here, indicate what contribution the Author has made to the work.  For example, if the work being registered is a screenplay, mark the “Text” box.

Copyright Claimant – Sometimes, the Copyright Claimant will be the same as the Author.  Other times, such as in the event of an assignment of the copyright, the Copyright Claimant will be different from the Author.  The Copyright Claimant is the person or entity claiming ownership in the work.  If the Copyright Claimant is different from the Author, identify how the Copyright Claimant is claiming ownership in the work (such as via assignment), referred to as a “transfer statement” by the Copyright Office.

Preexisting Material – Indicate whether there are any limitations or exclusions to the copyright claim.  For example, if the film contains any preexisting copyrighted materials, then exclude them here.

Rights and Permissions – Identify the person or entity responsible for managing the copyright.  A registrant has the option to authorize a third party, such as an entertainment attorney, to manage the registration on behalf of the claimant.

Correspondence – This field requests the contact information for the person or entity authorized to speak to the Copyright Office regarding the application.  A registrant can identify a third-party, such as an entertainment attorney, to speak with the Copyright Office regarding questions about the copyright application.

Once the form is complete, the registrant will be instructed to make payment of the required registration fee (ranging from $35 – $55).  Upon receipt of payment, the registrant will be prompted to satisfy the deposit requirements.  Depending upon the type of work being registered, a registrant can either electronically upload or mail the required deposit copies.  If the application is accepted, a registration generally will be issued within four to eight months of filing.

Looking for a copyright lawyer? If you have any questions regarding copyright law or need assistance securing a federal copyright registration for your work, please contact Stacey Davis at sdavis@staceydavislaw.com or 205.777.9906.

Stacey Davis is an entertainment attorney who advises filmmakers and other motion picture industry professionals on copyright law as well as other intellectual property and entertainment law issues. www.staceydavislaw.com

Casting Call: UTOPIA

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FOR IMMEDIATE RELEASE

Birmingham, Alabama – The Conlin Company is seeking to cast additional talent from the Birmingham area for the Fox reality television series, UTOPIA.

UTOPIA chronicles 15 pioneering Americans who wave goodbye to the lives they’ve known, move to a remote location, and set out to create a society from scratch. They’ve got limited supplies, wildly diverse backgrounds, and zero bathrooms. The Utopians will make every decision about how they live and work. Will they choose democracy or dictatorship? Capitalism or socialism? Fidelity or free love? Which religion, if any, will prevail? Will they punish or forgive? Keep or share?

If you could restart the world, what would you do differently?

Season one of UTOPIA is currently airing on the Fox network on Fridays at 7:00 C.S.T.

Interested talent should be available to audition in the Birmingham area.  To apply online, visit http://www.utopiatvcasting.com/how-to-audition.

For more information contact, Jordyn Stewart at jordyn@theconlincompany.com.

More information about The Conlin Company is available on the casting company’s website at http://www.theconlincompany.com/

Insurance Overview For Filmmakers

logoThe film and television industry boasts a myriad of insurance options for just about every conceivable contingency.  Some, like errors and omission insurance, are a must have, while others are dependent upon your particular circumstances.  From equipment floaters to adverse weather conditions, there are insurance coverage options for every type of production (big or small, doc or narrative, short or feature).

General Liability (Film Production) Insurance:

General liability insurance protects the production company against all aspects of film production, including claims of property damage.  If you plan to shoot on location, property owners (both private and municipal/governmental) will require you to obtain general liability coverage.  General liability insurance also protects against claims of bodily injury that can arise as a result of your filming activities.

Equipment Floater:

If you own equipment and plan to move it from location to location, you may consider an equipment rider to protect against damage, loss or theft.  In addition, if you plan to rent equipment for use during filming, the owner of the equipment may require that you provide insurance to cover the equipment during your term of use.

Errors and Omissions:

Errors and Omissions insurance, commonly referred to as E&O insurance, protects filmmakers against claims and lawsuits arising from acts and omissions of the production company relating to the film.  E&O covers defamation, invasion of privacy, misappropriation and trademark and copyright infringement claims among other claims.  E&O will not protect against intentional conduct or breach of contract claims by the production company.

Traditionally, E&O insurance is secured at the end of production and is a requirement for securing distribution.  Sometimes, however, E&O insurance is obtained at the beginning of the production process to prevent exclusions.  Other times, placement is required by financiers prior to the release of funds.

