this pandemic, many companies are reaching out to their audience with message of
reassurance, information about changes in their services, and ways their
audience can help during this challenging time.
short while later, she noticed this in her social media feed:
later this one:
asked me if these were instances of copyright infringement. If someone is
copying word-for-word or close to it, that raises the red flag for copyright
infringement. There are definite similarities. I wouldn’t be surprised if one
of these graphics were inspired by another’s post.
assume that one of these graphics is a rip-off of another. It doesn’t make sense
to me that someone would do that. In a niche market like dog walking and pet
sitting, there’s no downside to sharing another’s graphic since the provider
has to be in the physical vicinity of their clients. And for companies that educate
would-be dog walkers, you should be confident enough in your work that your
clients aren’t going to jump ship because of a graphic on social media.
there are only so many ways to convey the same information, and independent
creation is a defense against copyright infringement. It’s possible that each
of these three companies independently came up with the idea of creating a
graphic about how their audience could support the dog walking/pet care
industry while under quarantine or practicing social distancing.
as a lawyer and as an entrepreneur, if you see a graphic that would be helpful
to your audience, share it. The best way you can add to the conversation would
be to create your own content that builds on the original message, not just repeats
it. (If you’re going to create content that repeats another’s message or general
information, at least find an original way to do it.) If someone wanted to
build on this, they could have created a graphic about the importance of
maintaining normalcy in your pet’s life, which includes their walking schedule.
you get caught copying another’s content that’s so blatant that everyone will
know that one is a rip-off of the other, it’s going to have an adverse impact. Instead
of coming across has helpful, you risk being seen as lacking integrity and
You Get Caught Stealing Content
someone calls you out for potentially stealing content, and that’s what you
did, just delete what you created, and don’t do it again. Saying it’s a “good
message to spread” is not a valid excuse for copyright infringement.
off a company’s graphic is on the same level as claiming another person’s poem
as your own because you thought it was pretty. I think some people have a
mental disconnect where they don’t think copying commercial speech is as bad as
other infringing behavior. (Creating a graphic with your business logo on it,
even though it is not a sales pitch, is commercial speech.)
someone has a good message to share, and their original content is shareable,
then share it. That’s the best way to share the valuable message with your
have seen this graphic all over social media over the last few days:
Hat tip to The Counseling Teacher for creating
such a helpful graphic. This graphic has the right message at the right time.
Additionally, I haven’t seen any instances where sharing this graphic had a
negative impact on anyone’s business.
need to be mindful of the possibility that some people may use their photos
without permission. People will pull images to use on their website and social
media posts. Additionally, there are people who think they have rights to a photo
merely because they’re in it. I’ve even heard of hair and makeup artists who take
photos from the shoots they have worked on to use them in their portfolio.
issue is compounded by the fact that there is inaccurate information about photo
use on the internet. Some sources assert that you can use any photo you find on
the internet as long as you give an attribution and a link to the original.
They think they’re giving you free publicity, but what they may be doing is
committing copyright infringement and telling you about it.
with the End in Mind
When I work with clients who believe their copyright has been violated, one of the first question I ask is,
How do you want this to end?
Knowing what the client wants as a result of my work tells me what avenue for recourse they’re interested in pursuing.
maximize the likelihood of achieving your desired outcome, it’s best to decide
before your photos are stolen how you want to respond to the alleged infringer so
you can be prepared in advance for when it happens.
Respond When Someone Uses Your Photo Without Permission
don’t set the precedent that people can use your photos without a license. If
you let others use your work and then you want to assert your rights against another
infringer, the infringer could point to your past behavior and argue that since
you’ve allowed others to use your images without repercussions, that this new
infringer should be treated the same.
are five ways you can respond when someone steals your photo:
#1: Grant Permission
you’re ok with someone’s use of your image, you can grant them permission after
the fact. It can be something simple like
Hi there. I noticed you’re using my photo for XYZ. I’m ok with uses like this, but in the future, you need to ask my permission in advance. I grant you permission for this use.
