Court Rejects Lawyer's Copyright Claim for Indy Skyline Photo -- At Least For Now

A recent Indiana Federal District Court decision carries a lesson for copyright trolls, but also for those who simply grab photos from the internet for use in websites and elsewhere.

On July 24, the Court denied summary judgment to both sides in a dispute over whether the defendant violated a lawyer's copyright in a photo of the Indianapolis skyline.

Indianapolis lawyer Richard Bell has been suing hundreds of people for copyright infringement for using the photo of the Indianapolis skyline on their websites, blogs and elsewhere, without payment (some would say tribute"). But turns out, he may not have the copyright on the photo after all.  

That's the position of the defendant, forensic consultant Michael Maloney. 

There is no question that Bell took the photo in 2000 with his own camera. There is no question that he filed to copyright the photo in 2011. two years after he left his longtime employment with Indianapolis law firm Cohen & Malad.

But at the time Bell took the photo, he was employed by Cohen and Malad. He took the photo for the firm's website, which was being compiled by West Publishing. 

Because Bell took the photo while employed at Cohen & Malad, an issue of fact exists as to whether it was a "work for hire" and that the copyright belonged to the law firm, not the lawyer who took the photo.  

Work for hire is a basic doctrine of copyright and patent law. When a staff scientist invents an better widget, the scientist doesn't own the patent. Instead it belongs to the company who employed him.  Same is true with a staff writer who authors an article for a magazine. 

The case of Bell v. Michael Maloney will now be set for trial in the United States District Court in Indianapolis, at which time ownership of the copyright will be determined.

LESSONS:  There are several important lessons in this case.

1.  Most importantly, it reaffirms the importance of having ownership or a license for the art work you use on your website, blog or elsewhere. You cannot simply copy a photo from someone else's website and use it. That's how Bell was operating his cottage industry of enforcing hefty payments for those who unwittingly used the skyline of Indianapolis photo.

2. Even if you are successful in defending your use of a photo, it is VERY EXPENSIVE. Defending cases in federal court is not cheap.

3. If you undertake to write a story or take a photo for someone, or even if you hire someone to design a website for your, make sure you have a contract which specifies whether it is, or is not, a work for hire.

Using Blog Post As Evidence Is Fair Use; Not Prohibited Copyright Violation

A blog post can be used in its entirety as evidence without violating the author's copyright. That's the ruling of the United States District Court in Northern Illinois in the case of Denison v. Larkin.

The case came up in an unusual fashion. Denison, an Illinois attorney, was charged with a disciplinary offense for scathing posts accusing the Cook County Illinois Probate Court and its guardian ad litem of corruption, elder abuse, and taking action that physically and emotionally harmed her 90-year-old Mary Sykes.

Denison was charged with violating the Code of Professional Conduct by her accusations. Setting aside the First Amendment issue (which is substantial), Denison challenged the action by suing her accusers in federal court for violating her copyright by utilizing the entirety of her blog post in the disciplinary complaint.

Judge Amy J. St. Eve of the Northern District of Illinois had no problem finding for the defendants and dismissing Denison's complaint.  The Court discussed the touchstones for determining whether something falls within fair use:  The purpose and character of the use; the nature of the work; the amount of the work used; and the market effect.  The court found that under the facts of the case, each of these factors favored the defendants.

Perhaps more importantly, the court noted that in enacting the Copyright law, the House Judiciary Committee stated that "reproduction of a work in legislative or judicial proceedings or reports" is fair use. Further, the U.S. Seventh Circuit (the circuit in which Illinois is located) has held that "reproducing copyrighted works for litigation is an example of the fair use doctrine."

So when you write that blog, remember that it could someday be labeled Exhibit A.

The Dark Knight Gets A "Clean Slate": Lawyers, Batgirl & Fictional Technology

Wonder why lawyers seem so "anal" over intellectual property rights?  Here's an example.

Dirksen Building - home of 7th Circuit Court of Appeals

During the mega-hit movie "The Dark Knight Rises," Catwoman extracts a promise from Batman for her help -- a "clean slate" removing her entire criminal history from every law enforcement computer in the world.  After her contribution to saving Gotham, Bruce Wayne makes sure Catwoman's criminal history is erased from every computer.