Securing E&O insurance can be a time-consuming process.  The application is often lengthy (running 10+ pages) and there are many clearance procedures to work through.  For more information on film clearance, see my Clearance of Rights summary post: http://staceydavislaw.com/uncategorized/clearance-of-rights/

The standard E&O term is 3-5 years and can range in cost from $2,500 to several thousand dollars.

Worker’s Compensation:

Like most businesses with employees, worker’s compensation is a necessity (as dictated by state law).  Workers comp provides replacement income and covers the medical expenses of the cast and crew (employees) who are injured on the job.

There are several payroll assistance companies who provide this type of insurance for the film’s employees (as technically they are employees of the payroll company).

Negative/Video Film Insurance:

As the name implies, negative film insurance insures the production company against any loss, damage or destruction that may occur to the film negative or video during shooting.  Coverage examples include loss or destruction of the film during transportation.  This insurance covers the cost of the reshooting.  Sometimes loss or destruction of a negative due to a camera malfunction or faulty stock is included in this coverage; other times, such coverage is only provided through a separate faulty stock and processing rider that is combined with the negative and videotape coverage.

Negative film insurance can run around $750-$1000.

Completion Bond:

A completion bond guarantees the financing to complete the film in the event the production company exceeds the production budget.   For example, if the production company goes over budget, the completion bond is invoked and the completion bond company has the right to take over the production.  Sometimes, a completion bond company will do a “soft takeover” and look over the producer’s shoulder rather than actively assume production responsibilities.  Once the bond is invoked, the completion guarantor has priority over other investors on the project.

Sometimes outside investors will require a completion bond in order to secure their financing funds.  A completion bond can cost around 3-6% of the negative cost, however, 50% of that generally is refundable after delivery of the film.

For more information about insurance available to film productions, or for a list of brokers and insurance providers available to assist you with your coverage needs, please contact Stacey Davis at The Law Firm of Stacey A. Davis, LLC, 205.777.9906 or sdavis@staceydavislaw.com.

Protecting the Value of Your Company’s Social Media Accounts

You’ve spent countless hours building the social media brand of your company.  You’re on Twitter.  Facebook.  LinkedIn.  But what if one day the employee assigned to manage those accounts leaves?  And, takes all of that information and good will with him?

In 2011, PhoneDog (a mobile phone site) sued its former employee, Noah Kravitz, alleging that he had misappropriated company trade secrets, intentionally and negligently interfered with PhoneDog’s business relations and converted company property to his own use.  Why the bad blood?

During Kravitz’s stint as a PhoneDog employee he had compiled 17,000 Twitter follows on the account @PhoneDog_Noah.  When he left the company, he changed that account to @noahkravitz and instantly “flipped” those followers to the new account.

PhoneDog complained that it helped establish Kravitz’s ability to develop an identity on Twitter and other social media accounts and that those followers belonged to PhoneDog, not Kravitz.  Unfortunately, there was no written documentation in place setting out who “owned” the followers.

In the lawsuit, PhoneDog sought damages in the amount of $2.50 per month, per Twitter follower Kravitz took with him.  Yep, you read that right.  That’s $42,500 per month for these followers.

The Northern District of California rejected Kravitz’s early attempts to dismiss the lawsuit, but the parties later settled on undisclosed terms leaving us to wonder exactly how much the parties ultimately valued those Twitter followers.

In Christou v. Beatport, LLC, a case out of the District of Colorado, a DJ booking agent left the employ of plaintiff’s nightclub and opened a competing nightclub.  When he left he took with him the login information and friends list of the nightclub’s Myspace account.  He then began to use the Myspace page for his new competing business, Beatport, LLC.  His former boss filed suit alleging trade secret misappropriation among other claims.

The court rejected defendant’s motion to dismiss and allowed to go forward the claim that a Myspace page and the associated friend list can constitute protectable trade secrets.  The case went to trial in July 2013, but it does not appear that the trade secret claim was submitted to the jury.

These and other cases illustrate the vulnerabilities companies face when it comes to retaining their social media interests.  Here are some suggested best practices aimed at helping companies ensure that their social media accounts are protected:

  • Establish ownership in any social media account or “handle” with the company
  • Don’t allow employees to create a personalized handle using part of the company’s name (like in the PhoneDog case) as that can lead to confusion or require that such account be turned over to the company upon employee’s departure from the company
  • Assign more than one employee to maintain company profiles
  • Consider adding a clause to any employment agreement that requires former employees to unlink/defriend LinkedIn, Facebook, and other social network contacts connected with the company.

For more information or if you have any questions contact Stacey Davis at The Law Firm of Stacey A. Davis, LLC, 205.777.9906 or sdavis@staceydavislaw.com.

