Jakub Jirsak
Copyright and intellectual property
Copyright, patents and intellectual property protection law and rights.
In June, photographer Matilde Gattoni filed suit in the Southern District of New York against Microsoft, alleging that the company used 15 of her photographs without permission, infringing on her rights as the copyright holder.
And since those photos are registered with the U.S. Copyright Office, if she can prove that Microsoft’s use of the images was “willful”, she could collect up to $150,000 in statutory damages, per image.
That’s right. For grabbing a few photos off the internet and using them in a story, Microsoft could be facing a $2.25 million fine.
While most businesses in Central Kentucky probably won’t have to deal with lawsuits of that magnitude, or face charging Microsoft with stealing their content, copyrights around digital content and intellectual property are things all businesses and content creators need to be aware of.
Copyrights are literally the exclusive right to use a piece of original work, said Brian Chellgren, a partner at Denton’s Bingham Greenebaum in Lexington.
“A creative work of authorship, which can be a photograph, written text of sufficient length … or creative design work, music, etcetera, all of that is protected by copyright,” he said. “And once it is fixed in a tangible medium of expression, it is protected. Essentially, if you’re writing on a sheet of paper, the minute you put your pencil down, there is copyright protection. The minute you take the picture and there is a storage version of it, there is copyright in that creative work.”
The issue with copyright protection, Chellgren said, is enforcing your rights.
If you find someone using your work, you can ask them to take it down, or pay you for the content, but unless you can prove that you created it, or have registered it with the federal government, it can be tough to prove it's yours.
If you find someone using your work, you can ask them to take it down, or pay you for the content, but unless you can prove that you created it, or have registered it with the federal government, it can be tough to prove it's yours.
“It is very, very common that when an allegation of copyright infringement is made, the first response is ‘Oh. Okay, well, prove that you have exclusive rights to this,’” Chellgren said.
Registering the material with the federal government is a cheap and effective way to prove that he said, but when businesses make multiple postings on social media or blog posts, it can be a bit more complex.
“I think the government filing fee now is around $55 and someone who knows what they’re doing can prepare an application in probably an hour or less,” he said. “Let’s say I am Company X, and I have a website, and I have content creators who blog on the website every day or two … what I would do is file a copyright application for the entire website and then, every six months or so, file a new application that would … only seek protection for all the new content and changes.”
The challenge comes, John Krieger, a copyright attorney with Dickinson Wright, PLLC, said, in knowing where the content is coming from and whether or not you actually have permission to use it.
“A lot of people have the assumption that if it’s on the internet they can use it … and that’s not always the case,” Krieger said. “When it comes to your own small business, it’s important that you create the content that you’re going to be using.”
That means taking one’s own pictures, or writing one’s own copy.
It’s important to note, he said, that the owner of the copyrights to a photograph is not the person whose equipment the photo is taken on, but the person who actually takes the photo. Copyright ownership is based upon who created it, not who owns the equipment or how much was paid for it.
“If you hand your phone to a friend and have them take a picture of you, the person who owns the rights to that photograph is your friend, not you,” he said. “The rights are attributed to the photographer, not the person who owns the phone.”
That’s also a crucial element to consider when hiring someone to create content and post it to social media. If the social media person is one of your employees, the rights to that content belong to the business. But, if the social media person is an independent contractor you have hired to work on your behalf, the rights belong to the independent contractor.
“You can negotiate in your contract with them that they assign the copyright to the content to you,” he said. “But it should be spelled out in any agreement you have with them who owns the copyrights to the materials they produce.”
Jack Wheat, a Louisville attorney who is head of the intellectual property department with McBrayer PLLC, said businesses should keep an eye out for their work online.
“As we like to explain to our clients, registration is the best form of protection for trademark and copyright intellectual property as an initial matter,” he said. “Start there, then keep an eye out for infringement. There are plenty of search tools available to see if your content has found its way elsewhere.”
Laws have not kept up with the changes the digital age has brought about, he said, but some make protecting yourself easier.
“As with most technological issues, the law has struggled to keep up with the advancements of the internet at the same pace at which they’re occurring,” he said. “The last major legislative statement on copyright law, for instance, is the Digital Millennium Copyright Act, which passed in 1998 and predated iPods, social media and most forms of practical streaming of content. The way we consume content has changed completely, and intellectual property law is only just getting around to meet it.”
But the Digital Millennium act has made simple enforcement of copyright infringement easier for small businesses, he said.
“The most prominent way to enforce a copyright is to file suit against alleged infringers, but there are other means to protect a copyright, especially online,” he said. “The Digital Millennium Copyright Act allows copyright holders to fairly easily send a ‘takedown demand’ to a website owner or internet service provider to have allegedly infringing content removed, and if the infringement claim appears plausible, this simple request often results in discontinuation of the internet posting which is the subject of the ‘take down’ demand.”
If that fails, he said, it’s time to contact an attorney.
But even then, said Mari-Elise Paul, an attorney with Stites & Harbison’s Intellectual Property & Technology Group, don’t expect a $2.25 million settlement.
“There is a common misconception that copyright owners are entitled to lots of money anytime their IP is stolen on the internet,” Paul said. “This is probably not the case, unless that IP really is worth millions of dollars. Copyright owners who have had their works infringed are generally only entitled to the fair market value of the stolen work.”
That content and those images, however, are part of your business’s intellectual property, and as such, have value. Just how much value is tricky, she said.
“In general, the same rules apply to the protection and enforcement of digital IP as do to non-digital IP. Assessing the monetary value of digital IP is no different than assessing the value of non-monetary IP,” she said. “It is important to keep in mind that not all IP is created equally. The value of IP is dependent on the amount of money that someone is willing to pay to purchase or license that particular piece of IP.”