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Archive for copyright

Are You Giving Away Your Intellectual Propery Rights on Twitter?

The Twitter phenomenon has permeated our world-wide society.  It is where many of us get our news, keep up with far-flung friends, and even make new friends, sight unseen.  We share our goals, accomplishments, day to day happenings and many times we do so with pictures.

But do any of us know what happens to our pictures once they’re posted via the various twitter picture/album services like twitpic, yfrog, or plixi?  Apparently plixi’s terms and conditions allow them to sell and make money off of pictures posted through it’s service.  Who knew, right?  Well, it took a celebrity tweet to bring it to our attention (See @katewalsh: SO BAD…ILLEGAL? RT @lalatas: @katewalsh @ipicarazzi Here is the link about Plixi images on selling twitter pics to agencies. UNCOOL! http://j.mp/gAYDfT”).  Short answer Ms. Walsh – not illegal because by using the service you’ve agreed to license those pictures to them FOR FREE.

A quick overview of the terms & conditions shows that indeed, users are granting a worldwide, royalty free license to use, duplicate, and sub-license (ie: sell) the pictures posted using their service to other people and/or companies.  What does this mean?  Well for you and me (ie: non-celebrities) it means that the picture of your dog or kid can be sold to a company for use in an ad, packaging, or anything else.  Not that big a deal, right?  If you are a celebrity, it means that the picture you posted of yourself and friends at a local restaurant can now be sold – without your knowledge – to that restaurant for use as an advertisement that you endorse that establishment.

Why should non-celebs care?  It’s the principle of the matter.  Knowing that most users do not read the terms & conditions, plixi has essentially taken your property from you – in essence they’ve stolen from your all the while rationalizing by saying, “It’s in the T&C’s if people don’t want their pictures sold, they should use a different service.”  The problem is that it now avoids the purpose and protection that each person that snaps a picture has under the Copyright Act.  That picture is YOURS… yours to sell, yours to post, to duplicate, sell, or give away.  But you should have a choice as to what happens to those pictures.

So what to do now?  It all depends on whether you feel strongly about this or not.  As for me, I transferred my pictures to a service that doesn’t sell them and deleted my account with plixi.  If you want to read the terms & conditions, there is a link below to the plixi site.

http://plixi.zendesk.com/entries/343628-terms-of-service

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Protecting Your Work – What Copyright Registration Can Do For You

I have represented writers for a very long time in different capacities – at an agency, as a manager, and most recently, as a lawyer.  The one thing that always comes up is whether they should copyright their work and my answer is always, “Absolutely!”

There are 2 kinds of copyright protection – common law and statutory copyright.  Common law states that any work created is immediately protected by copyright laws and the creator is the sole owner.  Thus, if the work is infringed upon, the creator can demand that the infringer cease and desist their infringing use.  Damages may be awarded, but only the creator’s actual damages.

Now, many writers ask me about the “poor man’s copyright:” basically mailing yourself your screenplay, manuscript, or artwork to get a postmark date on it and keeping it in the sealed envelope.  This is a good idea, but it will only prove that your work existed as of the date postmarked.  The above common law copyright will still apply.

Another thing that I get asked is whether registering your screenplay with the Writer’s Guild affords any protection.  The answer is yes and no.  Registration with the WGA does not provide you with any legal protection per se – it is not a law.  It can, however, provide you with confirmation of the date the work was created and if you are submitting your work, it may make producers more comfortable in taking a submission.

The statutory copyright is much more effective in that the Copyright Act provides for certain statutory damages.  It also provides elements which help prove infringement (or protects against it, depending on what side of the infringement you are on).

A statutory copyright registration is fairly inexpensive in relation to the protection it provides and I suggest that clients register their works as soon as possible.  But, if you cannot afford it, or did not file the registration and your work is being infringed upon, you may still have a viable case for copyright infringement.

Also bear in mind that registering your script with the WGA provides a 5 year registration and you must renew it every 5 years.  A copyright is good for the life of the author plus 75 years.  Additionally, while this post focused on scripts and written works, all kinds of works can be protected from statutes to computer code, drawings to jewelry or fabric designs.

If you have a work that you would like to protect, please contact our office at (818) 986-9100 and our intellectual property associates can assist you in order to register your work or evaluate your infringement case.

