Here are a few interesting questions to test your basic understanding of copyrights and their relevance to your business:
- Did you know that willful unauthorized use of someone else's photographs or videos on a web site without authorization could subject the user to liability of up to $150,000 per work, and could subject the user to payment of the content owner's attorney's fees, even if no revenue was generated from the unauthorized use of the content?
- Did you know that under some circumstances you could be liable for copyright infringement occurring on a web site that you send traffic to or you receive traffic from?
- Did you know that if you knowingly promote or otherwise participate in the sale of pirated DVDs, such as a pirated version of Digital "Playground's Pirates II," you could be subject to criminal copyright prosecution and/or criminal prosecution under the federal conspiracy or aiding and abetting laws?
- Did you know that a person obtains a copyright in a creative work the second it is digitally recorded or otherwise stored in a "tangible medium of expression", such as photographic film, audio tape or even a piece of paper?
- Did you know that when an adult performer performs a scene that is recorded by a videographer, both the performer and the videographer initially own the original copyrights in the resulting work and that either can exploit the work as joint authors? Did you know that this means that neither alone can sell nor exclusively license all the rights in the work?
- Did you know that the assignment of a copyright is invalid unless it is in writing?
- Did you know that you can obtain a copyright registration for your web site?
- Did you know that software and digital avatars can be copyrighted?
- Did you know that an independent contractor hired to create a work subject to the copyright laws, such as the design of a website, owns the copyright to the work unless the contractor executed a proper "work for hire" agreement before the commencement of work?
- Did you know that copyrights are valuable property and that they can even be used as collateral for loans?
No matter how you answered the questions above, it should be clear that the legal issues surrounding the creation and exploitation of copyrightable material must be taken seriously. Simply put, copyrights are an important form of property called "intellectual property" that can be a source of great value to an adult business enterprise or a source of great cost. Since it is certainly true that knowledge is power when it comes to legal rights, like copyrights, it is clear that every adult entertainment entrepreneur should have at least a basic understanding of copyright law.
As a part of my continuing Getting The Biggest Bang For Your Legal Buck series, this article is part one of a two-part introduction to the basics of copyrights. Before we begin, however it is important to note that the area of copyright law is big and complicated.
One multivolume legal treatise on the subject in my office exceeds 3,000 pages. And there are literally thousands of copyright cases. So, this article should be viewed as only a very basic introduction to copyrights. Moreover, you should view it as an educational resource that is not intended to be legal advice of any kind.
If you are in the adult entertainment business, and you have not consulted with an adult entertainment attorney, your next step should be to contact a qualified practitioner, preferably one with experience in copyright and other intellectual property matters. This is particularly true if you are being sued for copyright infringement, or if you are an erotic content producer.
What are copyrights?
Before one can understand how to protect and exploit a copyright, it helps to know what a copyright is. Basically, copyrights are the set of rights created by the copyright laws enacted by countries that grant such rights. These laws are usually enacted for the express purpose of fostering the growth of learning and culture through the dissemination of information by granting to creators of creative works a monopoly of limited duration in their works. In the U.S., this important function was recognized by the founding fathers, and copyrights have been with us since the beginning of the republic.
In fact, the importance of copyrights to the founding fathers is shown by the fact that, along with patent rights, copyrights are the only intellectual property rights specifically authorized by the highest law of the land, our Constitution. Article I, Section 8 provides that Congress shall have the power "To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
In our country, the copyright laws are, therefore, meant to provide an important economic inducement for artistic creators to create as many works of art, literature, music and other "works of authorship" as possible. This noble and beneficial goal is sought, not only by the U.S., but also by governments literally around the world. Today, more than two hundred countries have copyright laws. Many of these countries are also signatories to an extraordinary copyright treaty, the Berne Convention, which protects the rights of copyright owners, literally, around the world.
As is the case with other forms of intellectual property (e.g., patents, trademarks, name and likeness rights, etc.), copyright laws are designed to strike a balance between the conflicting public interests of encouraging creativity by granting valuable exclusive rights to "authors" and providing the public with the greatest possible freedom of expression and access to a broad "marketplace of ideas."
In the U.S. and most foreign countries, this balance is achieved by copyright law, in part, by protecting an author's particular expression of an idea rather than the idea itself. Because of this, everyone is free to express an idea expressed by another as long as they do not copy the original author's particular way of expressing that idea.
What kinds of works are subject to copyright laws?
In the U.S., Section 102 of the Copyright Act provides that copyrights exist "in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device." This definition covers virtually the entire spectrum of human artistic expression, and includes literary works, music, motion pictures and other audiovisual works, sound recordings, photographs and other pictorial works, graphic works, sculptural works, and architectural works. This means that effectively every image, video clip, music clip, story, and banner ad, every graphically designed web page on your web site, and even the web site as a whole, are all the types of materials subject to copyright laws. And in the U.S. at least, it does not matter that the material contains sexual or other adults-only content.
