Bo's bLAWg - Copyright Term and Unpublished Works

MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo, I was in my mother’s attic and discovered a box of my Great Aunt's personal writings and illustrations.  It appears they date from 1880 and earlier to her death in 1925.  I don’t think any were published, but I do not know!   I would like to publish them.  You indicated in a prior bLAWg that works published before 1923 are in the Public Domain.  What about unpublished works from that date and earlier?  Thanks!  Teri

Good question, Teri.  The Term of copyright for never-published works does require a different analysis from that we use for published works.

Start with the contemporary Term:  the life of the author/artist plus 70 years.  Working backwards, if the author/artist died more than 70 years ago – before 1947 – then their unpublished works are in the Public Domain.  So, if you knew that none were published, we could conclude with certainty that all her writings and drawings are in the Public Domain (“PD”).

Had any been published, and the copyright registered as required under the 1909 Act, you will recall from my earlier bLAWg, that a registration in its Renewal 28-year Term 1923 through 1963 was granted a Term of 95 years after its original publication date.  So, were you able to determine that certain works were published, the 1923 rule applies.  Those published in 1923 would have their last year of copyright protection in 2018.  Works first published in 1924 would be protected through 2019, and those published in 1925 would lose protection as of January 1, 2021.  (See http://annietroe.blogspot.com/2016/09/bos-blawg-copyright-term.html )

I would add that there is a different rule for unpublished anonymous and pseudonymous works, and works made for hire (corporate authorship).  In the case of these, the Term is 120 years from date of creation.  So, had you found these materials but their author was unknown to you, it is quite possible that those works could still be subject to copyright protection.  It is just a matter of knowing when they were created.  As of this year, creation before 1897 would make them PD.

Here is an online Chart that addresses this Term information for both published and unpublished works:  http://copyright.cornell.edu/resources/publicdomain.cfm
 
Now, I want to say a few other things about works in the PD.  First, while you have an absolute right to use these works any way you want, anyone else who has access to them would have the same right of use.  Were you not to grant any third party access – or limit access to those who sign a Non-Disclosure Agreement with you – you could be the first to publish, and thereby have that advantage on any third party who might want to publish or make other commercial  use of them.  Even better, were you to publish them in a manner that includes contribution of new elements and materials by you, you have an absolute right to claim a new copyright for your additions to the PD material.  By publishing a copyright notice with respect to your own contributions, would anyone else necessarily know which is your new material and which your Great Aunt’s?  Not necessarily…

More likely, however, even if you made known which was your Great Aunt’s original work, it would be impractical for any third party to ‘separate’ the PD material from your own additions and/or material enhancements.  For instance, with your Great Aunt’s pen and ink drawings, were you to add colors, they might make a line of beautiful new greeting cards.  While third parties would legally be able to strip out your color and look to add their own color choices, more likely than not, they would honor your copyright notice and published efforts.  There would be little economic incentive to go to that trouble since your line is already available for sale. 

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com

Have a legal question? email it to info@AnnGraphics.com. I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

 

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Bo's bLAWg - Copyright Small Claims Court

  

MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also Co-President of California Lawyers for the Arts. www.calawyersforthearts.org www.calawyersforthearts.org Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Readers,
Since July I have had a number of inquiries on my opinion of the proposal that the Copyright Office set up Small Claims Court. I’ve been mulling it over.  Here are my thoughts:

Background:
On July 14th, Rep. Hakeem Jeffries of New York introduced to the United States House of Representatives a bill, known as the Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2016.  https://assets.documentcloud.org/documents/2993945/CASE-Act-Jeffries.pdf

CASE is for the most part based on a Copyright Office Report released in 2013 speaking to the question of whether or not such a forum would be in the public’s best interest.  There is certainly good reason to consider the prospect.  Under the existing Copyright Act, the only forum for infringement claims, large or small, is Federal Court.  This is truly a situation where a wronged party whose original work has been copied, plagiarized or distributed without their permission has no choice but to “make a Federal case of it,” unless the matter can be resolved informally.  CASE would set up an alternative forum intended to be more accessible and efficient than your local Federal District Court.   Would it be?  That is yet to be seen.