But suprise! There actually is a product called Clean Slate.  And Fortres Grand, maker of the software, has lawyers.

And those lawyers sued Warner Brothers asserting that the fictional "clean slate" alluded to in the movie would cause confusion with its own software, a utility that "cleans" the history from your web browser.

The U.S. 7th Circuit Court of Appeals in Chicago held for the film makers, ruling that there was not a substantial risk of confusion cause by the fictional reference to a clean slate in the Batman movie. Judge Manion, writing for the Court, found that the software company's allegation of reverse confusion was "implausible."

So Warner Brothers won. But at what cost?  First there are lawyers fees that can ratchet up at $500 to $1,000 an hour for big firm partners.  There there are expenses.  In addition to lawyer time, court reporters will charge perhaps $1,200 or more for the transcript of a day-long deposition. Then there are the hidden costs of lost time, productivity and energy of executives, in-house lawyers, risk management people, and others involved in the project who are dragged into the lawsuit.

The real lesson is that even the most innocent of references, even to a fictional "product", can bring down the wrath of intellectual property litigators and patent trolls.  It is why lawyers are often so cautious, even to the point of being perceived as "anal," in finding problems and issues where most people, including writers, see none.

While many lament that a lawyer "can find a gray cloud in every silver lining." that is often the most important part of what lawyers do.




photo credit: <a href="https://www.flickr.com/photos/kenlund/11004376983/">Ken Lund</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-sa/2.0/">cc</a>

Sherlock Holmes and the Case of the Disappearing Copyright

Want to write your own Sherlock Holmes story?  Or even publish your own favorite Sherlock Holmes stories?  Have at it. That's the ruling of the United States Seventh Circuit Court of Appeals, which has held that the copyright on Arthur Conan Doyle's famous detective has lapsed and the characters and stories are now part of the public domain.

Just this week, the United States Supreme Court refused to stay the Seventh Circuit's decision pending the high court's decision on whether to hear the case.

The case arose out of two collection of short stories written by author Leslie Klinger.  The first book, A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon, was published in 2011 by Random House. Despite Klinger's objection, Random House paid a $5,000 royalty to the Doyle Estate to publish the book.

When Klingler and her new publisher, Pegasus Books, were ready to publish her sequel, In the Company of Sherlock Holmes, they refused to pay the royalty and Doyle's estate sued.  And lost.

The last ten Sherlock Holmes stories remain under copyright protection.  The copyrights on those stories expire between 2018 and 2022.  But the character of Sherlock Holmes, Dr. Watson, Lestrade and Moriarty are no longer under copyright protection -- unless the U.S. Supreme Court takes the case and reverses the Court of Appeals decision, something that is not expected.

For the Seventh Circuit's decision, CLICK HERE.

Note: There has been a paucity of posts on this blog over the past seven or eight months. I have been working on my own writing project, a second novel tentatively titled Deadly Innocence. That novel is now finished, so I hope to be posting on this blog more frequently.  That is, until another writing bug hits me.  -- SMT



*photo credit: <a href="https://www.flickr.com/photos/vercettisworld/14154672292/">GregHausM.D.</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

Libraries, Museums, Ebay, Used Book Stores Saved by U.S. Supreme Court

In a technical but important issue of copyright law, the United States Supreme Court in a 6-3 decision held that re-selling text books on Ebay was not a violation of the publisher's copyright.

The much anticipated decision in Kirtsaeng v. John Wiley & Sons upheld the "first purchase" doctrine.  Immediately it drew praised from libraries, museums retailers, and marketers such as Ebay, all of which filed briefs in support of Kirtsaeng.  The decision was blasted by publishers and the software industry which view it as a substantial subtraction for the bundle of their intellectual property rights.

Kirtsaeng, a math student from Thailand, bought textbooks in Asia where there were sold for much less, then re-sold them for $900,000 through Ebay in the United States, making a tidy $100,000 profit.  The books were identical to texts used at U.S. schools except for a notation that they could not be exported.