Thankfully, our copyright laws do not discriminate or make any such value judgments. In fact, you can obtain a copyright in just about any recordable expression of an idea as long as it does not constitute a procedure, process, system, method of operation, concept, principal or discovery. These types of idea expression, involving nonartistic and purely useful components, are generally the subject matter of another great branch of intellectual property, utility patents.
Rights afforded by U.S. copyright law.
In the U.S., copyrights are a set of exclusive rights provided by statute (the federal Copyright Act) to an author and subsequent copyright owners. Because the rights are exclusive, copyright ownership provides the owner with a kind of governmentenforced monopoly. This is the basic reason why copyrights can be so useful, so valuable, and also, why they can be such a problem for infringers. Essentially, the copyright laws entitle a copyright owner to wield the "big stick" of the U.S. government to enforce the copyright owner's exclusive rights.
For example, if you own a work protected by copyright that is being infringed, to enforce your rights, copyright law entitles you to invoke the power of the U.S. federal court system and the law enforcement apparatus of the U.S., including the U.S. Marshals, the Customs Service and, in some circumstances, even the Justice Department.
So, what specifically are these "big stick" rights? Copyright law in the U.S. provides six separate rights to copyright owners:
- The exclusive right to reproduce the copyrighted work. This means that only the copyright owner has the right to make copies of the work.
- The exclusive right to prepare derivative works based upon the copyrighted work. This right includes, for example, the right to be the only party authorized to adapt a work, like a video or photograph, to a different medium, such as the Web.
- The exclusive right to distribute copies of the copyrighted work to the public.
- The exclusive right to publicly perform certain types of copyrighted works (such as audiovisual works, including video clips).
- The exclusive right to publicly perform sound recordings by digital audio transmission (e.g., via the Internet).
- The exclusive right to publicly display the copyrighted work.
These are all powerful rights, any of which, if infringed, could result in some very serious consequences for the infringer.
So what exactly is copyright infringement?
A person or entity may be liable for damages to a copyright owner for copyright infringement if that person or entity, without proper authorization, engages in one or more of the activities that are exclusively reserved to the copyright owner. In such cases, the copyright owner can bring a lawsuit in federal court to obtain damages and enjoin the infringer's continued infringement of the copyright owner's work.
Let's look at a fairly common example of copyright infringement on the web. Suppose, you own the copyrights in content, such as photographs or video clips, that you are distributing to members of your site pursuant to your site's terms and conditions (Ts & Cs). Suppose as well, that your Ts & Cs only grant a license to your members to use your site and the content available at your site for "personal entertainment purposes only" and your license correspondingly prohibits your members from using your content for commercial purposes (note: your site's Ts & Cs should always contain this kind of prohibition). Now, further suppose a person, lets call him "Mr. X", has joined your site. Mr. X is not just your average member, however. Mr. X is, in fact, a competing webmaster who uses his access to your site to copy your content and republish it on his own membership site without your authorization. Obviously Mr. X's actions are wrongful, but from a copyright perspective, let's see why.
In the example above, Mr. X has exceeded the limits of the copyright license you granted to him in your Ts & Cs. Because of this, Mr. X has engaged in activities using your content in an unauthorized fashion that violates or "infringes" upon rights exclusively reserved to you. Specifically, first, he has infringed your exclusive right to make copies when he made an unauthorized copy of your content for his commercial site rather than for his own personal amusement. Second, he infringed your exclusive right to distribute your content by distributing copies of the content without your authorization. Third, by including your content into his web site, Mr. X also created an unauthorized derivative work of your content (i.e., a new version of his web site, now partly composed of your materials). In your doing so, Mr. X violated your exclusive right make derivative works of your site content.
In all three instances of infringement described above, Mr. X would be a direct infringer of your copyrights in the content. This would entitle you to sue Mr. X in federal court and force him to stop distributing your content and pay you money damages. This also means that you would be entitled to ask the court to force Mr. X to pay you all the profits you can prove he made from his improper exploitation your content during the last three years.
Additionally, under certain circumstances, for reasons discussed next month in Part II of this article, you may be entitled to payment of your attorneys fees by Mr. X and to payment of "statutory damages" of up to $150,000 per work infringed regardless of whether Mr. X made any money unlawfully distributing your content. Yes, that's right, liability of up to $150,000 per work even if he never made a dime from your content.
For typical adult entertainment businesses it is the availability of statutory damages that makes copyright enforcement economically practical.
Gregory A. Piccionelli is an intellectual property and adult entertainment attorney also specializing in Internet matters. He can be reached at Piccionelli & Sarno at (805) 497-5886 or greg@piccionellisarno.com.
