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Why and How artists MUST take action when their work is infringed.

Every creative person, whether an actor, writer, filmmaker, musician or painter runs the risk of his or her work eventually being copied without permission.

While sometimes, this copying is done with a clear profit motive, an increasingly common vector by which unauthorized copies appear is through well-intentioned friends and fans posting an artist's song, photograph, painting or video in an online forum such as Youtube, Facebook, MySpace, or any of the myriad other, similar sites.

Despite the good intentions of the friends and fans, however, unauthorized copying can significantly impact an artist's career and business by undermining the market for sales of the work.  Since virtually every creative work, once once fixed in some tangible form, is protected by copyright law, such unauthorized copying of a protected work amounts to infringement.

As in other areas of the law (such as matters involving trademarks, rights of publicity, privacy, etc.), it is important when confronted with infringement that the owner of the work in question take meanginful measures to ensure that the infringement is stopped.  Failing to take such action may result in forfeiture of rights.

How to cope with infringement

The doctrine of Laches is based on the maxim that “equity aids the vigilant and not those who procrastinate regarding their rights”; Neglect to assert a right or claim that, together with lapse of time and other circumstances, prejudices an adverse party. Thus, when a party has been guilty of laches in enforcing his right by great delay and lapse of time, this circumstance can  operate to bar  a remedy.  In essence, he who sits on his rights risks losing them.

In addition, statutes of limitations impose strict time limits in which an aggreived party must initiate a lawsuit or be forever barred.

So, how can an artist whose work has been infringed take action?

1.  Cease and Desist Letters.

The traditional approach taken by an artist whose work is infringed is to send the infringer a letter notifying them of the infringement, and demanding that the infringer cease and desist from any further acts of infringement.    Although any party can send  such a letter, most artists prefer to have an entertainment or intellectual-property lawyer prepare and send the cease and desist letter, since  doing so demonstrates that the matter is serious, and that legal action is contemplated if the infringer fails to comply with the letter's demands. Care should be taken in preparing a cease and desist letter, since improper threats, or assertions contained in the letter can later be used as defenses, or to demonstrate an admission which could ultimately hurt the case if brought to court.

2.  DMCA Take-down notices:

When an infringement occurs through an online informations service, action must be taken not only against the user who posts the content, but also against the online service hosting the material.  The proper approach to dealing with the individual user is a Cease and Desist letter, as discussed above.    However dealing with the  online service is a bit more complicated. Under the Digital Millenium Copyright Act (DMCA),  an information service provider is immune from liability for certain kinds of content posted by users, provided it has implemented mechanisms for take-down of offending material, and for coping with repeat-offenders.   The procedure for having the offending material removed from a website involves serving the provider's designated representative with a properly drafted Take-down notice.  Again, there is no requirement that a take-down notice be prepared by a lawyer, the rules are deceptively simple seeming, but meticulous attention must be paid to detail in preparing the notice.  For this reason, many victims of online infringement prefer to have an attorney handle the take-down procedure.  Fortunately, the cost of preparing the notice is relatively small, but unfortunately, is not recoverable from the service provider.

Caveat:  Fair Use – Modern U.S. Copyright Law has codified a doctrine that originated in court-made interpretations of copyright law and the first amendment guarantee of free speech.  This Fair Use Doctrine  allows for limited uses of portions of copyrighted works when the purpose of such use is to advance public discourse, educate or comment on the original work.  At least one recent case involved a YouTube video of a toddler dancing with Prince's “Let's Go Crazy” playing in the background.  Following a takedown notice, the video's creator, (mother of the little dancer) challenged YouTube and and the record company, and the judge agreed that the takedown notice failed to consider fair-use, and was thus improper.

3.  Licensing/permission:

Another, often more constructive method for dealing with an unauthorized copy of a work, is to simply authorize it by granting the copier a license or permission for the use in quesiton. Care should be taken, however, to articulate as specifically as possible, the scope of the authorization, and any limitations or conditions on the licensed use.    Additionally, care should be taken that the license given is not so broad, and open-ended as to have no legal validity.
In the field of trademark law,  a license arrangement where the trademark owner fails to maintain any quality control or supervision in relation to the manufacture and provision of products and services supplied by the licensee is referred to as a “naked license”, and can have an adverse impact on the owner's rights .  Whether this principle applies also to copyright infringements is an open question, but care should be taken in crafting license or permission arrangements.
It is also important that the license agreement actually be an agreement.  It is not enough to simply send an alleged infringer a notice stating that you're  giving them permission they haven't requested.  It is best to ensure that there is some quid pro quo in the transaction, however small.

One increasingly popular approach to licensing of works is  the Creative Commons License mechanism, which allows the author of a work to grant broad permissions for reproduction and distribution of the work, while imposing restrictions on the nature of such use, requiring attribution, and that new works incorporating the copied material also be licensed under the creative commons license mechanism.

Unfortunately, the fair use exception to copyright infringement and the doctrine of laches can be in direct conflict.  A content owner whose work is copied must act to stop the copying, but risks issuing a takedown notice or cease and desist letter against a use that is protected under Fair Use and the First amendment. While I believe that content owners should attempt to open a dialogue with the alleged infringer before issuing such notices, It is incumbent on them, when faced with an unauthorized use, to take action or risk losing important and valuable protections for their intellectual property.

The best advice is that if your work is copied and circulated without permission, you should consult an experienced entertainment and media lawyer.  Failure to take action can result in the loss of important protections and rights.

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