DMCA Safe Harbor protection

Under the safe harbor, webmasters and site owners are insulated from liability for material uploaded on their sites by users, if they act swiftly and appropriately in response to DMCA takedown notices. But, the law requires compliance with certain formalities before the safe harbor provisions will be applied to your site. Until you’ve jumped through the hoops set up by the law, you’re exposed to full copyright infringement liability as a vicarious/contributory infringer.

Fortunately, it’s fairly easy to comply with these formalities. The most complex component involves designating an agent to receive notice(s) of copyright infringement, and to respond expeditiously to notices of allegedly infringing material. The designation of this agent needs to be registered with the copyright office on a special form, and the filing fee is just $105. It’s surprising, therefore, that so few sites bother to register.

How to Register.

Designating your DMCA Agent is simple. Visit the copyright office website and download the form, entitled “Interim Deignation of Agent to Redeive Notification of Claimed Infringement”. Once completed, send it with a check or money order for $105. You can register multiple domains with the same form, with an additional cost of $30 per ten domains.

Should you register a DMCA Agent?

If there’s any chance at all that a user of your site will upload copyright infringing material, the cost of registration is some of the cheapest insurance you can find. If you’ve got a blog that accepts comments, or a forum where users interact, it’s probably worthwhile. Even if you moderate your comments and forums, you could miss something, so the protection of the safe-harbor has value.

What’s not covered.

It’s important to note that content posted by the operator of the site (that’s you, or your employees, agents, etc.) is not subject to the DMCA’s safe-harbor provisions… So it’s critical that you take steps to ensure that your content doesn’t infringe other people’s copyrighted material.

Conclusion

Although registration of a DMCA agent is relatively easy, many of our clients enlist our aid, and it’s a service we’re glad to offer. If you have any questions or concerns about your website’s copyright liability, call me for a consultation. I’ll be happy to help.

If you’re a blogger, YouTube-er, or podcaster, you need this book!  http://podcastlawbook.com

Related articles

• What is a Dcma Takedown? (socyberty.com)

In the movie Hangover II, Ed Helms’ character wakes up with a replica of Mike Tyson’s facial, tribal-art inspired tattoo, created by a tattoo artist from Missouri, and comedy ensues.. but not for the film’s producers, who failed to get the proper clearances from the owner of the copyrighted design.

The tattoo artist in question has registered the copyright, and filed a lawsuit for damages and an injunction. He even initially asked the Court to issue a preliminary injunction which would have prevented the release of the film. Although Warner Bros. avoided the preliminary injunction, and was thus allowed to release the movie (garnering tremendous first weekend box-office revenues), in denying the injunction, the Judge make an important statement. Specifically, the Court acknowledged that the tattoo artist has established a “likelihood of success on the merits” of the copyright infringement case. Essentially holding that the Tattoo was copyrightable, and that the film probably does infringe that copyright.

What if Tyson had obtained the copyright in the tattoo, rather than allowing the artist to retain it? In that case, he could have granted WB the right to reproduce it in the film. (Tyson appeared in the first Hangover picture, and apparently has a cameo in the sequel, as well.)

While such grants aren’t commonplace in current talent agreements for motion pictures, it’s a safe bet that following this lawsuit, they will be included as a matter of course.

So, if you’re an on-camera personality, whether an actor, reality show contestant, talk-show host, newscaster, or sports-figure, you can expect that your next contract will include some language stating that you have the complete right and authority to enter into the contract and to grant the rights included in the agreement, which will likely include the right to display, reproduce and make derivatives of any body art, adornments or stylings you may have. If you don’t own such rights, you’d need to alert the producers, and warn them to obtain clearances from those who do. Since producers aren’t likely to want to take on such additional leg-work, not owning the rights in your body art and adornments could actually cost you the job

Now, it’s anything but a given that every tattoo is sufficiently original to entitle it to copyright protection…. and even less certain that the artist will care, or jump through the regulatory hoops of registration, but some will. So, discretion being the better part of valor, it’s incumbent on on-camera folks with tattoos, piercings, and what-have-you, to make sure they obtain either (a), the copyright in any such artworks, or (b) a non-exclusive license to use, display, make derivative works based on the artworks, and to license others to do the same.

Yes… things just got more complicated. The good news: The paperwork is simple. Most lawyers who pay attention to this stuff can crank out the needed copyright assignment documents in about 15 minutes.

Getting a tattoo? Got some existing artwork that could be an issue? Give me a call!

Q:  If a screenwriter sells the copyright to their screenplay, do they also give up the rights to the novel if they’ve written one based on the same story?

A:  Not necessarily.  If the novel is based on the screenplay,  or tells the same story, then yes, the transfer of copyright in the screenplay would prevent the writer from writing a novel, but if they’re just both based on the same underlying idea, then the converse might be true.  Likewise, if the novel already exists at the time of the sale of the screenplay, it can, if things are handled correctly, be treated as a separate work.

But, (and this is a big one), the real answer to the question lies in the contract for the sale of the screenplay. Purchasers of screenplays typically expect that they have exclusive rights to the story, and that they’ll be able to exploit their film without competition from the writer’s other works.  So, the contracts contain carefully crafted warranties and representations about ownership of the material.    Even if your contract doesn’t specifically address author written novels based on the same underlying material, if you sell your screenplay, and then publish the same story in book form, you’re looking for trouble.

