Archive for the ‘Copyright’ Category

You Need to Own the Copyright in Order to Allege Copyright Infringement

Wednesday, December 18th, 2013

     One of the most common things that we see as copyright lawyers is a scenario where someone is depicted in a photograph doesn’t want that photograph posted on a website. Sometimes it is a photograph of a person in a provocative situation. Sometimes an ex boyfriend, girlfriend, or lover has accessed a photograph and posts it on a website.

     The first thing a qualified copyright lawyer is going to do is determine who really owns the copyright to that photograph. Typically, the copyright is owned by the person who actually takes the photograph. So if you didn’t actually snap the picture, you may not have credible copyright claims. If however, your employee took the photograph, and they took the photograph as part of their employment, you in fact may have copyright clams. If you have a work for hire agreement in place with the photographer, then again you may have copyright claims.

     If you don’t have appropriate copyright claims to use in order to take down a photograph from a website, you may need to go in a new direction. If the picture is of you, you might be able to claim an infringement of your name and likeness for commercial purposes. Misappropriations of name and likeness claims are not as clean cut as copyright. You will need to speak with an Internet law attorney in order to understand what kind of leverage you might be able to use in order to get a photograph taken down from a website which you don’t want posted there. There are a variety of websites such as the “” which will happily host and upload a naked picture posted by your boyfriend. You need to understand all of the various options before trying to have the photograph removed. These websites are extremely sophisticated and understand when and if they need to do anything to help you out.

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Have You Been Accused of Copyright Infringement: What Precautions Should You Take to Avoid Being Accused

Thursday, October 10th, 2013


Matt: Hi, it’s Matt Plessner, and welcome to another installment of Copyright Law Radio. Today we are going to be talking about something that has kind of been a controversy on and off for quite some time. A while back in the earl 2000′s, sites came up like Napster, Morpheus and Grokster and stuff like that where you could download music for free. And of course, many artists didn’t like this and started pressing charges against even individuals. Now, stuff like this is still going on with certain sites and people are getting persecuted for this. We’re going to be talking about how you could avoid having this happen, and if it does happen to you, how does it happen, first of all, and what can be done about it most importantly. To talk to us about this today, we’re speaking with Attorney At Law Mark Clark from the Traverse Legal office of Traverse City, MI. Mark, thanks again for joining us.

Mark: You’re welcome, Matt, it’s always a pleasure to be here with you.


Matt: Now, if this happens to you, let’s just talk about how it happens. How does it happen, first of all?


Mark: Well Matt, being accused of copyright infringement can happen in a number of different ways. In the earlier days, as you were talking about, somebody could be accused of copyright infringement from either illegally downloading music or even illegally downloading a movie, say through Bit Torrent or a similar site. And you might get a, or receive a, threatening letter if they’ve identified you, and you might even, in earlier days, have been sued individually as an example to other to stay away from it. But what is happening currently is that the artists and the attorneys who represent them are no longer simply filing lawsuits against a named individual or an IP address, and including just a single individual. What they are dong is what is known now in the industry as filing suits by the copyright trolls, or “copyright trolling.”  And this envisions that a law firm or an attorney on behalf of a recording artist or a movie studio, for instance, will go after and identify IP addresses that have illegally downloaded a song or a movie and gathered a number of IP addresses in one jurisdiction and file suit against a “John Doe,” called a “John Doe Lawsuit,” identifying maybe 10, 20, 100 or more IP addresses. And then what they’ll do is to send a subpoena out to the cable company or internet service provider as the case may be and say, “Who’s on the account for this IP address?” And then, at a later stage, you’ll receive a letter as the IP account holder saying “we’ve identified you as somebody we believe has downloaded a movie,” and they will go ahead and say “we’re going to name you by name in this lawsuit unless you pay us X amount of money to resolve these claims.” And again, the industry calls it “Copyright Troll Litigation,” and it’s really an extortion game, because you as the IP address holder may have valid defenses to say, first and foremost, “I didn’t do it, and I don’t know who did it, and someone who is using my IP address could have illegally downloaded it,” but the problem is that, in order to defend yourself, you’re going to have to pay a significant money in legal fees to do that.


Matt: So obviously, it sounds like the best way to prevent it is just not to do it. Pay for your music. And that, of course, is the lawful way, but take into account that this has happened to you. What should you do? What sort of action should you take besides, of course, get an attorney, what should be done?


