Entertainment Law – Page 11 – The Business of Creativity

It happened again last week. I received a call from a Web designer (let’s call her “Jill”) who said her work had been ripped off. Jill had created a Web site (call it “site 1”) for an organization. This organization then needed another site with similar functionality, but instead of hiring Jill to do the second site (“site 2”), another person (let’s call him “Ted”) volunteered to build site 2.

Turns out Ted just copied Jill’s images and code (not even changing the file names) to make site 2.

Then I asked Jill the big question, “have you registered the copyright for the image and the code?” “No,” she answered in a dejected tone. I told her it was time to get that done and that she’s actually still in pretty good shape.

Now, many of you might be wondering why I would say that – especially if you’ve read my earlier post “$30 Insurance Policy.” One would think that since site 2 (the infringement) was posted before she registered her work, she not be eligible for statutory damages and attorney fees and be limited only to actual damages. In this case actual damages would probably have been a maximum of the fee Jill charged to create the first site – under $5,000.00.

The kicker is that an infringement occurs EVERY TIME someone loads site 2 into the RAM of their computer. Simply viewing the infringing site creates a copy and thus counts as an infringement.

The ACTION PLAN:

I told Jill to register her image and the code for the site right away. A copyright registration is valid from the day it’s received at the copyright office (assuming it’s a valid registration – but that’s another issue…). Any infringement that happens after the date of registration is eligible for an award of statutory damages and attorney fees.

As long as Site 2 (the infringing site) is live after the date of registration, thus infringing Jill’s registered copyright, she has the pieces in place to file a copyright infringement suit in Federal Court and if she wins (which is very likely in this case), she could be award enough money to make the whole process worth her while. Of course, the odds are that the organization, which is liable with the actual designer, and Ted would both remove the infringing site and pay Jill a reasonable sum before this ever hit a court room.

$45 Creative Insurance Policy

Creative people are always trying to save a buck. That’s not a bad thing unless it’s in the situation of deciding to save the $45 fee to register a copyright. If you think your song, art, design, or other creative expression is going to be exposed to the public in some form – and that your work is good enough that someone might “accidentally” be a little too “inspired” by your work (in other words: rip it off) – then the $45 is the best money you’ll ever spend.

Here’s why:

1. All copyright infringement litigation must be conducted in Federal Court – and to get into Federal Court you have to have a valid registration before you can even file. In other words, to enforce your rights, you have to file anyway – so you should file right after you’ve created the work in question.

2. If you file BEFORE the infringing action (before your work gets ripped off) then you are eligible to receive both “statutory damages” of anywhere between $750 and $30,000 per infringement (each song on a CD, each photo, etc. produced is an infringement) – and up to $150,000 per infringement if the infringement was “willfully committed.” Additionally, if the valid registration was filed before the infringing act, you can also collect your attorney fees.

3. If you DO NOT file before the action, then you have to prove your “actual” damages (which can be hard in many cases) and you have to pay your own attorney fees.

What does this really mean? Let’s say you would sell the rights to use a photo in a magazine for $5,000. Now, let’s say the magazine prints the photo without your permission or paying you anything in a run of 100,000 copies – willfully ripping you off. If you filed the registration before the infringement, then you could collect somewhere between $750 and $150,000 for each of the photo they used without permission (NOT for each copy produced) – plus your attorney fees. This is strong incentive for the magazine to settle with you before trial. If you had not filed the registration before the infringement, then you will have to prove the actual damages (in this case probably a max of $5,000) in Federal Court. You’ll have to pay your own attorney fees – probably at least $10,000 to take a copyright case through trial in Federal Court. So, they may have ripped you off, but you’ll be at least $5,000 out of pocket to enforce your rights.

Registering your work is easy. Just go to www.copyright.gov and download the appropriate form and follow the instructions. If you need help, call me.