Clearance of Rights

The film is in the can and you are ready to see your DVD in Wal-Mart’s across the country.  Not so fast. Prior to inking that distribution deal you must face the dreaded clearance of rights.  Many first time filmmakers do not think about clearance issues until they receive an E&O insurance quote with a laundry list of requested legal documents.  From there, the barrage of questions begins.  What’s a script clearance report and how is that different from a copyright clearance report?  I need a title clearance report and a chain of title – isn’t that the same thing?

Savvy producers know that clearance issues are best dealt with early and often.  Here is a quick primer on the various clearance issues at play and the documentation necessary to satisfy those insurance brokers.

Script Clearance Report – This report is produced during the pre-production stage.  An entertainment lawyer (or other qualified party) will review the final shooting script looking for any and all potential clearance issues, such as possible copyright or infringement areas, and highlight those for the production company.  The goal of this report is to put the production company on notice of any potential issues so they can be resolved in advance.  No rights are actually cleared or secured as this stage, but the report provides the producer with a list of what needs to be cleared, such as film clips or artwork.  The report also may identify potential trouble spots.  For example, if your main character is a prostitute named HILDY BOTTOM and she lives in Cleveland with a phone number of 216.222.2222 and there just happens to be a HILDY BOTTOM living in Cleveland with a similar telephone number, you have a problem.  Having this kind of information up front allows a producer to make smart, creative decisions with the script.

Film Clearance Report – This report is similar to the script clearance report, but here the review is of the final cut of the film, rather than the script.  The report identifies locations, logos, film clips, artwork, etc. that need clearance.  As a general rule of thumb, releases are not necessary when the property is considered “incidental background” or is non-identifiable.  Sometimes this requires a judgment call, with the most prudent practice to be to error on the side of obtaining a release.

Clearance of film clips can be particularly laborious given the range of needed permissions.  These include releases from the copyright owner, to all people appearing in the clip (union vs. non-union), and potentially musicians, or underlying rights owners to the musical compositions.

Chain of Title –A film’s chain of title is the unbroken record of ownership in the legal rights to the film, including copyrights.  A chain of title identifies the origination of the copyright in the film and underlying property (such as the screenplay) and any transfer or assignment of those rights.  The report helps to identify any breaks in the chain of title.  Insurance providers, distributors and others will require a complete chain of title.

Good documentation on the front end helps ensure that the production company does not hit any roadblocks as it nears the finish line.  In other words, make sure all necessary documentation is in place before the cameras roll.  This includes (1) tracking down all copyrights in any source material; (2) drafting and executing proper contracts, assignments and IP transfers; (3) registering the script and film with the United States Copyright Office; and (4) recording copyright transfers and assignments with the Copyright Office.

Copyright Clearance Report – A copyright clearance report recaps and expands upon the information found in a chain of title.  The report will include copies of all relevant agreements, assignments, transfers and registrations as proof that the film has a clear title and that copyright ownership is vested in the production company.  The copyright clearance report also will include an opinion by an entertainment lawyer that based on all of the information provided, the copyright in the film is clear and there are no breaks in the chain that need to be addressed.

Title Report – This report identifies all of the films, books, songs, plays and other works, that bear the same or similar titles to yours.  Thomson CompuMark provides a comprehensive U.S. Full Title Search for $750 (with a three-day turnaround).  Often times, insurance providers will require a legal opinion to accompany the report that states whether the title is available for use.

Many producers believe that when they register their film with the U.S. Copyright Office, the title is protected too.  Not true.  Titles to single creative works, such as films and books, are not copyrightable.  Like other short phrases, slogans and names, titles do not have sufficient original content to necessitate protection.  Titles, however, may find protection under trademark laws.  For example, a title that has achieved “secondary meaning” in the marketplace may seek registration with the United States Patent and Trademark Office.

If you are a signatory to the MPAA, you can register your title and preclude other MPAA registrants from using the title.  The MPAA only affords protection to those who have signed the agreement which includes all the major studios and many of the larger independent production companies.  Although the MPAA provides protection for signatories, there is reason for smaller production companies to abstain from registration.  The MPAA is funded by major studies and the arbitration panels that decide disputes are largely comprised of arbiters from the major studios, thus creating a potential bias for the studios.

For assistance in preparing any of the above reports, or if you have any questions, please contact Stacey Davis at The Law Firm of Stacey A. Davis, LLC, 205.777.9906 or sdavis@staceydavislaw.com.