#2: Cease and Desist Letter
is a letter from you (or your lawyer) to the suspected infringer that informs
them of the copyright rights they violated, directs them to remove the image by
a specified date, and tells them what you’ll do if they don’t comply. Be ready
to follow through on whatever you threaten/promise in your letter, or you’ll
are sometimes referred to as the “nastygram,” especially when it’s written by a
lawyer and the client’s goal is to put the fear of god in the person so they
comply. There is no rule that says you can’t send a letter that says,
I love that you love my photo, but you need to remove it by . . .
#3: DMCA Takedown Notice
stands for Digital Millennium Copyright Act. This option is only available in
situations where your photo and the infringement of it are both on the
internet. Instead of sending a cease and desist letter to the person who stole
your photo, you send a takedown notice to the company that hosts the website
where the infringement is occurring. Some social media platforms have a form on
their site for submitting a takedown notice with designated spaces for all the
information you’re required to include in a DMCA takedown.
#4: Send a Bill and a License
is at least one photo licensing company that is notorious for doing this, but
any photographer can send (or have their lawyer send) a letter to the suspected
infringer that says,
By using my photo, you’ve agreed to my licensing terms. Here’s a copy of the license and your bill!
you want to use this option, it’s ideal if you have your licensing terms or at least
information about licensing on your website.
#5: Sue for Copyright Infringement
option requires the most work in advance compared to the other options because
you must register the photo’s copyright with the U.S. Copyright Office in order
to be eligible to sue for infringement. There are time constraints in which you
have to register you work in to be eligible for statutory damages, including
attorneys’ fees. Additionally, your photo has to be stolen by someone who can
afford to pay the damages, otherwise you may never collect (and you’ll likely
have to pay for your attorney yourself).
registered your photo too late, you can still sue, but you can only get your
actual damages, and you have to pay your attorneys’ fees. Most of the time, in
this situation, it’s not worth it to sue because you’ll spend more on your attorney
than what you’d get in damages from the court.
the Right Option to Protect Your Photography?
have to make that decision yourself. Decide in advance how you want to respond
when someone steals your photo and plan accordingly.
strategy for responding to suspected copyright infringement can include more
than one of these options – such as sending a cease and desist letter yourself
and if that doesn’t work, then have your attorney send one. Some people are
more motivated to comply when they see the law firm’s letterhead.
of your strategy, it’s best to speak with your attorney in advance and consult
them when dealing with someone who’s using your photos without permission. There
have been many times that I’ve written the cease and desist letter for my
client to send that included the sentence,
I hope we can resolve this without having to get lawyers involved.
Lights Camera Lawsuit
There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.
At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!
Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.
Facebook Live is one of the more recent developments in live video streaming on the internet. When used properly, it’s a lot of fun to get a real-time glimpse into someone’s life or a breaking news situation. It has value, but it also has its place.
The Same Rules Apply
Legally speaking, the rules that apply to Facebook Live are the same rules that apply to live video apps. In 2015, I wrote a post about the legal dos and don’ts of Periscope. Those same rules apply to Facebook Live.
The challenge with live video . . . is it’s live. You can’t edit a live performance, so if you do something inappropriate or illegal, assume someone saw it, recorded it, and you may have to face consequences for it later. If you’re not jumping on Facebook Live to show a newsworthy event in real-time, I recommend you take a minute or two before you go live to think about the scope of want to talk about, what topics or language are out-of-bounds, and when you’ll know to stop the recording. This is especially true if you’re distraught or experiencing extreme emotions. If you’re especially upset, it may be better to wait a few hours until you’ve calmed down or record your thoughts without being live.
Playing Music on Facebook Live
A friend asked about the legalities of playing music during a Facebook Live broadcast. The rules that apply to radio stations, retail stores, and cover bands apply to a person who is live streaming. If the music is not in the public domain, the copyright holder has the right to control where their music is copied and played. Facebook Live is likely a public performance, so even if you own a copy of the song for personal enjoyment, you can’t play it publicly without a license. In these situations, the only person who can come after you for infringement is the copyright holder. If they don’t know or don’t care about what you’re doing, you may never get in trouble. (Of course there is an exception for someone who uses Facebook Live to give commentary or criticism of the music – that may be protected by fair use.)