Love & Marriage…and a Prenup

Spring.  It’s the time of year when a young man’s fancy turns to thoughts of love.  Or so they say.  With about one third of first marriages ending up in divorce and approximately half of subsequent marriage coming to the same conclusion, it is no wonder that more and more savvy brides and grooms to be are addressing their financial planning through a prenup, especially those who own their own businesses, real estate, or, as we are in LA – home of the entertainment business, have worked for years on their scripts, music, or other intellectual property.

We all know the stigma of the prenup – why start the marriage with the idea that it will end?  For the same reason it is recommended that you speak with an estate planner sooner rather than later.  It is a contingency which provides for the financial security and well-being of the individuals who are making a commitment to stay together for the rest of their lives, but are realistic enough to know that marriage is not only the uniting of hearts, but of bank accounts and finances and when it comes to romance and money, one cannot know what the future will bring.

A prenuptial agreement (or sometimes an antenuptial or premarital agreement) serves the purpose of providing a roadmap with respect to the distribution of assets should a marriage end in divorce or death.  These agreements set out the consequences should one or both of the parties commit adultery, separate or divorce before a certain amount of time passes, or for the birth of children.  There are, of course, some prenups which address less common topics, for example monetary benefits or detriments based on weight gain, drug use, or spending habits.

Now, many people believe that because they are not heiresses, or multi-millionaires they do not need a prenup.  This is not true.  A prenup is useful to people of all socio/economic classes.  In fact if you have assets such as real property, stocks, retirement funds, intellectual property such as scripts, lyrics, songs, or films, or certain personal property you wish to protect and ensure is established as separate property; if you are pursuing or have already obtained a degree/license in a possibly lucrative profession (ie: law or medicine),  if you own all or part of a business, if you have elderly parents or family members who need care, if you have children or grandchildren from previous relationships, if one person earns more than the other or if you might be receiving an inheritance, you would do well to discuss a prenuptial agreement with your soon-to-be spouse and consult with an attorney.

If you have questions, or would like more information about prenuptial agreements or what can be protected under the prenup, please contact our office to schedule an initial consultation. If you’ve been asked to sign a prenup and you’re not sure about the conditions of the agreement or whether you and your property are protected, we can assist you with that as well.

Case Comments – Cybersquatting

Lahoti v. Vericheck, Inc., 586 F.3d 1190 (9th Cir. 2009) – the decision against the defendant for bad faith adoption of domain name vericheck.com was affirmed, based in part on defendants prior acts of cybersquatting where the defendant was ordered to transfer domain names obtained in bad faith.  The Court reasoned that defendant’s prior failed defenses against cybersquatting made it unlikely that the defendant legitimately believed his use of the vericheck.com domain was lawful or amounted to fair use in the present case.

The Lahoti decision is significant to all persons whose domain name has been held hostage by cybersquatters, whether celebrities, corporations, fashion brands, sports figures, or small businesses, because it allows a plaintiff to establish that a defendant’s prior acts of cybersquatting, even when dealing with unrelated domain names, not only supports a showing of bad faith registration, but may invalidate any safe harbor defense the infringer could potentially have asserted, i.e., that he/she believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.

In plain English, if a Defendant has unsuccessfully defended against allegations for cybersquatting in the past, it is less likely that the Defendant will be able to defend a subsequent litigation by trying to convince a Court that he believed his use of the domain was protected  as a fair use or in any other way lawful.

Welcome…

Welcome to the Beitchman & Zekian blog!  Without repeating too much of what you can find on our website (www.bzlegal.com), here are our basic stats:  we’re a 5 attorney boutique firm that focuses our practice on civil/commercial litigation, entertainment law, business/corporate law, intellectual property, and real estate law.

What this means to our readers is that we will bring to you interesting and useful information on topics about and relating to the above subjects.  Are you a writer? Tune in to see what our IP attorney has to say about copyrighting that script or manuscript.  Are you about to start your own business?  Our corporate attorney will point out the differences between an LLC and corporation and our IP attorney may discuss the benefits of trademarking your brand.

If you’d like to see a topic covered, leave a comment and we will address it as soon as we can tear ourselves away from our cases.