Copyright for Photographers Holiday 2013

Copyright: The Basics for Photographers

© Julia Harmatz, Attorney at Law, 2013 All Rights Reserved

U.S. Const., Art. I, §8, cl. 8

“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;”

Truth or Fiction

Intellectual Property Trademarks, Copyrights and Patents protect the same things.

Umbrella of IP No. Trademarks, copyrights and patents all

differ. A copyright protects an original artistic or

literary work; a patent protects an invention.

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.

Copyright

17 USC §102 (a) A work is “fixed” in a tangible medium of

expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

Copyright Protects Art Books Film Graphic Arts Photography Performing Arts (3d Animation, Graphic and Web Designers, Audio Production,

Photography, Digital Filmmaking, Web and Content Development).

Photographs and Graphic Art “Pictorial, graphic, and

sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans…., and are capable of existing independently of, the utilitarian aspects.

Bundle of 5 Reproduce To create Derivatives Display Distribute Perform

The Holiday Pie The Right to Five

Slices of Pie › Reproduce› Display› Derivatives› Distribute› Perform

Pie for Photog-raphers

Re-pro-duceDisplayDeriva-tivesDistribute

Truth or Fiction or Santa Brings the Presents

Poor Man’s Copyright

North Pole Copyright If you mail a work, such as a

screenplay, to yourself in the mail, the service provided by the USPS of canceling the stamp will serve as prima facie evidence of a valid copyright.

The Birth of a Copyright Fixed Tangible Expression

Truth or Fiction To be eligible for Copyright protection,

your photos must be used for monetary gain.

Answer Monetary gain is irrelevant to

Copyright, although funds are helpful this time of year for heat, rent, food, and gifts.

Duration of Copyright Life of the author and 70 years after

the author's death.

Joint Works. — In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author's death.

Duration of Copyright Work for Hire

› 120 years after creation or 95 years after publication, whichever comes first.

Don’t Do This

Don’t Do This Either

Registration

Truth or FictionI have to register my copyright to secure

protection.

The Copyright Office and eCO Lower filing fee of $35 for a basic

claim; Faster processing time; Online status tracking; Secure payment by credit card or

electronic means; and Ability to electronically deposit files.

How Long for Certificate The time the Copyright Office

requires to process an application varies, depending on the number of applications the Office is receiving and clearing at the time of submission and the extent of questions associated with the application. Current processing times are:

Average Processing Time for e-Filing: 2.5 months

Average Processing Time for Paper Forms: 5.6 months

Licenses

I love it I have to have it! Licenses and Permissions YouTube CC License By marking your original

video with a Creative Commons license, you are granting the entire YouTube community the right to reuse and edit that video.

Please understand that you may only mark your uploaded video with a Creative Commons license if it consists entirely of content licensable by you under the CC BY license. Some examples of such licensable content are: › Your entirely originally

created content › Other videos marked with a

CC BY license › Videos in the public domain

Truth or Fiction If a photo is Pinterest, Facebook, etc, it is free or in the public domain

Yep.If it’s on the Internet, I can use it.

License or Permission to Use

Check for copyright notice For what purpose Geographic Duration of Time Exclusive or nonexclusive

The copyright to your photographs is yours under the law.

You own it.Register it.Keep it.License it.Re-license it.

Copyright protects text and pictures on websites just like books, CDs, DVDs, and works in other media are protected. You might not see a copyright notice on a website, but "that doesn't mean you're free" to copy what you see or hear.

Truth or Fiction

Credit where credit is due.

If you give credit where credit is due, you have not violated copyright.

As long as you show the work in a positive light, you have not violated copyright.

Copyright Notice© 2013, Julia Harmatz, All Rights Reserved

› Term “Copyright” › Symbol› Year› Holder’s name› Phrase “All Rights Reserved”

Technically no longer required—no notice does not necessarily mean work is not copyright protected

Infringement

When to File a Suit for Infringement

Most important is, does the case have merit? 

Second,  are potential damages sufficient to make it worthwhile? 

Very important is whether  the defendant can actually pay if judgment is obtained? 

Fairey Mr. Fairey, 42,

sued The Associated Press in 2009 after it contended he had infringed on the copyright of one of its photographs in creating the poster. Mr. Fairey had claimed in his suit that he had used a different photograph of Mr. Obama, but later admitted that he had been mistaken and had tried to conceal his mistake, by destroying documents and fabricating others.

Fairey When the case began in

2009, Mr. Fairey argued that his use of Associated Press imagery constituted fair use under copyright law. But the civil lawsuit was settled before that question was decided, and the two sides agreed to financial terms that were not disclosed.The parties also agreed to share the rights to make posters and merchandise bearing the “Hope” image. Mr. Fairey maintained that he had never personally profited from sales of the image, a contention The A.P. disputed.