Terms and Conditions Policies: A Primer

A terms and conditions policy is a contract between the website owner and the user.  Importantly, the policy identifies the owner of the website’s content and allows for that content to be licensed to users.  The policy also (attempts to) limit an owner’s liability through disclaimers.

The key terms of a terms and condition policy include, disclosure language, a disclaimer of liability, a license of the content to third-parties, and restrictions on use of the site by visitors.  Suppliers of goods and services should also have a separate e-commerce policy that identifies the terms and conditions of each sale, any warranties (or disclaimer of warranties), delivery terms and any return policy.  These policies also identify the terms upon which goods and services are supplied to customers.  In fact, some payment providers require e-commerce terms and conditions before you can open a merchant account.

The enforceability of website terms and conditions policies has varied over the years.  Overall, courts have tended to enforce “click wrap” agreements as long as a user has been afforded an adequate opportunity to read the terms.  (Click wrap or click through agreements make the user click on a button such as “OK” or “I agree” to indicate your asset to the terms of the policy.)  Whereas, “browser wrap” agreements (polices found on the face of the website that do not require a user to indicate assent) have been found to be unenforceable in some circumstances.  Among the factors courts consider in determining the enforceability of these types of agreements, include whether the policy is easy to find on the site, accessibility of terms from all areas of the site, legibility, whether an approval button clearly indicated assent, whether legal notices were mixed in with the marketing message of the website and the user’s ability to retain an electronic or print form of the policy.

Cutting and pasting from existing policies may offer a quick fix, but such tactics only work if the terms are valid, enforceable and sufficiently relevant to your website.  What is relevant to a website posting general information about weekly happenings in a certain city may not be relevant to, or broad enough to protect, an e-commerce site.

For assistance in drafting your company’s terms and condition policy, or other end user agreements, please contact Stacey Davis at The Law Firm of Stacey A. Davis, LLC at 205.777.9906 or sdavis@staceydavislaw.com

Third-Party Content On Your Website: Best Practices

Posting Third-Party Content:

Copyright owners have certain exclusive rights, including the right to copy, display, publish and perform their works.  A copyright in a work exists as soon as it is put in fixed, tangible form.  Many mistakenly believe that if there is no copyright notice on a work then it is unprotected or if you give credit to the author of the work, you are in the clear.  Wrong.

Strong penalties exist for wrongful copying, otherwise known as copyright infringement.  If proven, a copyright owner could be entitled to actual or statutory damages for the unlawful copying.  Many plaintiffs choose statutory damages because the burden of proof is lower.  Statutory damages can range from $750 to $30,000 per infringing activity, or $150,000 if the infringement is found to be willful.

When posting content belonging to a third-party, employ the following best practices:

  • Assume the third-party content is protected.   All text, artwork, photos, songs are protected under either copyright laws or trademark laws.  Unless you have evidence that a work is not protected, assume that it is.
  • Do not rely on “fair use.”  Fair use is a limited defense in a copyright infringement action.  If you are relying on fair use, you have already been sued.
  • Obtain permission before reposting content to your website.
  • Remove unauthorized material from your site immediately.  Even if you believe you have the right to post the material, take it down while you investigate.

Linking to Third-Party Website:

There are many benefits to linking to a third-party’s website content.   The added content can enhance the usability and usefulness of a website.  You must also be careful because linking can inadvertently infringe existing trademarks or copyrights if the information contained in the link is being duplicated or “framed” by the material behind it.  Framing occurs when you divide a website into separate framed regions and post third-party content into a “frame” on your site.  Some courts have found framing to constitute copyright infringement.

Below are some helpful tips to keep in mind when linking to third-party content.

  • Review the website’s terms and conditions policy to ensure links are permitted or determine if consent is needed.
  • Ensure that your link simply transports a visitor to the website and does not duplicate the information contained in the link.
  • Disclaim liability for linked content in your terms and conditions policy.  You can also include separate screens or pop-ups to advise visitors that they are leaving your website and entering a linked site.  Include a note for the visitor that you have no control over the linked site’s content.

For more information or for assistance in drafting website terms and conditions policies, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com

Will Tarantino Be Able To Prove Copyright Infringement Against Gawker? The 411 on Copyright Infringement

In January 2014, Quentin Tarantino filed a contributory copyright infringement claim against Gawker.com for linking to his (as of yet) unproduced script, THE HATEFUL EIGHT.  Tarantino alleged that by making the link available to the script, Gawker was contributing to the infringement of his copyrighted work.

