 Jessica A. Eiss |
{{{calling Mark F to the studio thread please}}} Mark, Shawna needs help about copyright infringment info, in the studio thread #22!! Thanks! :), Jess
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Mark Feldstein |
Shawna Wrote on 10/25/06 Hey, guys can anyone help me or give advice on how I should proceed with the following issue. This totally ruined my day! A few months ago I started creating cards and announcements using photoshop. Well today I recieved this email from some card company in New Jersey: "Shawna: I recently came across your site at http://www.bellatristanophotography.com and was concerned to find that your cards and announcements page contains several designs that are copies of some of the designs on my site, http://www.metrobabycards.com. All of my designs are clearly copyrighted and protected by US and International Copyright Laws, as well as registered with the US Copyright Office. I take copyright infringement very seriously, and it is unlawful to infringe on copyrighted material. Your Julia/Ryan/Modern Christmas designs are direct copies of my Chloe/Edgar/Warm Wishes Designs. I'd rather handle this personally with you and not have this escalate any further than it has to. I would rather not involve my attorney. If you would remove all the designs mentioned above from both your site and myspace profile, I will consider this matter closed, as long as none of your future cards and announcement designs look like any metrobabycards.com design. Be advised that if no response is received by this Friday, October 27, 2006, my next step will be to contact your web host (with my proof and sworn statement of copyright) as they may become involved in any legal action I may have to pursue in order to protect my copyright. You can put an immediate stop to this legal process by simply removing my copyrighted designs. Thank you very much for your attention to this matter. If you have any questions, please feel free to contact me at info@metrobabycards.com. Thank you. Christina I had never heard of this company and am not sure how to proceed. My cards also have a copyright on them, and I found this info on the www.copyright.gov website: "How to Secure a Copyright Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date." They are very similar, but how do I know she didn't copy mine, I mean its just 3 pictures in a row with some block coloring and dots?
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Mark Feldstein |
Well Shawna, this is the stuff that federal litigation gets made from. I'm not going to ask for particulars or any questions pertaining to how you prepared your various works and when you registered your art work. Keep in mind, however, that we're not talking about just photographs here. It seems you're discussing derivative works, i.e., cards with photos. What you need to do is contact this person directly, by phone in response to her claim, which is sort of a cease and desist letter. I'd temporarily remove the images she's complaining about, but have her be specific. Then, you want proof of her contentions: Her copyright paperwork and work demonstrating it is in fact her original art work. Then you check your dates against her claims and dates, look for substantial similarities, figure coincidences, and make your own personal assessment of whether she copied your work before you registered it, or whether she copied it afterwards, or whether she in fact copied your work. If you can't sort this out between yourselves, you need a lawyer who specializes in intellectual property law and there are quite a few in Jersey, particularly around Parsippany or in NYC, of course. That's really the only advice I'm willing to offer you on this particular subject. It sounds like she's posturing an infringement action. The first step, regardless of how far it goes, is a cease and desist letter, which you have arguably have received. Get the images taken off the site, you can always repost them, and go from there. Best I can tell ya.
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Mark Feldstein |
BTW: Your reference to the U.S copyright law found in Title 17 U.S. Code, while accurate, omits a significant point: While a work is protected when reduced to a tangible/reproducible means of expression, you can't commence any action for infringement in the U.S. District Court, (and would be hard-pressed to defend any action claiming infringement) unless that particular work is actually registered with the copyright office within the required statutory period, which I believe is within 12 months of when the work was created. And, just so you're aware, copyrights are creatures of federal not state law and the U.S. District Courts (the trial courts of the federal government) are the courts that have exclusive jurisdiction to initially hear cases involving copyrights. Lastly, I wouldn't discuss the merits of specifics of any of this either here or anywhere else on the net. You really ought to find a lawyer to help you out on this one Shawna. An infringement action could cost big bucks to either defend, settle or both. And abandoning your work to someone trying to bully you into surrendering your copyright isn't right either. Talk to a lawyer where you live who specializes in this kind of law. If you can't find one on someones recommendation, call the lawyer referral service of the county bar association. They'll have a list of this kinds of practitioners.
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Jessica A. Eiss |
Thanks Mark, I figured you would have the answers, since you're the copyright guru! Your info is really good stuff. J
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
And of course, we all go to the sites to see if they are in fact very similar to each other.
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
And here I was thinking it was going to be about the so used "baby in pair of hands photo", and to my surprise. The little dots, the pink and blue, the pounds and ounces. Even the little heart at the bottom. This is looking like a strong-arm job.
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Christopher A. Vedros |
LOL Gregory. Can you see someone saying, "Hey, your naked-baby-in-a-washtub-with-rubber-duckie-and-fake-bubbles picture looks just like MY naked-baby-in-a-washtub-with-rubber-duckie-and-fake-bubbles picture! Yeah, yours and a million others. That one and the fingers-making-a-heart-shape-against-the-bulging-pregnant-belly picture are both high on my list of cheesiest most overdone photo ideas. This is a different situation, though. Both websites have lots of designs that look to be inspired by scrapbooking. My wife has been scrapbooking for years, and I've seen this kind of thing happen before. There are lots of SB'ing sites where people upload their designs, and lots of sites that offer templates and layout guides that are meant to be copied. Let's assume that neither artist is lying, and one didn't swipe the design from the other. My bet is that both artists saw these designs on some other website or in a magazine and "adopted" it as their own. I'm not accusing anyone of doing anything wrong. I'm just offering a possible explanation, and an example of how sometimes cases like this can be difficult to prove one way or the other. Are there really any new ideas left? ;-) Chris A. Vedros
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
Good point, and in your point, you actually may have brought up a new idea. Copyrighting and suing over royalty free art work. Which in turn, gives me a new idea. Sales tax on grocery store free samples. And I defy anyone, absolutely anyone, to prove that someone has already shot a picture of a single flower and titled it "Simplicity". BR> Support Lima Bean art.
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Samuel Smith |
i thought that was a peruvian flag.
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