what’s yours in mine: intellectual property and copyright for the magazine media publisher jim...

What’s Yours In Mine: Intellectual Property and Copyright For the Magazine

Media Publisher

Jim SawtellePartner and Co-leader, Media, Publishing and

Marketing GroupBryan Cave, LLC

Intellectual Property and Copyright

Only one thing is impossible for God: To find any sense in any copyright law on the planet.

Mark Twain

Intellectual Property and Copyright

• Copyright Basics– Title 17 United States Code– Copyright Act gives the owner exclusive

rights to:• Reproduce the work• Prepare derivative works• Perform the work publicly• Display the work publicly

Intellectual Property and Copyright

– Who Can Claim Copyright?• The author• Those deriving rights from the author• The employer of the author, if a “work made for

hire”

Intellectual Property and Copyright

• What is a “work made for hire”?– A work prepared by an employee within the

scope of their employment; or– A work specially ordered or commissioned

for use as:• A contribution to a collective work• Others specified uses, including A/V work

Intellectual Property and Copyright

• What Works Are Protected by Copyright Law?– Literary Works– Pictorial or Graphic Works (photos)– Musical Works– Motion Pictures and other A/V Works– Sound Recordings

Intellectual Property and Copyright

• Doctrine of “Fair Use”– Limitation on Copyright Protection– Copyright Act contains a list of the various

purposes for which the reproduction of a particular work may be considered fair • Criticism• Comment• News reporting• Teaching• Scholarship• Research

Intellectual Property and Copyright

• Doctrine of “Fair Use”– Factors to Consider

• Purpose and character of the use, including whether commercial or is for nonprofit educational purposes

• The nature of the copyrighted work• The amount and substantiality of the portion used in

relation to the copyrighted work as a whole• The effect of the use upon the potential market for, or

value of, the copyrighted work

Intellectual Property and Copyright

• Doctrine of “Fair Use”– What is fair use and what is infringement in

a particular case will not always be clear – There are no specific number of words,

lines, or notes that may safely be taken without permission

– Acknowledging the source of the copyrighted material does not substitute for obtaining permission or make it “Fair Use”

Intellectual Property and Copyright

• How to Secure a Copyright– No registration in the Copyright Office is

required– Copyright is automatically secured when

the work is “created” (fixed in a tangible form of expression so that it can be perceived)

Intellectual Property and Copyright

• What Works Are Not Protected By Copyright Law?– Titles, Names, Slogans– Ideas, Procedures, Methods, Concepts– “Common Property”

• Calendars• Height and weight charts• Measures

Intellectual Property and Copyright

• Publication

– No longer required to secure protection

• May be important for other reasons (i.e., may determine the duration of protection)

Intellectual Property and Copyright

• Notice of Copyright: ©– No longer required to secure protection – Why include ©?

• Informs public that the work is protected• Identifies the copyright owner• Shows date of first publication• Defeats defense of innocent infringement

– No permission required from Copyright Office before including notice.

Intellectual Property and Copyright

• How Long Does Copyright Protection Endure?– Author’s Life + 70 years (post 1/1/78)– “Works made for hire”

• 95 years from publication, or• 120 years from creation, whichever is shorter

Intellectual Property and Copyright

• Transfer of Copyright– Some or all of owner’s exclusive rights may be

transferred– Most common forms of transfer

• License• Assignment

– Transfer of exclusive rights must be in writing and signed by owner or their agent

– Transfer of nonexclusive rights may be enforceable though not in writing

– Need not be recorded with Copyright Office, but may be advantageous to validate rights, re: others

Intellectual Property and Copyright

• International Copyright Protection– No such thing as an “International

Copyright”– Protection depends on the national laws of

that country– Most countries do offer protection of

foreign works

Intellectual Property and Copyright

• Copyright Registration with U.S. Copyright Office– Not a requirement for protection– Advantages to registration

• Public record of copyright claim• Necessary in order to file infringement suit• If before or within 5 years of publication, prima facie

evidence of validity• If within 3 months of publication or prior to infringement,

statutory damages and attorneys fees are available• Allows protection against importation of infringing copies

through registration with U.S. Customs Service

Intellectual Property and Copyright

• Registration Procedures– Online: www.copyright.gov– Paper– Required submissions:

• Application Form• Filing Fee• Deposit

– Cost: $35-65

Intellectual Property and Copyright

• Frequent Legal Issues for Publishers– Properly obtaining legal rights from

authors.– License– Assignment (complete ownership)

• Best Practice:– Adopt and maintain good contracting / licensing

practices before accepting work for publication

Intellectual Property and Copyright

• Frequent Legal Issues for Publishers– Protecting copyrights obtained/controlled

• Use of Copyright Notice:

© (date of pub), (name of owner)• Registration

– Required to bring suit for infringement

• Best Practice:– Implement proper systems for protecting owned or

controlled copyrights

Intellectual Property and Copyright

• Frequent Legal Issues for Publishers– Infringement

• When work acquired contains infringing material (innocent infringement)

• When others are infringing on copyright controlled by publisher (enforcement)

• Best Practice:– Due diligence to contributors with appropriate

representations and warranties– Cease and desist measures directed at infringer

Intellectual Property and Copyright

• Remedies for Infringement– Injunctive Relief– Statutory Damages– Profits– Attorney Fees