On April 22, 2014, a federal court dismissed Tarantino’s complaint holding that he had failed to establish that Gawker’s actions constituted copyright infringement. U.S. District Court Judge John F. Walter held that Tarantino failed to allege that anyone had seen the script because of the Gawker article.  Judge Walter noted, “Nowhere in these paragraphs or anywhere else in the Complaint does Plaintiff allege a single act of direct infringement committed by any member of the general public that would support Plaintiff’s claim for contributory infringement. Instead, Plaintiff merely speculates that some direct infringement must have taken place.”

On May 1, Tarantino amended his complaint to allege that “Gawker engaged in direct copyright infringement by their unauthorized download of a PDF copy of the leaked unreleased complete screenplay for Quentin Tarantino’s motion picture The Hateful Eight.”

Tarantino, like every copyright holder, is entitled to certain exclusive rights in his protected work.  These rights include the right to reproduce, distribute, display or perform the work, or to make derivative works.  Copyright infringement occurs when a third-party exercises one of these rights without permission from the copyright owner.  Contributory liability, based on a claim of secondary rather than direct liability, arises when a party knowingly and materially contributes to or is responsible for another party’s infringing acts. The most common form of direct copyright infringement occurs when a third-party improperly reproduces or copies a protected work.

To establish a claim of copyright infringement for improper copying, one must prove ownership of the work and unauthorized copying of the work or elements of the work.  As to the first element, a copyright registration certificate from the United States Copyright Office serves as prima facie evidence of ownership.   A plaintiff can establish the second element, improper copying, through direct or indirect evidence.  Examples of direct evidence of copying include a defendant’s admission or witness testimony of copying.  More likely, copying will be proved through indirect evidence by showing that the defendant had access to the work and that the works are substantially similar.

There are a number of defenses available in a copyright infringement action:

(1) Fair use – Allows for the limited use of copyrighted material without the copyright owner’s permission. Examples of fair use include research, commentary, criticism, news and parody.

(2) Copyright Invalidity – Argues the underlying work is not original or that it lacks copyrightable material.  Similarly, a defendant could argue that the plaintiff is not the owner of the copyright or that the work is now in the public domain.

(3) Consent – Arises when there is an express or implied grant of consent to use the protected material.

(4) Independent creation – Although a third-party’s independent creation is an absolute defense to copyright infringement, it is often difficult to prove.

(5) Statute of limitations – The statute of limitations for civil infringement is three years and five years for criminal infringement.  A majority of circuit courts apply the “discovery rule” to determine when the limitations period begins to accrue.  Under the discovery rule, the deadline to bring an infringement action accrues from the date that the plaintiff knew or should have known about the infringing activity.  A minority of circuits apply the “injury rule”, whereby the deadline begins to run from the date injurious conduct first began.

If able to establish copyright infringement, actual or statutory damages are available.  Statutory damages range from $750 – $30,000 per infringing work (left to the Court’s discretion).  If the infringement is willful, a court can assess statutory damages of $150,000 per infringing work.  In addition, attorney’s fees are available to the prevailing party.

Stay tuned for updating information as Tarantino and Gawker make their way through the legal system.

For more information on copyright infringement, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com

Social Media Policies: Best Practices for Protecting Your Company’s Brand

When a social networker identifies himself as an employee of an organization, he becomes a representative of the company.  From then on, the employee’s social media posts reflect on the company and the company’s public image.  An employee enjoys the right to free speech, but not the right to defame or slander his employer, post confidential or proprietary information, or violate the right of privacy of others.  A social media policy is designed to protect an organization against these and other risks.  A well-crafted policy should help the organization achieve its marketing strategy, but also protect against lawsuits, reputational harm and security or confidentiality breaches.

BEST PRACTICES

Here are some tips to keep in mind when developing a company’s social media policy.

DON’T be overly broad in the policy restraints.  Instead, tailor the social media policy to specific work hours, employer-provided equipment and work-related content.

DO prohibit comments that are vulgar, obscene and harassing.  Employers should prohibit comments about co-workers or supervisors that are vulgar, obscene, threatening, intimidating, harassing or a violation of the employer’s workplace policies against discrimination and harassment.  Remember, an employer cannot simply protect against “negative” comments, the language must be limited to comments deemed obscene or harassing.

A social media policy can violate the National Labor Relations Act (NLRA) where it is so ambiguous that an employee could reasonably construe it to prohibit activity protected by the NLRA.  Protected activity includes discussing the terms and conditions of employment, such as wages, with co-workers, while prohibited activities include remarks that disparage the employer or its products or recklessly false accusations.

