Welcome to Copyright Law Radio. We bring you the best in copyright news, legal advice and information.  From copyright infringement claims and defenses to threat letter issues, DMCA takedown notice letters, copyright licensing, and legal analysis of the latest copyright law cases, we have a copyright attorney who can answer your copyright questions.

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.

Now, there is no question that sending a cease and desist letter is one of the standard items that any copyright law attorney is going to look at as an option, once you come through the door and you tell that copyright lawyer your problem.

My name is copyright law attorney Enrico Schaefer, and I’m here to tell you that you don’t always send a cease and desist letter when you see a problem with Internet-based copyright infringement. There are certain circumstances where sending a copyright cease and desist letter for infringement is the wrong move.

Let’s talk a little bit about the circumstances where copyright cease and desist letters are appropriate. The first thing that any good copyright attorney is going to do, once you come through the door as a perspective client, is get the background information, get the facts. One of the things that that copyright attorney is going to do is to grill you to better understand your claim of copyright ownership over the work. Many people do not understand what it takes to be the author of an original work that is subject to copyright.

Sometimes we’ll find out that the person who claims ownership of the photograph, for instance, isn’t the photographer. The photographer is a friend or works for them or took the picture for them, but they have no agreement with that photographer over an assignment of the copyright, or obtaining that copyright is part of work-for-hire or an assignment of the copyright or a license to the copyright going to someone who wasn’t actually taking the picture.

So the first thing a good attorney is going to do is to better understand who took the photograph, who put pen to paper on the original literary work, whether or not other people contributed to that literary work, and is going to validate the strength of your claim of copyright ownership.

The last thing you want to be doing is putting a copyright infringement or a Digital Millennium Copyright takedown notice in play if you’re not truly the copyright owner. Many lay people do not understand what it takes to become the legitimate owner of a copyright.

The next thing that the attorney is going to do is to better understand what you’ve done in terms of registering your copyright, and to make sure that if you have registered your copyright, that in fact it was done properly and that there were proper disclosures about all the people who contributed to the work, etc. These are very important issues.

If you’re in a band and there’s a song that your group came up with and everyone in the band contributed to writing the song and the music for the song, and in fact the performance of the song, then the question is very quickly going to become: Who is the copyright owner of that work, whether or not it’s the actual song notes on paper or performance of the song with the lyrics? So you need to understand these issues. Just because you are the lead singer of the band doesn’t mean you are the copyright owner of the work.

If you have not registered the copyright with the U.S. Copyright Office, or otherwise in a foreign jurisdiction, then you need to understand, before you send a cease and desist letter or a threat letter, what leverage you do and do not have. It may very well be that you have no right to file a Federal Court lawsuit under the Copyright Act if you have not registered the copyright.

So what are the alternatives to a cease and desist letter for copyright infringement? Well, there are many instances where, instead of threatening the person who has posted something that you believe is infringing the copyright, that we will engage the person in a conversation in order to find a solution.

Keep in mind you may have a limited problem now in that your copyright protected work is posted on one website. What you want to avoid is that that becomes 10 websites or 100 websites. So making the other side angry if you have really weak claims may not be your best move.

A good copyright attorney is going to find out what your goal is. If your goal is to simply have the work taken down, then a DMCA or Digital Millennium Copyright Act takedown notice may be appropriate, assuming that you can properly claim copyright ownership.

But then the question, again, becomes:  Does it go back up? So a lot of times you’ll want to engage the person who posted the work.

There are options out there. Sometimes sending a cease and desist letter or a threat letter to someone will merely provoke them to further violate your copyright. So sometimes you need to come with more leverage than a cease and desist letter. Sometimes you have to file a copyright infringement lawsuit right out of the gate because it is just that serious.

My name is copyright law attorney Enrico Schaefer. You’ve been listening to Copyright Law Radio, and we’ll see you next time.