John Wiley & Sons sued, claiming Kirtsaeng violated the copyright by selling the cheaper books in the United States.  The District Court held that the first sale doctrine did not apply to overseas purchases, and a jury awarded the publisher $600,000 in damages.  the 2d Federal Circuit Court of Appeals, in a split decision, affirmed.

The first sale doctrine holds, in short, that once an item is purchased, the original publisher / manufacturer loses his copyright protection.  Whoever purchases the item can resell it without violating the copyright.  It's why you can sell a used book, or a CD, or even a car.


In reaching the decision, the Court stated: "Reliance on the “first sale" doctrine is also deeply embedded in the practices of booksellers, libraries, museums and retailers who have long relied on its protection." 

To view the Court's opinion, CLICK HERE.



*photo credit: <a href="http://www.flickr.com/photos/zacklur/137231145/">zacklur</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

Unlocking Cell Phone Now Illegal

Ever looked on Ebay for a cell phone and see an "unlocked" phone for sale?  Ever have a friend tell you you're not locked in to your carrier because he can "unlock" your phone so that you can use it with another cell phone carrier?

Not anymore.

As of January 26, it is illegal to "unlock" a cell phone so that it can be used by another carrier.  There is an exception if your own carrier gives its permission.  The likelihood of that is summed up in two words:  "Fat Chance."

The Digital Millennium Copyright Act makes it illegal to "unlock"  (or "jailbreak") a cell phone.  An exception was made through January 26, but that exception has now expired.

So take care.  Big Brother may be listening.


photo credit: <a href="http://www.flickr.com/photos/khedara/2441552217/">KhE 龙</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-nd/2.0/">cc</a>

Copyright & First Purchase: SCOTUS to Determine Resale Rights of Book Purchasers

Do you have a right to resell these books? Image via Photo Pin.*

When someone purchases a book, do they purchase the right to re-sell it?

Nonsense, you say?  Who would ever think that when you buy something, you can't resell it at the best price you can get?  When you buy a car, you can resell it, right?  Same is true with books and CDs.  Otherwise flea markets, pawn shops and used book stores would be out of business.  If people couldn't resell what they buy, Pawn Stars would be the most boring show on television.

But not so fast.  A trial court has already held that a book purchaser violated the publisher's copyright by buying textbooks cheaply in Europe and selling them at a profit on E-bay.

Just what rights the purchaser of a book has is the multi-billion dollar question currently awaiting decision by the U.S. Supreme Court in Kirtsaeng v. John Wiley & Sons.  The decision will have far-reaching impact on the global intellectual property rights for books, CDs, and DVDs.

Kirtsaeng was a student in Europe, he found that text books, which were manufactured in Europe, were much cheaper than in the United States. Working with his parents, he bought $900,000 in texts books at the reduced European price, then resold them on Ebay to U.S. students, pocketing a nifty $100,000 profit.

Image via Photo Pin. **

Kirtsaeng took advantage of the common practice of manufacturers selling their products at lower prices in the global market than in the United States.  The practice of buying those cheaper-priced items abroad and reselling in the United States is called the "gray market"

Text book publisher John Wiley & Sons was offended at someone making six-figure profits by reselling its books, and sued Kirtsaeng for copyright infringement.  At trial, the jury found that Kirsaeng infringed on Wiley's copyright by unlawfully reselling the books he lawfully purchased in Europe and awarded Wiley $600,000 in damages.

The Supreme Court previously split 4-4 on this issue in 2010 when Justice Keegan did not take part in the decision because she had participated in preparation of the Department of Justice brief.  This time Justice Keegan is fully participating.

Ebay, Google and art museums are lined up in support of Kirtsaeng, saying that if the lower court decision is allowed to stand, it will disrupt the entire resale segment of the economy.  The book, movie and music industry is lined up in support of the lower court decision, arguing that it is necessary to avoid the producers of those goods from being undercut by a secondary market selling their products without permission.

Oral argument, which took place October 29, showed that the Court has not reached a consensus on the issue.  At one point Justice Breyer referred to the disruptive impact the decision could have on the resale market as the "bear in the mouse hole." Lawyers for the publisher could not satisfy Justice Breyer that affirming the decision for the publisher would not release that bear.