DO require employees to include a disclaimer when expressing their views on social networking sites, such as “The views expressed on this post are mine and do not necessarily reflect the views of [Employer].”

DO prohibit disclosure of Employer’s proprietary or confidential information.  Companies must take care to ensure employees do not post unauthorized statements, endorsements or product claims.

DO NOT forget to notify and train employees on the company’s social media policy.  All of the planning and preparation will be for naught if the policy is not properly implemented.

For more information, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com

Negotiating the Option Agreement

The option process allows entities to share risk.  A production company does not want to expend $25,000 on the purchase of a book and then find out no one is interested in getting the movie made.  An option gives the producer the exclusive right to buy material (e.g. a book, an article, a screenplay, someone’s life story rights) in the future.  For example, a producer options a rising star on the New York Times bestseller list in the hopes of buying rights in the book in the future once financing is secure.

Key Terms of the Option Agreement.

  • Option Price – This number can be a little as a $1.00 or as high as the market will bear.  Generally, the option price is 10% of the purchase price.
  • Purchase Price – This number varies based on a wide range of considerations.  For example, how popular is the work?  Is the author a well-known commodity or an up and comer?  What is the scope of the rights being optioned?  All of these variables play in to the ultimate purchase price.  The market is constantly changing and evolving so it is important to consult someone knowledgeable in the industry to ensure the price is fair.
  • Option Period – The duration of the option.  Generally, an option period lasts from 12 to 18 months, but extensions or renewals usually are included in the agreement.
  • Grant of Rights – Defines the scope of the rights granted to the producer.  The broader the scope of rights, the more expensive the purchase price will be.
  • Renewal Rights – A renewal right gives the production company the right to renew the option for another term. An option is renewed when the producer notifies the rights holder (in writing and prior to the expiration of the initial term) of its intent to extend the option for another term.  Sometimes upon the extension of the option an additional payment is made to the rights holder.
  • Expiration of Option – If the option expires without being exercised, the rights holder keeps the option payment and all intellectual property rights to the underlying material.  The parties essentially walk away.
  • Exercise of Option – If the option is exercised, the production company pays the purchase price to the seller and buys the material.  Sometimes the option payment is offset against the purchase price meaning that the buyer subtracts the amount of the option payment from the ultimate purchase price.

Always negotiate the acquisition agreement at the time you negotiate the option agreement (attach it as an exhibit).  As the producer, you do not want to exercise the option and then be left with not the rights to the literary property, but the right to negotiate to purchase of the material.  Structure the Option Agreement so that once the option is exercised the Purchase Agreement is automatically invoked.

For more information, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com

Do’s and Don’ts – Use of Social Media in Hiring

Social media burst onto the scene and changed the way we do almost everything.  Facebook now has approximately 845 million monthly users, with 250 million photos uploaded every day and 2.7 billion “likes” per day.  Two new members join the professional networking site LinkedIn every second and is the 36th most visited website in the world.  Last count, there were 4.8 billion mobile users and 4.2 billion people with a toothbrush.  That pretty much says it all.

With the rise of social media, its use in hiring decisions is expanding.  Social media can be a helpful vetting tool, but it is important to know and understand the possible risks involved.

Here are some best practices to keep in mind when using social media to make hiring decisions:

  • Do not perform searches on an ad hoc basis.  Apply a consistent approach in your researching by using the same social media sites for reviewing each candidate.
  • Do search only publicly available information.  Do not require applicants to “friend” your organization or provide your organization with their logins and passwords.  Do not attempt to access private information by “shoulder surfing” through “friends.”
  • Do establish a firewall.  Separate the researcher from the hiring decision-maker.  The researcher can filter out information that is irrelevant (such as religious affiliation, sexual orientation) and pass on only relevant information to the hiring decision-maker.  This ensures the decision maker only has job related information.  The decision maker cannot rely on improper information if they do not have access to it.
  • Do keep a record of hiring decisions.  Every organization should document in writing a legitimate, nondiscriminatory reason for each hiring decision.  This is particularly important if you have viewed an applicant’s Facebook page and, for example, have learned of information that should not be lawfully considered in the decision making process.
  • Do draft (and implement) a social media research policy for your organization.  Ensure that your employees have knowledge of the policy and are trained on its proper implementation.  A policy is only as good as its enforcement.

For more information, contact The Law Firm of Stacey A. Davis at sdavis@staceydavislaw.com or www.staceydavislaw.com.