Mark: Well, in fact, that’s usually the best course of action. The attorneys here at Traverse Legal are contacted almost daily by individuals who have been ensnared in these copyright troll lawsuits. And of course, the first question is, how do I resolve this? What we normally do for somebody who has been identified and threatened to be named as a defendant in one of these copyright infringement downloading lawsuits is to identify any and all defenses, and then what we’re able to do is to as experienced copyright infringement attorneys is to contact the attorneys who filed the suit and to attempt to extricate them from these lawsuits for less than they otherwise might be obligated to pay in order to do it on their own. What will happen, Matt, is that they will be contacted and a price for resolving the issue will range in the neighborhood of five to ten thousand dollars in order skip the hassle of trying to defend oneself, oftentimes because we can identify valid defenses and other factors that would warrant mitigation of the issues were oftentimes able to extricate these folks from their copyright litigation from anywhere 1500 and 3,000 dollars, which unfortunately, is a small price to pay in order extricate oneself from these copyright troll lawsuits.


Matt: Well this sounds like great advice, Mark, and one more thing that I was just kind of curious, and I’m sure other people are as well, is there a certain number of songs that you would have to download, like for example, if you download a hundred songs versus if you just download one song, does that make you any more or less likely to get trolled, to get a lawsuit put on you.


Mark: I think the answer is no. Because even a single download can justify a claim by a copyrighted song or movie of a hundred fifty thousand dollars per violation. So even one violation results in a potentially significant claim by the artist. However, oftentimes, the potential clients will indicated that they had an opportunity in advance of the lawsuit after receiving a threat letter to resolve the issue for less than a hundred dollars, and it was only after they had ignored that initial letter that they receive the lawsuit. So, there is an opportunity, in some cases, to extricate yourself for an extortion payment, if you will, of a hundred dollars, rather than more money. What I would caution you, though, is this: that if you have downloaded more than one song or movie, you will be repeatedly paying the hundred dollars. So depending upon how much you have illegally downloaded, it may not make sense to respond to those letters and give your credit card and pay one hundred dollars when you’ve done this twenty, thirty, forty, [or] fifty times because you’ll keep getting the letters and they’ll keep charging you the hundred dollars in order to keep yourself out of the lawsuit. In case where you have multiple downloads, it may make sense actually to ignore those and actually get into the point where you are sued and require some attorney representation in order to get out for a reasonable fee.


Matt: Well Mark, thanks a lot for joining us and talking with us about this. I know this hits home to a lot of people here. And again, Mark, look forward to talking with you more in the future and thanks again….and this is Matt Plessner again speaking for Copyright Law Radio.


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Right of Publicity in Michigan

Wednesday, July 24th, 2013

What is the right of publicity? The right of publicity is the right to control the commercial use of ones own likeness. The right of publicity is a product of state law which, in Michigan, is defined largely by federal case law. This means that right of publicity claims may be subject to modified interpretation from Michigan courts.
In many instances the issue arises where someones photograph is utilized for commercial purposes. A commercial purpose is necessary in order to have a legitimate claim to the violation of your right of publicity. For instance, if your picture appears in a news story in a newspaper then you have no right of publicity claim because, as an exception under the copyright law, the newspaper is making fair use of your likeness to report a news story. Never the less, if they were to use that same photograph to promote their newspaper subscription or a service of the newspaper for their own private commercial purposes, they would be violating your right of publicity.
Likewise, if your likeness appears on a website without your permission, for the websites own commercial purposes, then you may have a claim against the publisher for violating your right of publicity to keep your likeness private and from being disseminated without your consent.
Do you think your right of publicity has been violated? Contact Traverse Legal to discuss your right of publicity claim with a copyright attorney.

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First Sale Doctrine Applies To Imported Books

Wednesday, July 24th, 2013

In March of 2013 the United States Supreme Court issued its opinion in the Kirtsaeng v John Wiley and Sons Inc case. The issue in the case was over the geographic scope of the first sale doctrine under copyright law. The first sale doctrine protects the re-sellers of a work after the initial purchase. In other words, it allows purchasers of works after the first sale, to then resell them without violation of the author’s or creator’s copyright.

The Supreme Court held in a 6-3 decision that the physical importing of books purchased cheaply abroad, can be brought into the United States and resold at significant profits. The issue of this case in the first sale doctrine involved a creative student who purchased textbooks in bulk from overseas and then imported and resold them on Ebay to college students.