Think Before You Post
As always, think before you post/broadcast yourself. Once you put something out there, you can never fully take it back. What seemed like a good idea in the moment may be tomorrow’s regret, with long-lasting implications. Last summer we saw the disturbing Facebook Live video of a Georgia mother beating her 16 year-old daughter. The woman wasn’t charged with assault, but I wonder what will happen the next time she applies for a new job and the news stories (with video) from this incident dominate the results when prospective employers search for her name.
These are my rules of thumb when it comes to posting anything on the internet:
Don’t post anything online that you wouldn’t put on the front page of the newspaper.
Assume everything you post will be seen by four people: your best friend, your worst enemy, your boss, and your mother. If you don’t want to one of those people to see what you’re thinking about posting, don’t say it.
I regularly get questions from people who sell shirts on Etsy, Café Press, or a similar website and they claim that another user is stealing their design. When I look more closely at the situation, I see all the person is selling is shirts with a short phrase, in a common font, and no other artwork or design elements. Many times, I have the unfortunate responsibility of telling them that there’s no intellectual property in their design, so there’s no infringement (that’s legalese for “stealing”).
No Copyright in Short Phrases
Copyright applies to original works of authorships when they are fixed in a tangible medium. A t-shirt is a tangible medium, and it’s possible to have an original work on a garment. However, short phrases aren’t original works, so the act of merely printing one on a shirt does not create a copyright-protected article.
If that’s all you’re selling – word or a phrase on a shirt – there’s likely nothing you can do (from a copyright perspective) to stop your competition from selling a shirt with the same phrase on it. If you look on any of these DIY shirt and craft sites, you’ll see the same phrases on shirts from different sellers. There’s no copyright protection for words, images, or phrases like “geek,” “reasonable person,” “Introverts Unite! Separately in your own homes,” and even more creative phrases like “terminally soulless douche canoe.”
This used to be less of a problem before we had Teespring, Zazzle, and sites that make it easy to create and sell shirts and whatnot. In the past, if you wanted to sell a shirt, you had design it, have it printed, and then sell them in shop or on the street, or if you had html skills, you could create a website and people could mail you a check for a shirt. That’s what my friend, Peter Shankman, did when he sold anti-Titanic shirts in 1998. He started selling them in Times Square and then sold them online. He was a success, in part, because he had no competition.
What Could be Infringement
Every t-shirt design on Etsy is not up for grabs. Copyright does not protect short phrases, but it does protect designs with original artwork on them. Additionally, copyright protects the images you post of your shirts on your site. If you see another seller using your photos, that would likely be infringement (assuming it’s your photo). Sending a DMCA takedown may be sufficient to get them removed from their online store.
The other thing to watch for is trademark infringement. A seller can use a short phrase as a trademark to brand their wares. They can also create a logo that they put on their products. If you see someone using your trademark or a mark that is similarly close to yours, that could be infringement and worth investigating.
Beat the Competition in the Marketplace
For anyone who is selling these types of shirts, the best way to deal with your competition is be better than they are. Give your customers a reason to buy from you than from another seller, or having it made at a t-shirt shop. It could be your prices, the quality of the garments, or something about your company that makes you more desirable than the others.
Beyond that, you may want to consider upping your t-shirt game by creating or purchasing designs that will be protected by the Copyright Act.
Copyright is an area of the law with many gray areas, so if you’re having legal issues regarding your copyright rights, you can contact me directly or an intellectual property lawyer in your community. I regularly post about copyright and other IP issues on Twitter, Facebook, YouTube, and LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
There are services that will print your photos and other artwork onto canvas – even in Walgreens. I recently heard of a situation where a customer commissioned an artist to create a portrait. The artist created the work and sent it to the customer as a JPG file, that the customer could use to get it printed onto paper or canvas. This may be a more efficient and cost-effective way for artists to create original pieces for customers.