Shepard Fairey Is Fined and Sentenced to Probation in ‘Hope’ Poster CaseBy RANDY KENNEDY September 7, 2012

Mr. Fairey sued The Associated Press in 2009 after it contended that he had infringed on the copyright of one of its photographs in creating the poster. In his suit Mr. Fairey claimed he had used a different photograph, but later admitted that he had been mistaken and had tried to cover up his mistake. At the time he pleaded guilty he said he was “ashamed” of his actions.

Daniel Morel Photographer

awarded $1.2 million from media companies that lifted images off Twitter

media companies Agence France-Presse and Getty Images to pay $1.2 million to freelance photographer Daniel Morel for using and distributing without permission eight photos he'd taken and posted to his Twitter feed.

http://photomorel.com/

Thief of TimeProcrastination is still the thief of time. Life often leaves us standing bare, naked, and dejected

with a lost opportunity. The tide in the affairs of men does not remain at flood

-- it ebbs. We may cry out desperately for time to pause in her

passage, but time is adamant to every plea and rushes on.

Over the bleached bones and jumbled residues of numerous civilizations are written the pathetic words, "Too late.“

MLK

Musical Interlude or Intermission

I wrote this poem Words are flowing out like

Endless rain into a paper cupThey slither wildly as they slip away across the universe.Pools of sorrow waves of joyAre drifting through my opened mindPossessing and caressing me.Jai Guru Deva. OmNothing's gonna change my worldNothing's gonna change my worldNothing's gonna change my worldNothing's gonna change my world

Sounds of laughter, shades of lifeAre ringing through my opened ears Inciting and inviting me.Limitless undying love, whichShines around me like a million suns,It calls me on and on across the universe

Jai Guru Deva.Jai Guru Deva.Jai Guru Deva.Nothing's gonna change my worldNothing's gonna change my worldNothing's gonna change my worldNothing's gonna change my world

Jai Guru Deva. OmNothing's gonna change my worldNothing's gonna change my worldNothing's gonna change my worldNothing's gonna change my worldImages of broken light, which Dance before me like a million eyes,They call me on and on across the universe.Thoughts meander like a Restless wind inside a letter boxThey tumble blindly as they make their way across the universe.

John

Rufus

http://www.youtube.com/watch?v=Rj-4t9drUlM

http://www.youtube.com/watch?v=cAe1lVDbLf0

Myth?http://

www.youtube.com/watch?v=HJMapA8WgYw

© Music Mash Up

A musical mash up of old styles lyrics made new and fresh is the stuff of hits and thus eligible for a fresh new copyright.

The Clash Go Straight to Hell Boy

http://www.youtube.com/watch?v=HQwm1v1R-qM

The Beatles Across the Universe

MIA Paper Planes http://

www.youtube.com/watch?v=7sei-eEjy4g

Rufus Wainwright Across the Universe

Myth?Is it ok to use up to 5% of someone

else's work?

Under certain circumstances, "fair use" allows you to use parts of someone else's work. There's no magic formula, though. Scholarly criticism, teaching, and news reporting may be valid reasons for reproducing a copyrighted work. A number of other factors also need to be considered. (See Fair Use). When in doubt, it's always a good idea to ask the copyright owner for permission first.

Flickr Community Guidelines

Do upload content that you've created.Respect the copyright of others. This means don't steal photos or videos that other people have shared and pass them off as your own. (That’s what favorites are for.)

Don’t upload anything that isn't yours.This includes other people's photos, video, and/or stuff you've copied or collected from around the Internet. Accounts that consist primarily of such collections may be deleted at any time.

Copyright InfringementIf you see photos or videos that you’ve created in another member’s photostream, don't panic. This is probably just a misunderstanding and not malicious. A good first step is to contact them via FlickrMail and politely ask them to remove it. If that doesn't work, please file a Notice of Infringement with the Yahoo! Copyright Team who will take it from there. Check out the “Copyright/IP Policy” link in the footer of every page for more information.

Infringement As a general matter

1.copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work

2.without the permission of the copyright owner.

Copying—test is whether work is “substantially similar”

What is copyright infringement?

Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the

copyright owner.

Holiday Quiz

If you give credit to the owner/author/songwriter?

If you are not selling the video for money?

If the work, such as a photo, contains a copyright notice?› http://rapidshootersmaine.com/northern/2013/1013k/boat02/pages/NO%2010-13-13%20K010.htm

If you created a montage made of short clips of copyrighted content—even though you edited it together, is it a new work? A derivative?

Ok, I infringed, now what? Defenses

› The copyright is invalid or expired› Independent creation. You had no access

to the other work› Admission of copying, but was de minimus› Permission was granted› Fair Use

Fair UseIs it a new work or what?

How much = InfringementThe distinction between fair use and infringement may be unclear and not easily defined.

There is no specific number of words, lines, or notes that may safely be taken without permission.

You Be The JudgePicking Sides.