The case is a victory for those anticipating the protection of the first sale doctrine vs import laws. The court in the case urged an amendment to the copyright law to prevent the situation under the first sale doctrine from recurring on a mass scale where works are available overseas much cheaper than they are in the United States, and the decision is seen as encouraging the importation of cheap works into the United States to the detriment of copyright holders who can exact a better price for the works in the United States.

Do you need assistance with an issue concerning the first sale doctrine? Contact the lawyers at Traverse Legal to discuss your first sale doctrine issues.

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Copyright Trolling

Wednesday, July 17th, 2013

Wikipedia defines a Copyright Troll as a party that enforces copyrights it owns for the purposes of making money through litigation in a manner considered unduly aggressive or opportunistic. The attorneys at Traverse Legal have vast experience in dealing with copyright trolls. Generally, copyright trolling contemplates a federal lawsuit identifying the illegal downloading of copyrighted videos or movies. The plaintiff identifies numerous IP addresses and then issues a subpoena to your cable company or other internet service provider to obtain the registrant of the IP address. Typically, the IP address registrant will receive a notice from their ISP provider that they have been named in a lawsuit.

If you have been named in a copyright infringement lawsuit in the manner just described, contact the attorneys at Traverse Legal for aggressive representation in resolving your copyright infringement matter.

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Cease and Desist Letter Dos and Don’ts: A Copyright Attorney’s Perspective

Tuesday, February 26th, 2013

You think someone is infringing your copyright. You see that they’ve posted something that belongs to you on the Internet, either a picture or a photograph or a piece of art or a literary work or a design, and you believe that a cease and desist letter should be sent. Continue reading Cease and Desist Letter Dos and Don’ts: A Copyright Attorney’s Perspective »

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Someone Posted My Picture or Photograph on Their Website

Tuesday, January 8th, 2013

Copyright lawyers deal with these types of issues all the time. A prospective client calls indicating that their photograph is showing up on someone else’s website. Sometimes, the photograph is one that the client does not want being shown on the internet, such as pornography or a nude photo. Sometimes, the person who is posting your photograph or picture is saying defamatory things about you as part of the post. As an internet lawyer specializing in copyright infringement issues, I get asked all the time what can be done.

The first thing that you need to understand is that the easiest way to have a photograph or picture of you removed from the internet is under the Digital Millennium Copyright Act (DMCA). A DMCA takedown notice can be sent by a copyright holder to a website host or even Google or Yahoo to have a picture or photograph removed or de-indexed from the web. In order to allow your attorney to send a DMCA takedown, you must be the copyright owner. This means that you either must have taken the photograph or have rights from the photographer assigned to you so that you, in fact, own the copyright. For more information about who owns a copyright, click this link titled: “Copyright Primer: Exclusive Rights to Reproduce, Distribute, Perform or Display the Copyrighted Work.”

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Bikram Yoga Does Not Own Copyright on Hot Yoga Poses

Tuesday, December 18th, 2012

Traverse Copyright Law has represented multiple defendants sued by Choudhury Bikram and the Bikram Yoga College alleging copyright infringement. Bikram Yoga has sued other studios over the years for offering Hot Yoga variations of the Bikram Yoga Method. In 2012, the United States Copyright Office issued a letter indicating that the previously issued copyright to Bikram for its yoga pose sequence was issued in error. Once the United States Copyright Office abandoned its allowance of the Bikram copyright, it was only a question of time before courts would soon follow. Continue reading Bikram Yoga Does Not Own Copyright on Hot Yoga Poses »

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User-Generated Content

Wednesday, October 17th, 2012

User-generated content is content that’s uploaded by website visitors or registered users to your website. Essentially, user-generated content is exactly that. It is content uploaded to your site by someone else and typically over someone who you don’t have much, if any, control over.

There are a lot of websites that are premised on user-generated content: Facebook, all social media. Twitter is all content that’s uploaded by users. Flickr, and any other photo-uploading website is dominated by user-generated content. Continue reading User-Generated Content »

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Copyright Primer: Exclusive Rights to Reproduce, Distribute, Perform or Display the Copyrighted Work

Wednesday, August 8th, 2012

If you are a copyright owner, you can claim ownership of the copyright in a work. A copyright grants the owner the exclusive right to do any of the following; to reproduce the work, to distribute the work, to perform the work, or to display the copyright protected work. A copyright also grants the owner exclusive rights to create a new work that is based upon the original copyrighted work.

Continue reading Copyright Primer: Exclusive Rights to Reproduce, Distribute, Perform or Display the Copyrighted Work »

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