The customer took the image to be printed on canvas, and the photo processor refused to do it without a release from the artist. I’d never heard of a printer requiring this, but the customer encountered this problem when they tried to use two different printers. To avoid such problems and delays in the future, the artist should provide a license with the JPG file for printing in case the customer is required to provide it.
Photo Processors and Copyright Infringement
Should photo processors be concerned about customers using their services to make unlawful copies of another person’s work? Probably not. I suspect a customer that comes in with a JPG to create one photo product is likely not committing copyright infringement. Of course, there’s an exception for art that is so well-known that a reasonable person would recognize the likelihood of infringement.
One way a photo processor could protect themselves from accusations of contributory copyright infringement would be to include a check box on the order form where the customer attests that they own or have permission to use the image in this way and indemnify the photo processor in the event of infringement lawsuit and with reimbursement for all related costs and damages. I know the company I use to print my custom t-shirts has this on their order forms.
License for Commissioned Work
This problem sounds like it’s easy to fix: the artist can add a licensing provision to the agreement that specifies upon payment in full, the customer will receive a JPG of the work and a license for how the customer may use it. That provision can specify that the artist retains ownership of the copyright and the customer may have the unaltered JPG printed on paper, canvas, and any other permitted medium for personal use (which may involve soliciting the services of a third party printer). That should hopefully be enough to satisfy the concerns of any printing service.
The artist may want to add other licensing terms, such as it’s a non-exclusive, paid-in-full, royalty-free license, whether the license is perpetual or time limited, how many prints the customer may make, and any other permissions or restrictions the artist wants to impose of their work. An intellectual property lawyer can provide more information about what provisions to include in such an agreement.
I was surprised to hear about this situation, especially if the customer only asked for one print. I would expect the order to be more extreme to raise a red flag for a printer, but on the other hand, I’m pleased to see printers being mindful about what they’re being asked to create. The laws and rights related to intellectual property are complicated and always situation-dependent. If you want to connect with me about your intellectual property rights as a consumer or an artist, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
Some people incorporate clips from mainstream movies into their YouTube videos. Depending on the circumstances, it may or may not be legal.
Movie Studio’s Rights
Whoever owns the copyright in the movie has the exclusive right to control where the work can be copied, distributed, displayed, performed, and what derivative works can be made from it. This applies to the whole film and clips of it. The copyright owner is also the only one who can come after someone for copyright infringement. So, if they don’t know or don’t care about what another person is doing with their work, that person will never get in trouble.
What about Fair Use?
The powers that wrote the Copyright Act understood that existing artwork inspire other artists to create new works. To that effect, they created the fair use provision of the copyright law (17 U.S.C. § 107 if you want to look it up).
The fair use law allows a person to use another’s work for the purpose of criticism, commentary, research, and teaching – often in ways that thoughtfully add to the existing work. The law provides four factors that the court may consider in determining whether a use is copyright infringement or fair use (which I turned into the handy mnemonic device PAIN), but these are merely points of consideration.
The fair use factors are not a mathematical equation to use to get a definite answer. The only way to know for certain if a use qualifies as fair use would be if there’s a lawsuit and the court makes a ruling on the matter. However, if the use of another’s work is transformative and doesn’t become a substitute for the original work in the market, there’s a good chance it’s fair use.
One way to avoid the issue about whether using a clip is copyright infringement or fair use, would be to get permission to use the clip by purchasing a license. Without this permission, there’s a risk that the copyright owner will order your video to be removed until the offending clip is removed.
Using a Movie Clip – Good Idea or Bad Idea?
If a client asked me about using a movie clip for a purpose other than criticism, commentary, as a teaching demonstrative, or an original compilation with other works, I’d challenge them to explain why they want to use that clip and what value it adds to their work. I’d also encourage them to at least do their homework on the copyright owner to see if they have a track record of going after people who use clips of their work without permission.
Ultimately, I respect my clients’ choices, but I try to help them make informed decisions about the risk they’re accepting when they use another’s work. Copyright and fair use situations are always complicated and always depend on the specific circumstances. If you want to connect with me and hear more thoughts about copyright, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
Earlier this year, Getty Images was sued for $1 billion (yes, that’s billion) by photographer Carol Highsmith.