A decision is expected this spring.


*photo credit: <a href="http://www.flickr.com/photos/blue-train-books/6929710279/">Blue Train Books</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

**photo credit: <a href="http://www.flickr.com/photos/mindgutter/5697913/">mindgutter</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-nd/2.0/">cc</a>

Video Game Company Using Copyright to Control Product Exposure

Royalty free image via Photo Pin:  Photo Credit below

The world of video games and YouTube is giving rise to an interesting use, or abuse, of copyright, depending on which side of the gaming counsel you are sitting.

Start with the background.  Gamers have found an effective tool to getting through all the mazes and obstacles that video games can throw at them. The tool is YouTube.

Search the name of a video game on YouTube, and chances are you will find videos demonstrating how to play the game, and even how to overcome specific obstacles in the game.  Some particularly proficient gamers are even making money at this.

Some actually have licensing agreements from Sega and other game producing companies allowing them to do this.  But most of these games are operating from their basements (either literally or figuratively) and make little, if anything, from their endeavors.

Enter Sega.  The gaming giant is seeking to squash this, unless the gamers enter a licensing agreement with Sega.  Sega maintains that it has all right to the images, names and other aspect of its game, and that the use by these people posting on YouTube is a violation of the Digital Millennium Copyright Act (DMCA).

So off go the DMCA letters with their threats of fines, penalties, prison, etc.  And down come the videos, even though some maintain this is clearly fair use.

Sega may be entirely correct in protecting its rights. But this is the type of action that is causing some to wonder if copyright in its present form has outlived its usefulness.  However we are likely never to know.  Some basement gamer would have to challenge Sega in Court - and that definitely is NOT a game.  The game would risk the onerous DMCA penalties, and would have to be willing and able to ante up the substantial money needed to fight Sega and its army of lawyers in Federal Court.

So in the end, it may be just another example of the Golden Rule:  He who has the gold, makes the rules.


photo credit: <a href="http://www.flickr.com/photos/gnackgnackgnack/3244471469/">gnackgnackgnack</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc/2.0/">cc</a>

Copyright and Contract: Really Small Print Can Have Really BIG Consequences

*Royalty-free image via Pin Point:photo credit below

For the past two weeks I've gone over issues relating to copyright ownership, including work for hire, the distinction between being an employee and an independent contractor, and how all of this impacts ownership of copyright.

It's pretty complicated legal stuff.  Others would use a different "s" word.

The plain fact is that most issues regarding copyright ownership can and are resolved terms by the terms a contract.

Whether it's called a Release, or Consent, or Agreement, or Terms of Use, Submission Guidelines, or Waiver, or Authorization, or something else, a document that allows someone else to publish your work, or a derivative of your work, is a contract. And the terms of that contract have consequences.

If you are signing one of these,  or if you are making an online submission under Terms of Use or Submission Guidelines, you are doing something that gives someone else a part of your bundle of intellectual property rights that you possess in your own work.  In other words, you are turning over some (or possibly all) of your rights you have in your own work product.

**Royalty-free image via Pin Point: photo credit below

So pay attention to the fine print in any contract. This includes those pesky Terms and Conditions  you click agreement to on so many websites.

For example, when you join Facebook, that "click" grants a license that any content you post as "public"  can be copied and re-posted by any other Facebook user.  This includes your writings and your photos.

Those small print words mean something.  And they can make a substantial difference in your rights.

Can you negotiate these terms?  Well yes -- and no.  You have the right to negotiate any terms in an agreement.  But in many cases (Facebook for example), it is a take-it-or-leave-it proposition.  If you don't like the terms, don't sign or make the submission. 

But sometimes terms are negotiable.  That's where a talented literary agent can become your best friend.  Movie rights.  Foreign rights.  E-book rights. Derivative rights.  Merchandising rights. They are all part of the bundle of intellectual property rights you possess when you create a work.  An experienced lawyer can help you understand those legal rights.  A good agent can help you negotiate them as part of a deal.

So read those contracts closely.  Talk with your agent, if you have one. Consult with an attorney who knows something about copyright and publishing.

