Lancaster PA Real Estate Blog

I've been interested in copyrights and trademarks recently, and happened to find an attorney specialist locally who is on Twitter...Steve O'Donnell of Lancaster PA.  Steve was gracious enough to write me a guest blog post on the subject, which I feel is of great importance to those of us who are small businesspeople in Lancaster County and beyond sharing photos, etc. on the web.  Here Steve shares a strategy and his contact info if you'd like a more personal tactic.  Enjoy!

When a client has a photo that has been copied and put on a website, there are a few approaches available. Which makes the most sense depends on a number of factors such as the goals of the client, the nature of the work and of the infringement and how the infringement is impacting the client's income. These factors really should be discussed with an attorney familiar with copyright law to determine the best way to proceed.

Once I have a plan in mind that will best suit the client I need to gather some information and likely lay some groundwork before starting on the real meat of what the client has hired me to do.

The first thing I need to clear is whether the client actually owns the copyright. I'm not concerned with my client trying to commit a fraud though me, although I do have to watch for that, the problem is that since copyright isn't a physical thing it can be tricky to figure out ownership. For example, if the client's spouse took the picture at issue, then the spouse if the owner. If the client hired a photographer, then the photographer might be the owner, If the client took the picture as part of their job, that's a whole other can of worms. If necessary, I may have to secure ownership of the copyright for the client in order to proceed.

Once ownership is established, I register the copyright. Copyright comes into being without registration, but registration has some important benefits, such as the ability to sue, that I would want in place before going farther.

The next step is to compare the client's photo with the infringing photo. If it is a case where the infringer simply copied the photo from the client's website and used it on their own, the liability is pretty clear. On the other hand, depending on what the infringer has done, there may be a fair use defense available. The viability of that defense, along with the likelihood of the infringer using it is another analysis best left to a copyright lawyer. Regardless of the strength of a defense, that doesn't mean that the claim is dead in the water, but it might change how I proceed.

After the groundwork is done, the next step is to either send a letter to the infringer, send a Digital Millennium Copyright Act (DMCA) takedown notice or file suit.

The letter I send is basically of the “my client owns this copyright and you're infringing it. . . so stop” nature. It might mention the possibility of a license or for a copyright transfer. For some clients the letter is softer than others, and may simply request a link-back.

If the letter doesn't resolve the problem, or if the client wants to go for more of a critical shot, I'll draft and send a DMCA takedown notice to the ISP. Ordinarily, a company such as an ISP might be liable for the copyright infringements of their customers, this type of liability is often imposed on flea markets if they turn a blind eye towards their vendors selling bootlegged or pirated work. Under the DMCA, ISPs are immune from liability for the copyright violations of their users if they comply with the takedown notice. The notice has certain formalities that must be followed but generally says “someone using your service is infringing my client's copyright. . . take it down.” Usually an ISP has no interest in getting into a copyright fight caused by one of its users and will either lean on the user to remove the offending content or just shut the site down until the infringer removes the content.

Either of those actions will satisfy almost all clients that have had a photo pilfered.

If for whatever reason neither of those actions resolves the problem, the next step would be a lawsuit. For most instances of copyright violations of this nature, the cost to litigate is going to be more than the possible recovery, but it is always an option.

To learn more contact Steve at his office:

Law Office of Steve O'Donnell, Ph.D.
Lancaster, Pennsylvania
Office - 717.799.9471
Fax - 717-724-5428

info@3CPatents.com