You Be The Judge

http://www.youtube.com/watch?v=_PLq0_7k1jk

Fair Use Analysis How much of a song can you copy? Determining Fair Use:

1.Purpose and character of subsequent use Commercial or non-profit nature of use

List of factors Criticism Comment News reporting Teaching Scholarship Research

Degree of transformation2.Nature/value of the work3.How much was copied4.Effect on the market

Fair Use Analysis Section 107 provides

the fair use of a copyrighted work … for purposes such as criticism [or] comment … is not an infringement … ,”

› Continues the common law tradition of fair use adjudication

› Requires case by case analysis rather than bright line rules

› Statutory examples of permissible uses provide only general guidance--statutory factors are to be explored and weighed together in light of copyright’s purpose of promoting science and the arts

Campbell v. Acuff-Rose Acuff-Rose owns the copyright to

Orbison’s song “Oh, Pretty Woman”. In 1989, Campbell wrote a song

entitled “Pretty Woman.” On July 5, 1989, 2 Live Crew’s manager informed

Acuff-Rose that 2 Live Crew had written a parody of “Oh, Pretty Woman,” that they would afford all credit for ownership and authorship of the original song to Acuff-Rose, Dees, and Orbison, and that they were willing to pay a fee for the use.

Fair Use and Four Factors

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

2. The nature of the copyrighted work 3. The amount and substantiality of the

portion used in relation to the copyrighted work as a whole

4. The effect of the use upon the potential market for, or value of, the copyrighted work

Campbell v. Acuff-RoseAcuff-Rose’s agent refused permission,

stating that “I am aware of the success enjoyed by The 2 Live Crews, but I must inform you that we cannot permit the use of a parody of Oh, Pretty Woman.”

Released Pretty Woman 2 Live Crew released records, cassette

tapes, and compact discs of “Pretty Woman” in a collection of songs entitled “As Clean As They Wanna Be.”

Almost a year later, after nearly a quarter of a million copies of the recording had been sold, Acuff-Rose sued 2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement.

Suit for Copyright Infringement› The District Court found in favor of 2Live Crew and called the

version a parody

› Court of Appeals reversed commercial nature of the parody rendered it presumptively unfair

that, by taking the “heart” of the original and making it the “heart” of a new work, 2 Live Crew had, qualitatively, taken too much under the third §107 factor; and that market harm for purposes of the fourth §107 factor had been established by a presumption attaching to commercial uses

Supreme Court It is uncontested here that 2Live Crew’s song would be an

infringement of Acuff-Rose’s rights in “Oh, Pretty Woman,” under the Copyright Act of 1976, 17 U.S.C. §106 (1988 ed. and Supp. IV), but for a finding of fair use through parody. From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of Science and useful Arts ….” U.S. Const., Art. I, §8, cl. 8

Held: 2 Live Crew’s commercial parody may be a fair use within the meaning of §107.

You Be The Judge

http://www.youtube.com/watch?v=JJjuxDa9sWM

Julia Harmatz, Attorney at Law

Julia Harmatz 781-330-5226 JHarmatz@Outlook.com

Intellectual Property, Copyright, Trademark, Licenses and Permissions Contracts and Negotiations.

Extra Credithttp://www.youtube.com/watch?v=CJn_jC4FNDo&feature=player_detailpage

A Fair(y) Use Tale

“Oh, Pretty Woman” by Roy Orbison and William DeesPretty Woman, walking down the street,Pretty Woman, the kind I like to meet,Pretty Woman, I don’t believe you, you’re not the truth,No one could look as good as you MercyPretty Woman, won’t you pardon me,Pretty Woman, I couldn’t help but see,Pretty Woman, that you look lovely as can beAre you lonely just like me?Pretty Woman, stop a while,Pretty Woman, talk a while,Pretty Woman give your smile to mePretty Woman, yeah, yeah, yeahPretty Woman, look my way,Pretty Woman, say you’ll stay with me’Cause I need you, I’ll treat you rightCome to me baby, Be mine tonightPretty Woman, don’t walk on by,Pretty Woman, don’t make me cry,Pretty Woman, don’t walk away,Hey, O.K.If that’s the way it must be, O. K.I guess I’ll go on home, it’s lateThere’ll be tomorrow night, but wait!What do I seeIs she walking back to me?Yeah, she’s walking back to me!Oh, Pretty Woman.

“Pretty Woman” as Recorded by 2 Live CrewPretty woman walkin’ down the streetPretty woman girl you look so sweetPretty woman you bring me down to that kneePretty woman you make me wanna beg pleaseOh, pretty womanBig hairy woman you need to shave that stuffBig hairy woman you know I bet it’s toughBig hairy woman all that hair it ain’t legit’Cause you look like Cousin ItBig hairy womanBald headed woman girl your hair won’t growBald headed woman you got a teeny weeny afroBald headed woman you know your hair could look niceBald headed woman first you got to roll it with riceBald headed woman here, let me get this hunk of biz for yaYa know what I’m saying you look better than rice a roniOh bald headed womanBig hairy woman come on inAnd don’t forget your bald headed friendHey pretty woman let the boysJump inTwo timin’ woman girl you know you ain’t rightTwo timin’ woman you’s out with my boy last nightTwo timin’ woman that takes a load off my mindTwo timin’ woman now I know the baby ain’t mineOh, two timin’ womanOh pretty woman