Getty Images had sent Highsmith a letter and a bill, claiming that she was using one of their images without buying the requisite license. (Getty’s known for doing this.) It turns out Getty sent her a bill for using an image that she had taken herself. In fact, Getty was selling licenses for thousands of her images. Highsmith responded by suing Getty for $1 billion for violating her rights under the Federal Copyright Act and state level laws related to licensing.
Highsmith donated over eighteen thousand images to the Library of Congress and made available to others to copy and display for free starting in 1988. Her claims were based on the fact that Getty used her work without attribution and added their own watermark. In my previous post about this case, you can see the math that shows that $1B is a reasonable amount to request for damages given the number of photos in question.
I previously wrote that this will be a fun case to watch, assuming it goes to trial and doesn’t end a settlement with a non-disclosure agreement. But alas, it wasn’t meant to be.
The Court granted Getty and the other Defendants’ Motion to Dismiss the federal claims, leaving on the state-level claims in the case. The Parties apparently came to an agreement amongst themselves, with a non-disclosure provision, and stipulated to having the remaining claims dismissed with prejudice (meaning Highsmith can’t file this lawsuit again for these claims). The dismissal also directs each side to be responsible for their own attorneys’ fees and costs.
Judge Rakoff wrote that he will release a memorandum explaining his ruling “in due course.” I expect it will be an interesting read.
I feel for Highsmith. Not only did she feel like her rights were violated, but the Court disagreed with her and told her she had to pay her attorneys’ fees. That’s the risk a person runs when they pursue a lawsuit – the Court could say you’re wrong, and you had to pay possibly thousands or tens of thousands of dollars to get that answer.
So what does this mean for future cases that are similar to this? It’s hard to say, though it appears that the fact that Highsmith made her work available for public use impacted her argument that she had rights in the images in question. I don’t expect this to effect artists who retain their copyright rights and make their work available for free through Creative Commons and similar means. (Thank you to all the artists who do this. I am forever grateful for your generosity.)
There are a lot of issues that come into play surrounding photography, image rights, and copyright. If you want to chat more about these topics, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
Getty Images is known for sending letters to people suspected of using their images without purchasing a license. These demand letters essentially say, “By using our image, you’ve agreed to pay for a license. Pay $XXX by this date or we will sue you.”
They may have started the trend of other photographers sending similar demand letters when people use their images without permission. (I’ve sent these type of letters and counseled clients who have received them – usually from pulling images from a Google Image search without verifying that they had permission to use it.)
Getty sent such a letter to documentary photographer Carol Highsmith, claiming that she was violating their terms for using an image. Here’s the catch – it was a photograph that Highsmith took herself and previously shared with the Library of Congress to allow free use of her work by the general public. Highsmith has shared tens of thousands of images with the public through the Library of Congress since 1988.
Highsmith learned that Getty is claiming copyright rights to thousands of her images work and demanding payment for licenses, often without attribution to her, and adding “false watermarks” to the images. She filed a $1,000,000,000 (that’s $1B with a “B”) copyright infringement lawsuit against these agencies for the “gross misuse” of 18,755 of her photographs.
That’s a lot of photographs.
I hope they have good insurance.
But $1B?! Really?!
Actually, yes. In this case, suing for $1B makes perfect sense.
A party who adds or removes a watermark from a photo to avoid detection for copyright infringement can be fined up to $25,000 per image in addition to other financial damages for copyright infringement.
$25,000/image x 18,755 images = $468,875,000
And if a party is found to have violated this law in the last three years – which Getty has – the complaining party can ask for triple the damages.
$468,875,000 x 3 = $1,406,625,000
Looking at this, it’s easy to see how easy it is for Highsmith to reasonably request over $1B in damages. She’s also requested a permanent injunction to prohibit future use of images by Getty and the other Defendants and attorneys’ fees.