In my practice, I have had no real problem resolving infringement claims on behalf of my plaintiff clients and avoiding drawn out litigation.  The reason for this is that my clients have been advised to register their copyrights within three months of first publication.  Having done so, I can leverage the two key benefits of registration into quick and (usually) substantial settlements. 

As mentioned in previous January 2015 bLAWg, registration benefits include the right to claim statutory damages of up to $150,000 and obtain prevailing party attorneys’ fees and costs against the infringing party – instead of being limited to “actual damages (the infringer’s profits if any), and being out-of-pocket for attorneys’ fees and cast.  http://annietroe.blogspot.com/2015/01/bos-blawg.html 

Even the most obstinate infringer will capitulate when their own attorney tells them they will have put up a large retainer to defend the claim and, when they lose, they will also have to pay my substantial fees.  When faced with this reality, I rarely have to file an action.  When I have to file, as soon as the defendant looks to retain counsel, I get a decent settlement offer.

However, I also get calls quite often from prospective clients whose works have been infringed, but who have not previously registered their copyright.  If the infringer does not have ‘deep pockets’ (assets) and there is no viable ‘downstream’ wholesale distributor or retailer with substantial profits from the infringement, it is clear that despite being harmed, such claimants have no viable remedy.  That is where I can see a Copyright Small Claims Court play an important role.

CASE describes the establishment of a reasonably well-conceived Copyright Claims Board with qualified copyright attorneys serving as “Claims Officers” empowered to hear infringement matters.  They would assure parties proper use of procedural due process, oversee basic discovery, conduct hearings and issue findings that would be published, and subject to filing as Judgments in the District Courts for collection purposes.  Unlike most State Small Claims Courts, parties can use attorneys or certified law student counsel.  All well and good.

Like the 1976 Act, claimants would be entitled to elect either Actual Damages (including the infringing parties’ profits), or Statutory Damages.  However, statutory damages would be capped at $15,000 instead of $150,000 – but only in the event of a registration prior to infringement (or within three months of original publication). In the absence of such registration, the statutory damages limit would be $7,500.

Since it is easy to leverage settlements with pre-existing registrations, it is hard for me to imagine anyone electing to pursue the Small Claims alternative unless they did not have a registration before the infringement.  In that regard, and given the prevalence of infringements where there are little or no actual damages or profits, the $7,500 statutory damage prospect would be a keen advantage – one that may pave the way for settlement early in the Small Claims process if the Defendant is at risk of that.

HOWEVER, what I believe to be the fatal flaw in the CASE legislation, is that participation by the parties is voluntary. (See Section 1403(a).)  The defendant may “opt out!”  (See 1405(h).)  Facing a potential statutory liability of $7,500, why wouldn’t they opt out knowing that the Claimant will be out-of-pocket to bring an action in Federal Court, and no statutory damages are available.

Nor is the Copyright Claims Board empowered to grant injunctions against ongoing infringements.  That limitation in itself would rule out Small Claims as a reasonable forum for many situations where what is critical is not present damage, but the long-term damage if the infringing activity is not stopped immediately.

While I can understand the basis for not affording the Copyright Claims Board the authority to consider and grant injunctive relief, until the opt out provision is fixed, I fear that the CASE court will end up being the forum that is used by ‘copyright trolls.’  There are many entities that search the internet for copied illustrations, photographs, music and/or film clips and make unreasonable demand$ upon the website owners who have innocently or mistakenly allowed uploading of infringing material. 

Taking down the offending image or material is not enough for these outfits.  Once they have identified what they believe to be an unlicensed use, they continue to send demand letters and threaten legal action.  Rarely, however, do the actual copyright holders take the initiative to go after such infringing use if the offending item has been removed from the website.  In the case of ‘innocent’ infringement, it is likely the damages awarded in Federal Court will be as low as $200.  Nor will the Court necessarily award them prevailing party fees since the damage was minimal and the defendant complied promptly with the ‘cease and desist’ letter.

