copyrights

The Digital Millennium Copyright Act of 1998

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 

“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:

1. She owns a valid copyright 
2. 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.

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