The federal government implemented the Digital Millennium Copyright Act of 1998 (“DMCA”) to protect those that use copyrighted material in a digital format. This provides significant liability protection for those who host interactive online media.
“Service providers” are especially vulnerable to infringement. The DMCA defines a service provider as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received” and “a provider of online services or network access, or the operator of facilities therefore.”
Safe Harbor Protection
Unfortunately, copyright infringement is still valid even if you did not know the work was copyrighted. This is because the DMCA highlights this exact problem, and the responsibility of obtaining Safe Harbor protection is solely on the owner of the platform. It is especially important to apply for this protection if you do not know if your website has copyrighted material.
The DMCA protects work that is primarily displayed by service providers, which means your platform could be at risk for infringement without this protection. Copyrighted material on a website can include stock images, music, photography and others of the like.
The good news is that applying for Safe Harbor protection is quite simple. To achieve this, you’ll need to create a DMCA Designated Agent account and assign a registered agent. A registered agent can be anyone of your choosing, so once you’ve selected an agent, you can click on the following link to set up an account: https://dmca.copyright.gov/osp/p1.html. Once registered, your platform is immediately covered under Safe Harbor protection. This is an easy step to take to prevent an infringement headache waiting to happen.
Having trouble with copyright infringement?
Schedule a free consultation with Lloyd & Mousilli to discuss how to avoid committing infringement as well as how to protect yourself from infringers.
La Dart’s official complaint is largely predicated on her assertion that the stylistic elements of her book are not typical, and that they are not present within other published works. Therefore, she alleges that there is a substantially similar overall impression of the two works that constitutes infringement.
In order to prove her allegations, La Dart has the burden of proving two elements:
She owns a valid copyright
Swift copied constituent elements of La Dart’s original work
La Dart’s complaint establishes that she obtained a valid copyright registration for her book in 2010. The more difficult element to prove is the second, as it relies on La Dart using circumstantial evidence to support her claims.
For example, La Dart’s complaint asserts that Swift had “repeated and long-term access” to her book “Lover“ as it was available through various channels after its publication. If she is unable to provide evidence that the work was actually accessed, she must show that there is a “striking similarity” between her work and Swift’s.
La Dart claims that Swift’s album and accompanying book contain a “substantially similar” format, color scheme, and design. The identical titles, of course, are also at issue. The complaint also alleges that the photographs of the two women on the covers of their respective books are similar enough to warrant infringement, as they are each shown in an “upward pose.”
An additional element often used to prove copyright infringement is that the defendant sought commercial advantage or private financial gain. While La Dart’s complaint does not explicitly accuse Swift of such, it certainly implies it by referring to the considerable number of sales and subsequent monetary gains of Swift’s Lover album.
The complaint, filed on August 23rd, 2022, declares that La Dart has been irreparably harmed by Swift’s album. She is seeking $1 million in damages, as well as Swift’s profits attributable to the infringement. At the time of this publication, there were currently no substantive updates on the case.
What is copyright? How does my work get protected?
These are the basic questions one asks when trying to understand copyright services. Read more about copyright here.
The copyright duration in the US depends on a number of things. One must consider whether the work is published or not. If published, the next question is if it was published first in the US or abroad. Copyrights can be confusing at times so we have prepared this article to provide a better understanding of how Copyrights work. If you have any further questions, feel free to book an appointment for a free consultation call with your Lloyd & Mousilli team. We would love to hear from you!
Is the work published?
Before you can determine how long a work’s copyright protection will last you must know whether the work has been published. The current copyright act (The 1976 Act) defines “publication” as the distribution of (or offer to distribute) copies of the work to the general public in the U.S.
Note: The 1976 Act applies to works published after January 1, 1978. Works published before January 1, 1978, are governed by the previous act (the 1909 Act).
The 1909 Act did not define publication. However, case law under that act distinguished between “limited” publication (distribution to a select group, for a limited purpose) and “general” publication. In a general publication, copies of the work are made available to the general public without restrictions.
Was the work published in the US?
Not only does a work’s published or unpublished status affect the length of the copyright protection, but the country it was first published does also. You will have to research and verify in the US Copyright Office records.
Is the work a corporate work (work made for hire) or is the author anonymous or pseudonymous?
No – Copyright term is the author’s life plus 70 years after his or her death. If the work is a joint work, term is for the last surviving author’s life plus 70 years.
Yes – Copyright term is 120 years from the date the work was created.
The length of US copyright protection depends on whether the work’s author is an identifiable, individual person (or persons in the case of joint work) or not.
In the case of unpublished works where there is no known “author’s life” by which to measure the copyright term (such as works for hire, anonymous or pseudonymous works), the term is measured from the date the work was created.
What is a work made for hire?
A work made for hire is a work created by an employee as part of his or her job, or by an independent contractor who (before creating the work) signed an agreement transferring ownership of the copyright to the employer.
No unpublished works entered the public domain until January 1, 2003
When Congress passed the 1976 Act, it decided that the copyright term for unpublished works created before January 1, 1978, would in no event expire before December 31, 2002.
Unpublished works for hire, anonymous, and pseudonymous that were created more than 120 years ago (1886) are now in the public domain.
Hopefully, this article helps you understand the duration of copyright. If you have questions about your work, feel free to contact us.
New Options for Holding Copyright Infringers Accountable
Creatives of all kinds whether they are photographers, authors, designers, or even software developers have most likely all felt the sting of seeing their content copied without permission. The years of work and capital investment that goes into developing creative works often carries both a professional and personal investment for creators which makes the notion of having that investment wrongly copied incredibly stressful. Historically, the path to holding copyright infringers accountable in the United States has been out of reach for most creators, especially those just starting out. Luckily, the US has recently made changes to bring about a more accessible means of copyright enforcement.