Above all, make sure you understand what rights you are signing over to someone else when you sign or click to create a contract.


*photo credit: <a href="http://www.flickr.com/photos/hi-phi/425148111/">[phil h]</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-nd/2.0/">cc</a>

**photo credit: <a href="http://www.flickr.com/photos/mjaniec/5403877185/">mjaniec</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

Copyright, Twitter, the DMCA and Takedowns

Twitter is not a copyright free zone!

You can violate copyright on Twitter just as you can on your blog - or any place else.

This was made clear when Twitter announced that upon a complaint from a copyright holder, Twitter would take down tweets which were asserted to violate copyright. The policy is Twitter's effort to comply with the Digital Millennium Copyright Act (DMCA).

The policy was recently modified when Twitter sent out the following tweet:

"We now offer more #transparency in processing copyright reports by withholding Tweets, not removing. Learn more: https://support.twitter.com/articles/15795 . "

I guess this would be classified as a Twitter tweaked tweet. 

But there is no humor in the policy.  Twitter will take down the purported offending tweets.  The tweet will not simply disappear into the ether, though.  Rather, the tweet will be "withheld" with a notice appearing instead of the tweet.

The full policy and procedure of Twitter is set out in the Twitter Help Center.  It is rather detailed, but not filled with a bunch of legal jargon.

The real lesson is that even in this era of social media, retweets, reposts, sharing, and even copy and paste, copyright laws still apply, whether its a photo, an article, or a 140-character tweet. 

I would set out the entire policy here . . . but there's that copyright thing.  So instead, just CLICK HERE to go to the Twitter Help Center's Copyright policy.

Photo under Creative Commons license.  photo credit: <a href="http://www.flickr.com/photos/cobalt/7217055290/">cobalt123</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

Copyright is a Contaminant - A Glimpse at the Bleak Future for Copyright Protection

Copyright is a contaminant, an impediment to free global access and the progress of digital commerce.

This isn't some radical hacker's viewpoint.  This is the prevailing view in academia among copyright scholars and students, according to a fascinating MUST READ article in the July 23 issue of Fortune Magazine.

Roger Parloff's article, MegaUpload and the Twilight of Copyright, is amazingly well-written, well-researched, and frightening as hell for copyright holders.   

The starting point is the criminal prosecution of internet multi-millionaire Kim Dotcom (not the name he was born with) and his MegaUpload file "locker" business consisting of enough servers to store three times the content of the Library of Congress.

Dotcom's business is to provide lockers for uploading and downloading content.  His lawyers equate the business to Dropbox and other cloud storage services.  But the reality is that over 90 percent of its customers only download -- movies, music, television shows and ebooks.  And none of the people downloading pay anything other than download fees to MegaUpload.

But prosecutors may have a hard time convicting Dotcom.  The Supreme Court's hallmark 1984 decision in Sony v. Universal Studios effectively immunized providers from liability for illegal use by customers provided that the product could have a legitimate use.  That was the case that tried to hold Sony responsible for its customers using Beta videotape to copy Universal's movies.

The principle set out in Sony has remained unchanged.  And the much touted Digital Millennium Copyright Act did not change this principal of law, and in fact has done little to add protection to those holding copyrights.

Parloff's article goes in to a great discussion about the contrasting positions of those who seek more copyright protection, and the growing majority who view copyright as a "contaminant."  It's war.  Lined up on one side are those who create and distribute content, every one from Disney, Dreamworks, the entire recording industry and the big five publishing houses, to the solitary author self-publishing her first book.  Lined up on the other side are the distributors, not just Kim Dotcom and some computer genius in his college dorm, but also Google, Paypal, and AT&T.  But also lined up with the distributors are the tens of millions of users whom the distributors serve -- those people who have become accustomed to finding any content they want for free on the internet.

The Dotcom / MegaUpload case will be worth following.  But the increasing view appears to be that copyright is a "containment."   It is an increasingly dominant view in business, academia and in the eyes of the general public which downloads millions of  illegal files every month.  This cannot help but be troubling for anyone who is involved in writing or the creative arts.