This could be a fun case to watch. If this case doesn’t go to trial (and most cases don’t), I hope the settlement isn’t kept completely secret behind a non-disclosure agreement. One of the recommendations I make to anyone who is a professional creative is determine in advance how you want to respond when your work is used without your permission and plan accordingly. For many people, it’s not if their work is stolen, but when.
There are a lot of issues that come into play surrounding photography, image rights, and copyright. If you want to chat more about these topics, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.
EDIT: The previous version of this post stated that Highsmith released her work to public domain. My apologies. Highsmith retains the copyright in her work, but allows others to freely use it through the Library of Congress.
Previously, fan fiction movies were limited to camcorders and sets people created in their backyards, but now with computer animation and other technology, a fan could create an impressive work of fan fiction. You can see some earlier Trek fan fiction on the documentary Trekkies.
A friend asked me to weigh in on these guidelines. As a die-hard Star Trek fan, my legal interpretation may be slightly biased in favor of promoting fandom. Below are the guidelines in full with my comments in italics:
CBS and Paramount Pictures are big believers in reasonable fan fiction and fan creativity (I’m glad you support fan art/fiction. Star Trek is known for inviting fan-submitted scripts, but what do you mean by “reasonable?”), and, in particular, want amateur fan filmmakers to showcase their passion for Star Trek. Therefore, CBS and Paramount Pictures will not object to, or take legal action against, Star Trek fan productions that are non-professional and amateur and meet the following guidelines. (It’s nice when people tell you how not to get sued.)
Guidelines for Avoiding Objections:
1. The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes. Is this because you don’t want fan fiction to compete with the TV series and movies? I wonder if someone is less likely to make significant money from a one-off video vs. a series. I wonder if the copyright holder would have objected if Melissa Hunter only made one Adult Wednesday Addams video instead of two seasons.)
2. The title of the fan production or any parts cannot include the name “Star Trek.” However, the title must contain a subtitle with the phrase: “A STAR TREK FAN PRODUCTION” in plain typeface. The fan production cannot use the term “official” in either its title or subtitle or in any marketing, promotions or social media for the fan production. (This makes sense from a trademark perspective. With brands creating content in various genres, it’s important to avoid confusing viewers about what is/is not made by the brand vs fans.)
3. The content in the fan production must be original, not reproductions, recreations or clips from any Star Trek production. If non-Star Trek third party content is used, all necessary permissions for any third party content should be obtained in writing. (This makes sense because of copyright. It’s ok to copy ideas, but not the original work itself. This may be overstepping a little bit depending on how they define “recreations.”)
4. If the fan production uses commercially-available Star Trek uniforms, accessories, toys and props, these items must be official merchandise and not bootleg items or imitations of such commercially available products. (I understand that they want to promote their partners and don’t want fans being misled. However, it makes more sense to require disclosure of sources of props and costumes. Some fans prefer to have a tailor custom-make uniforms instead of buying them from commercial sources. And thank you for calling them uniforms, not costumes – as a fan and Starfleet officer myself, I appreciate that.)
5. The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees. (What?! This seems overreaching and overly broad, especially considering that non-compete agreements are not permitted in California. Past and current employees can have non-disclosure agreements that limit their participation in other projects. Even a hobbyist has to pay for certain things – like a musician paying for studio time.)
6. The fan production must be non-commercial (This makes sense. Many artists approve of fan art as long as the person isn’t selling their work.):
CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease. (Thank you for understanding that hobbyists have expenses – despite your contradictory term above.)
The fan production must only be exhibited or distributed on a no-charge basis and/or shared via streaming services without generating revenue. (Ok – so you can’t submit your video to film festivals or run ads on it if you post on YouTube.)
The fan production cannot be distributed in a physical format such as DVD or Blu-ray. (This makes sense given current technology. They want to protect their intellectual property.)
The fan production cannot be used to derive advertising revenue including, but not limited to, through for example, the use of pre or post-roll advertising, click-through advertising banners, that is associated with the fan production. (Fair enough.)
No unlicensed Star Trek-related or fan production-related merchandise or services can be offered for sale or given away as premiums, perks or rewards or in connection with the fan production fundraising. (This makes sense in terms of protecting their intellectual property, and also makes it more challenging to use fundraising sites.)