The Copyright Alternative in Small-Claims Enforcement (CASE) Act
As part of the Consolidated Appropriations Act 2021 signed into law on December 27, 2020 – a much needed reform was implemented in the United States Copyright system. The Copyright Alternative in Small-Claims Enforcement (CASE) Act establishes a copyright small claims system that allows copyright creators to take action against infringers that arises out of Section 106 of the Copyright Act on a smaller scale than filing lawsuits in federal court.
Traditionally, all copyright enforcement actions have needed to be in the form of lawsuits in federal court. Federal litigation is a lengthy and expensive process – which for many smaller scale creators is simply out of reach. The vast majority of copyright infringement cases in the United States are of relatively low monetary value – which sadly means that many copyright creators have been left without a realistic enforcement remedy.
Copyright infringement remains a federal cause of action and copyright owners will still be able to pursue cases in the federal court system, but the tribunal established by the CASE act is intended for those that cannot take on that expense. For instance, it may be an avenue when seeking relatively small licensing fees regarding creative work for photographers, graphic designers, and the like.
The New Copyright Claims Board
Creators will now be able to bring their infringement claims before a Copyright Claims Board within the US Copyright Office – a three-member panel of experts in copyright law. The Copyright Claims Board has similar authority to a traditional small claims court in that they may oversee a discovery process, conduct hearings, and award monetary and non-monetary relief as appropriate. This panel would be able to award creators up to $15,000 per work and $30,000 per claim, assuming the creators had registered their work with the office. In the event their work had not been registered, the recovery limits are cut in half at $7,500 and $15,000 respectively. With a copyright registration being a relatively inexpensive and quick process – it is a no brainer that creators should be seeking official registration of all their work. You can learn more about the Copyright Registration process here.
For Legal Professsionals
For legal professionals, it is important to note that while the Copyright Claims Board will be based in the Washington DC, the CASE act dictates that the governing law for each dispute shall be the federal jurisdiction under which the claim would usually have been brought. Secondly, board decisions will not be precedential. The board is also not allowed to consider whether the infringement was willful as a federal court usually would. Additionally, while attorneys’ fees are recoverable under the Copyright Act, the Board may not award attorneys’ fees except in the case of bad faith conduct—in which case, any fee award may not exceed $5,000, absent extraordinary circumstances, such as where a party has engaged in a pattern of bad faith conduct. For these reasons, each copyright claim will still need to be evaluated individually to determine whether the new small claims process or a traditional federal action is best suited for a creators situation.
Beyond the monetary penalties, the board will also be able to send the infringing party a notice to cease the infringing activity.
Potential Risks of the New Small Claims Process
It is important to recognize that parties can opt-out of this new small claims process—once a claim is filed, the accused has 60 days to reject the small claims process, which would force the action to be heard in federal court instead. Decisions of the Claims Board may also be appealed on a limited basis to federal court.
The CASE act also touches on the reality that copyright trolls will likely attempt to take advantage of the new lower cost bar by filing frivolous claims. In an effort to limit this, if a party is found to have brought a claim to the Copyright Claims Board in bad faith more than once in a 12-month period, they will be barred from bringing another claim before the board for an additional 12 months.
While the new small claims process is intended to be an easier bar to entry there is still legal strategy involved to determine whether it is the best route for you, navigating the claim process, and understanding the risk that it may ultimately end up in federal court based on removal by the other party.
Intellectual property rights are only as valuable as owner’s efforts to enforce them. While copyright protection is established upon creation – the remedies to infringement increase significantly, including those mentioned here if a creator’s copyright is registered. If you have reason to believe that your creative work is being copied by an unauthorized party – you can schedule a consultation hereto begin the process of having your claim evaluated to see if this new process is a suitable option in our situation.
HOUSTON, TX – PIXI Universal, LLC (“PIXI”) was recently informed by TMZ reporters that Viacom International Inc. (“Viacom”), owner of the SpongeBob SquarePants franchise (“SpongeBob”), filed a lawsuit against PIXI for operating the whimsical, pop-up restaurant known as The Rusty Krab in Houston, Texas.
“The Rusty Krab is a parody restaurant concept inspired by SpongeBob giving it a new comedic purpose within the context of a restaurant. While Intellectual property law is complex, it is not a “secret formula.” Per U.S. copyright and trademark law, parody squarely fits into the fair use doctrine, which provides for the legal, unlicensed use of copyrighted material,” said Feras Mousilli, managing partner of Lloyd & Mousilli, the law firm defending PIXI against Viacom’s allegations.
“We have extensive experience prosecuting and defending against intellectual property infringement claims. It’s our bread and butter, so to speak. As with all of our cases, we intend on advocating zealously for PIXI,” added Lloyd & Mousilli’s litigation partner, Lema Barazi, who will serve as the lead attorney representing PIXI in court.
Unfortunately, Viacom asserts rather porous claims that The Rusty Krab misleads consumers to believe the restaurant is affiliated with Viacom’s SpongeBob franchise.
“Ever since Pop-Ups by PIXI started, we have clearly stated that we have no affiliation with the brands we are parodying. As with our prior well-known pop-ups, and with the Rusty Krab, potential customers are made aware prior to purchasing tickets that there is no affiliation to the brand itself,” said Sanju Chand, President of PIXI Universal, LLC.
The Rusty Krab is a place for fans of all ages to indulge in a paradoxical world reminiscent of SpongeBob SquarePants, as told through the eyes of PIXI.