If you are a website owner or operator, and you are receiving what is known as user-generated content, or UGC, from your website visitors, then you have some very specific issues which you need to be thinking about, both from a copyright point of view and a right to publicity point of view, as well as other issues regarding trademarks and related IP matters.

What you need to do is you need to design your business model in a way that provides you the greatest protection or immunity from litigation if user-generated content results in some sort of privacy allegation, or copyright infringement allegation, or trademark infringement allegation, or allegation of defamation, rights of publicity, these types of issues.

Now, user-generated content is not going away. Luckily for you, the law provides you some critical protections against some of these types of claims if you meet the definitions required under those statutes.

My name is copyright law attorney, Enrico Schaefer. Today we are talking about user-generated content, or UGC, and what a website owner or operator needs to do to protect themselves from getting sued for thing their users are doing on their website.

Today let’s talk a little bit about copyright issues. If end users are uploading text, photos, graphics or any other types of materials, or even linking from your website to those types of materials, you could ultimately get a third party copyright infringement claim directed at you saying, “Hey, that’s my photograph posted on your website. I, the copyright owner, did not give you permission, and I think that you might be liable as a result of posting that copyright protected material onto the sight.”

What can you do as the website operator? Well, first thing is did you post it or did your employees post it or was it, in fact, user-generated content? If it came from a third-party user website visitor, then you are going to be protected by the Digital Millennium Copyright Act, which allows you to implement a DMCA takedown procedure, so that content that is violative of third party copyrights can be. . . You could be provided notice of the copyright infringement claim. You have an obligation to remove the materials from the website, provide notice to the user who uploaded the material. There’s a procedure in place which will allow this to go back and forth like a Ping-Pong ball, but you stay out of it. That is to say, as long as you follow the DMCA takedown procedures required by law, you cannot be sued for copyright infringement.

This is a very important issue. The first thing you need to do is make sure you have a DMCA policy on your website, that the DMCA policy complies with federal law, that you in fact are getting the protection under the Digital Millennium Copyright Act, so that if someone accuses you of copyright infringement, you can show them your DMCA policy and avoid any potential copyright liability.

There are other issues that are involved in user-generated contents. Review sites, such as Yelp, and even Google Places, where people can review a company and post a comment, and hundreds of thousands of other websites like it, allow you to go ahead and accept user-generated feedback about a person or company. Sometimes that can be alleged to be defamatory content. You might get a letter from an attorney or lawyer saying, “My client has suffered defamation of character as a result of things that are posted on your website.

The Communications Decency Act, the CDA, provides you protection from those types of claims. You don’t have to do much of anything except qualify under the statute as a provider of internet services in order to avoid liability for user-generated content that is in the category of defamation of character.

Let me tell you, defamation of character on the internet, or internet defamation has become a huge issue. It is generating an awful lot of angst on behalf of business owners and individuals alike when they suffer a negative review. There’s a whole body of law around internet defamation that your attorney will have to understand. You want to certainly get someone who specializes in internet law defamation as your lawyer in order to handle those types of issues. You should also hire an internet lawyer who can make sure that you comply with the Communications Decency Act in order to be afforded that level of immunity.

Now, there’s another issue that tends to come up in the space of user-generated content and that is rights of publicity. Let’s say someone uploads a photo to your website, and it is a person’s face, and as a result of that upload, that person hires an attorney who sends you a cease and desist and threat letter and says, “That is my client. You are commercially benefitting from my client’s photograph without their permission, and you have no right to use the publicity of my client in order for you to financially gain.” Or, “My person is a minor and you are violating their privacy rights by allowing that photograph to be placed on your website.

These could be very tricky issues. You need to work with an internet law attorney, make sure that you understand what business model you are going to put around user-generated content in order to reduce risk of these types of claims.

Today we’ve been talking all about user-generated content, copyright infringement. We’ve been talking about internet defamation. We’ve been talking about right to publicity.

My name is copyright attorney, Enrico Schaefer. I hope you learned something today. We’ll see you next time.