I know a number of artist organizations are supporting the legislation.  The Graphic Artists Guild appears to endorse the supporting efforts of the Coalition of Artists which includes the American Photographic Artists (APA), American Society of Media Photographers (ASMP), Digital Media Licensing Association (DMLA), National Press Photographers Association (NPPA), North American Nature Photography Association (NANPA) and Professional Photographers of America (PPA).  https://graphicartistsguild.org/news/copyright-claims-board

Perhaps they do not share my concern over potential misuse of the Small Claims Courts or that their members will not be able to make meaningful use of it due to the Opt Out provision.  Or, perhaps they are pursuing changes in the CASE provisions to address those matters.  If you are a member, I recommend that you share your own view with them.

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com

 

Have a legal question? email it to info@AnnGraphics.com. I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

 

Make my day! and Buy me a cup of coffee (PayPal Link in right side bar, you don't need a PayPal acct.)

 Don't want to miss the good stuff? Sign up for my newsletter ;-)

 

Bo's bLAWg

MJ Bogatin (Bo) of Bogatin, Corman & Gold answers some of your questions surrounding the business of Art Licening. - THANKS BO!

Q: Is it ok to show work (to public, manufacturers, art directors…) if you have not gotten a certificate showing the work is registered at the us copyright office. I understand it is taking a long time to get one.

A: Yes, it is okay. Even though online registration is presently taking up to eight months for the Copyright office to complete, the short answer is that your copyright registration will ‘relate back’ to the time your application was filed as long as it included all particular information, specimens and fees that are required. This is established by the Copyright Act itself, Title 17, Section 410(d)  The Copyright Act can be accessed online at http://copyright.gov/title17/circ92.pdf .  See also the Copyright Office FAQ on this issue at http://copyright.gov/help/faq/faq-what.html#certificate

However, you do not need to have submitted an application for registration of copyright, much less received your certificate, to have a valid copyright interest in your artworks. First, as long as there is sufficient original creative expression, you have a copyright at the time of creation. Registration with the US Copyright Office simply adds valuable statutory protections that you would not otherwise have, and, if your unregistered artwork is infringed upon, you may not be able to afford to bring a lawsuit without registration protection. These statutory protections include: 1) the right to elect statutory damages of up to $150,000 for a willful infringement of your copyright instead of being limited to “actual damages” which may consist only of the infringer’s profits – if any; and 2) the right to ask the court to have the infringer pay your legal fees and costs, which you would otherwise have to bear yourself. (See Copyright Act Sections 504 and 505.)

Copyright law allows an Author/Artist to have three months from “publication” of her artwork to apply for registration, per Section 411(c)2 and 412.  So, even if your work were infringed upon by your distribution or imagery to art directors and manufacturers for potential licensing and/or sale, if you file your registration application within that three month window and your registration is subsequently granted, you will have the indicated statutory benefits.  That means you would not only be able to threaten a $150,000 willful infringement claim under Section 504(c), but a Copyright litigation attorney would likely take the matter on a contingent fee basis(!)

I should not fail to note that the Copyright Office recognizes a limited right of display of artworks other than for licensing or sale.  Such personal displays would not count as ‘publication’ and thus extend the opportunity to register within three months of a “legal publication.”  However, it is likely to be argued that your showing the artwork to the “public” is ultimately for the purpose of obtaining a sale or licensing opportunity.  Accordingly, to be safe, I recommend pursuing registration within three months of any first potential “publication” to people or entities that might make use or the imagery without a license from you.

If you have further questions about this that you want to direct to me personally, I can be contacted through my website linked below.

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com

Thank you so much Bo! EVERYONE, watch for Bo's post next month. If you don't want to miss these, I will post a link in my newsletter or follow this blog :-)