You might get away with it this time, but there won’t be a next time.  It will likely be the last time you sell a screenplay in the small town known as Hollywood.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

Q:  Last year I hit it off with fellow film-maker and we decided to write a script together. This was the first time I’ve had a partner on a writing project and we were both very eager and excited to produce something. Unfortunately, we began without considering a contract! Fast-forward past the developing difficulties in communication,  an inability to give and receive healthy criticism, to his decision to go AWOL. We have a solid yet rough first draft that can go nowhere fast because he now refuses to return emails and calls. I’m not sure what my options are at this point. Can I offer him a stipend and buy the rights from him? And if this is the case, what does one do with the subsequent writing credits? And what kind of things would be included in a contract of this type?

A:  Ah, the perils of collaborating without a written collaboration agreement.  You correctly recognize that a written collaboration agreement could have saved  you much grief and uncertainty.

When you collaborate with someone, the law considers you Joint Authors, and therefore joint owners of copyright.  Technically, a joint author can exercise any of the rights of a copyright owner without the other’s consent, as long as it doesn’t transfer exclusive rights.  So, you could continue with a new draft on your own, but you’d still be required to share billing credit and compensation with your former co-writer.  (and the same would apply to him)  But, it’s unlikely any buyer would accept something less than exclusive rights, so you’ll eventually need to deal with one-another and work out an agreement.

What are your options?  I suppose you could offer him a bit of cash, as a buy-out of the rights, if he’ll agree.   You could also just agree on a fixed percentage split for the work he’s done to date.

You’ll definitely need something in writing now, so you can be secure in the knowledge that you can exploit whatever finished product you ultimately develop.    That agreement should address compensation, transfer of copyright, and the questions of credit, at least as between the two of you.  (But note that, if you’re WGA members, or the project is produced by a WGA signatory, it’s likely that the union’s rules will govern credit issues)    In fact, you could agree that credit determinations will be handled as though governed by WGA guidelines even if it’s not a WGA production.

BUT, all of this depends on your recalcitrant (and absent) co-writer being reachable, and amenable to such a deal.  If he’s angry or upset, he may simply prefer to ‘stick it to you’ by refusing to make a deal.

My advice would be to try to reach him with a proposal, but don’t throw too much time, energy or money at the situation if he’s not willing to play ball.  If he seems willing, hire an experienced entertainment lawyer to write up your “termination of collaboration” agreement.  Don’t try to do this yourself.

But, If he’s not interested, move on.  Write your next project.  Writing more new material is the best thing you can do for your career.

Either way, chalk this up to experience.  You’ve learned a few important things:

1.  Collaborating isn’t easy or simple.
2.  Good collaborators are hard to find.
3.  “Breaking Up Is Hard To Do-ooo”
4.   Always have a written collaboration agreement… it’ll save you money, grief and headaches in the long run.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

With the current backlog of registrations in the Copyright office, it’s especially important to get your works into the que for registration as soon as possible. The agency processes applications on a first-in, first-out basis.

Here, however, is yet another good reason to file your copyright registration now. It’ll save you money. According to this report on the U.S. Copyright Office Website, On August 1st, many copyright office fees will increase.

Copyright registration is relatively simple, but you may need help from an experienced entertainment- or intellectual property attorney for more complex applications, such as those involving multiple works registered as a ‘folio’, or for musical compositions embodied in recordings (essentially two different works).

Even after the fee increases, copyright registration is still one of the most affordable ways an artist or author can protect herself against the losses that can be suffered from unauthorized copying of her work.

Now’s the time folks. Call me if you need advice about copyright registration or any other intellectual property protection issue.

A vocal majority on the panel, and in the audience seemed to take the position that the only solution is to require Internet Service Providers to charge their users a monthly digital media consumption fee of some sort. This, it seems, part of the idea behind CHORUSS, a pilot program at a few universities, which requires students to opt-in by paying a monthly fee, that the University will then pass along to content owners.

For me, this solution is plagued with problems. First, in all likelihood, if implemented on a broad scale, it will be an automatic charge we all pay. Those who never file-share or download media content will be subsidizing the users who DO download, especially those who take more than their fair share. Second, this looks to the wrong party for payment. Isn’t asking ISPs to pay music royalties when songs pass through their networks similar to asking UPS to pay book authors’ royalties when they deliver books bought via Amazon.com?

Now, of course no solution to this problem is perfect, but it’s my sincere hope that the content community and the tech communities can find a better solution. Unfortunately, other solutions discussed involved asking ISPs to log every bit of data passing through every user’s IP address… which raises tremendous privacy concerns.

One interesting view was that espoused by a manager/consultant on the panel who seemed to suggest that we just need to accept that file-sharing is here, and that many (but not all) consumers are getting (music) for free… so we’d better find something else to sell them. (Sounds like a ‘loss-leader’ approach). ‘Give away the recordings of your songs… develop a fan base, then sell ‘em concert tickets and T-shirts’… seemed to be his notion.

Clearly, there’s no good solution, but the prevailing view of the panel is that something must be done. If artists such as songwriters can no longer receive fair compensation for their efforts.. they’ll find something else to do… and society will be the worse for it.

According to this piece at the Hollywood Reporter.. YouTube is taking things a step further… allowing users to REPLACE offending music in video soundtracks with pre-cleared music….  (automatically?)

I ask you again…  does this kind of filtering do any harm to Safe Harbor protections?

Did the RIAA just WIN the battle against Fair Use, and nobody noticed?