The fan production cannot derive revenue by selling or licensing fan-created production sets, props or costumes. (Agreed. This makes sense.)
7. The fan production must be family friendly and suitable for public presentation. Videos must not include profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content. The content of the fan production cannot violate any individual’s right of privacy. (I understand no porn, but no illegal activities? What are the bad guys supposed to do? Even Star Trek episodes and films depictions of tobacco and alcohol and the films contain the occasional swear word.)
8. The fan production must display the following disclaimer in the on-screen credits of the fan productions and on any marketing material including the fan production website or page hosting the fan production:
“Star Trek and all related marks, logos and characters are solely owned by CBS Studios Inc. This fan production is not endorsed by, sponsored by, nor affiliated with CBS, Paramount Pictures, or any other Star Trek franchise, and is a non-commercial fan-made film intended for recreational use. No commercial exhibition or distribution is permitted. No alleged independent rights will be asserted against CBS or Paramount Pictures.” (This makes sense, but the last sentence suggests that CBS and Paramount may be able to use fan-created content without obtaining the creators’ permission.)
9. Creators of fan productions must not seek to register their works, nor any elements of the works, under copyright or trademark law. (What about the fans’ rights to protect their original works of authorship and their brands that don’t infringe on CBS or Paramount’s rights?)
10. Fan productions cannot create or imply any association or endorsement by CBS or Paramount Pictures. (Agreed.)
CBS and Paramount Pictures reserve the right to revise, revoke and/or withdraw these guidelines at any time in their own discretion. These guidelines are not a license and do not constitute approval or authorization of any fan productions or a waiver of any rights that CBS or Paramount Pictures may have with respect to fan fiction created outside of these guidelines. (This makes sense as long as CBS and Paramount don’t change the rules and go after a fan film creator who reasonably complied with the guidelines as written at that time.)
I appreciate that CBS and Paramount Pictures’ desire to protect their intellectual property and that put out guidelines to further this goal, but I wish they would be more fan-friendly. Hopefully this is only an over-zealous reaction to the recent lawsuit and not a sign of future legal battles between Star Trek and their fans.
What should you do if you discover that someone is using a photo you took without your permission? As the person who took the photo, you are likely the copyright owner, which gives you the right to control where and how your work is copied, distributed, displayed, and used in other works. You may have grounds to sue the person for copyright infringement, but that’s often not a practical course of action, especially if your damages are minimal or the alleged infringer doesn’t have means to pay you the damages.
In many cases, the owner simply wants the person to stop using their image, so what do you do? If your goal is removal of the photo and cessation of further uses, this is one way to proceed.
1. Dial Direct: Contact the suspected infringer directly, inform him/her of your concerns, and request that they remove the image. Many people still believe that they can use any image they find on the internet as long as they give an attribution and a link to the original.
Look for contact information on their website if that’s where the alleged infringement is occurring. If that information is not available, it might be listed on WhoIs from when the person registered the domain.
2. Send a DMCA Takedown Notice: If you can’t contact the person or they don’t respond to your request to remove your image, you can send a DMCA takedown notice to the company that hosts their content. If the image is on a person’s website, be aware that the company that registered the domain is not necessarily the same company that hosts the site. Before I send a DMCA takedown notice, I usually contact the hosting company and verify that they host the site in question. I also ask if there’s a specific email address to use to send DMCA notices or if they have a form on their site for submitting them.
The downside of sending a DMCA takedown notice is that it may result in the image being removed, but only for a short time. The infringer can have the content restored to their site merely by sending a counter takedown notice.
3. Consider the Court or the Court of Public Opinion: If sending a DMCA takedown notice is not effective, you may have to sue the person to get the image removed from their site or account. You may also consider turning to the court of public opinion. If you pursue the latter option, be careful about what you say. You don’t want this person to have grounds to sue you for defamation, false light, or a similar claim.
Of course if you’re in this type of situation, it’s best to consult a copyright lawyer to determine the best course of action based on your specific circumstances. If you want to talk with me about copyright issues, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.