What’s New in IP? Protect What You Own, Avoid Problems

C- Level Magazine March 2014

Do you have drawings, photos or pictures on your website? You may soon find yourself in the cross-hairs of the creator or owner of any of those. Creators and owners have become more aggressive in asserting and defending their copyrights, including warning copiers and attempting to extract money from them on the first take-down notice. We were recently consulted about two incidences where creators/owners of pictures contacted website owners and demanded hundreds and even over a thousand dollars in an initial letter. How is this even possible?

There is new software that can scan the web for the same image. If you watch TV or access the news, you have already heard about face-recognition software. Scanning for copyrighted images is a civilian use of the same software: Just enter the image of your photo or painting and search the Internet for sites using your image.

Don’t think it can’t happen to you? Be very wary of this happening to you. Every company has at least one employee – or a helpful relative or friend who thinks everything on the Internet is free for the copying. This employee may have located the perfect picture to illustrate some point on your website, but if you don’t own it, you can’t use it. Using someone else’s artwork can be a copyright infringement. They first send a cease and desist letter, and these now are including money demands. Don’t just take down the artwork, but also let the copyright owner know you are no longer displaying it. Do this carefully so you do not incriminate yourself. Ask an IP lawyer to help you to avoid being on the losing end of a copyright suit and instant judgment. One website owner did not tell the owner that the art was no longer displayed, and soon received an attorney’s letter of collection for a much larger sum.

What happens if someone copies information from your website? It depends! Copying a significant amount of verbiage or pictures can be a copyright violation. To claim your ownership and scare off casual copiers, put the copyright warning on every page: ©, {year(s)}, {owner} and ALL RIGHTS RESERVED. Here is an example:

2012 – 2014 The Luther Law Firm, PLC
ALL RIGHTS RESERVED

Check with an IP attorney to be sure to properly cover your intellectual property. This strong warning stops many copiers, particularly if you have the phrase “all rights reserved.” With that phrase, there is less question of whether you intended to make the information available for copying.

But you cannot sue a copier if you just have a warning; you also need to have a copyright certificate. This certifies your ownership of the copied material. And, if you apply for a copyright certificate before a copier strikes, you can sue the copier not only for copyright infringement but also for your attorney fees, which may be in the area of $20-30,000.

What if I don’t copy a significant amount? Then the doctrine of fair use may operate. If you only quote short phrases and sentences, you may be able to defend against charges of copyright infringement with the defense of fair use. However, the defense only comes into play after you have been sued. Would it not be wise to avoid that suit altogether?

Moreover, even with that type of limited borrowing, it is wise to use quotation marks and to recognize the author and source. Without those common courtesies, the author is more likely to sue.

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