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Intellectual Property: 2

Intellectual Property: 2

May 10, 2007
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" Registration of the copyright with the Copyright Office is a prerequisite to filing an infringement lawsuit "

In part one, we began our look at protecting your intellectual property rights. In this conclusion, we'll examine registration of copyrights, trademark enforcement and more:

6 Good Reasons
In the case of copyrights, this means registering the copyright in works subject to the plan with the Copyright Office. There are a number of good reasons to register the copyright in works you want to protect:

  • Registration prior to infringement will entitle the copyright owner to seek statutory damages of up to $150,000 for willful infringement of a registered work.
  • Registration entitles the copyright owner to seek and be awarded attorney's fees from the infringer.
  • Registration establishes public record of copyright claim to help to prove willfulness in infringement suits.
  • Copyright registrations can be recorded with the U.S. Customs Service for protection against the importation of infringing copies.
  • Registration within five years of initial publication will establish prima facie evidence of the validity of the copyright in the work and the facts stated in the registration certificate.
  • Registration of the copyright with the Copyright Office is a prerequisite to filing an infringement lawsuit against an infringer in federal court. So the copyright owner would have to register the copyright anyway if enforcement requires the commencement of federal litigation.

The registration fee for registering the copyright in a work is only $45. Considering all the benefits listed above, registering the copyrights in works is clearly one of the most cost-effective steps in any copyright enforcement plan. Forms for registration with explanations are available at the Copyright Office website at www.copyright.gov.

While the procedure of registering the copyright in a work is relatively simple, it does require a certain amount of accuracy and precision in following the rules associated with the filing. Consequently, many producers prefer to have an attorney to guide them through their first few filings.

Optimizing enforcement of trademark rights in the U.S. similarly requires registration of the mark with the U.S. Patent and Trademark Office.

The third part of an intellectual property rights enforcement plan involves the proactive policing of rights. Essentially, this means finding infringements.

For adult content producers, because of the rampant piracy of their works online, this usually requires some level of monitoring parts of the web and certain peer-to-peer networks for infringements.

Some companies who proactively protect their content perform this job in-house. Others hire an outside entity, such as BayTSP (www.baytsp.com) to spider all or part of the web and associated networks for infringements.

Encoding digitally distributed content with digital watermarks and other digital rights management information can be a very effective way of assisting producers in the task of finding infringements.

Consequently, evaluating and implementing such a rights management regime can also be an important part of a content producer's policing of its rights.

The fourth part of a company's IP enforcement plan involves, a cost/benefit assessment of taking action against one or more specific infringers. This involves an assessment of the type of infringers involved. For example, is the infringer a large company, a small company or an individual?

Does the infringer have any financial resources to pay damages, etc.? It also requires a determination of whether there are any joint or contributory infringers who knowingly benefited from the infringement.

For example, in some circumstances, marketing partners, affiliate programs, merchant processors, and even web hosting companies might be jointly and severally liable for damages, including statutory damages.

The fifth part of a typical intellectual property rights enforcement plan involves the execution of a series of steps to resolve infringements. Usually this involves the issuance of cease and desist notices followed by further actions, up to and including the filing of a law suit, as warranted by the circumstances of case. The specific type and sequence of actions to be taken in response to the detection of an infringement will vary from producer to producer and the type of work(s) involved.

Fortunately, regardless of the specific infringement response plan developed for a content producer, most enforcement actions will not require the filing of a lawsuit or the expenditure of a large amount of legal fees. In fact, it is generally the case that the more proactive a company is in enforcing its rights, the less its works are infringed.

Once a company acquires a reputation for enforcing its rights opportunistic infringers generally prey on less risky targets. For example, Disney is well-known for its low-tolerance of infringement of their works. As a result Disney content and marks are much less infringed than those of comparable entertainment companies.

In the adult space, Playboy and Digital Playground similarly have reputations for proactive enforcement of their intellectual property.

Proactive Enforcement
As an intellectual property rights attorney representing a substantial number of adult content producers, I can tell you that the typical initial reaction to the idea of expending any funds to protect and enforce intellectual property is that it will cost too much money.

But after discussing the real potential costs and benefits of instituting an intellectual property rights enforcement plan, almost every producer I have spoken to has adopted some form of intellectual property rights protection program.

I am proud to say that many of my clients have been pleasantly surprised that the costs of implementing an appropriate Intellectual Property rights enforcement plan has been less than what they originally expected before they learned about their options.

Industry Action
Unfortunately, the part of the content glut attributable to the availability of pristine pirated copies of producers' content will continue until there is a substantial change in attitude towards infringers by the industry as a whole.

Consequently, I believe that the adult entertainment industry would benefit substantially from an industry-wide intellectual property protection summit to commence discussions about how content providers and reputable users of the content can best address the piracy problem. I have proposed such a summit to the Free Speech Coalition. It is my fervent hope that it will become a reality soon.

Until then, the adult content piracy war must be fought producer-by- producer and infringer-by-infringer. The hour is late, for sure, but the war is not yet lost.

Nevertheless, dire consequences lie ahead for the industry unless there is a change in attitude regarding producers' protection of their intellectual property rights. So, to all the adult content producers reading this who have not yet become more proactive protecting their rights, I leave you with this: Its your property. It's the digital age.

The choice is clear. You can protect your intellectual property, or you can lose it. It's up to you.

Gregory A. Piccionelli specializes in Internet law; entertainment law, including adult entertainment matters; intellectual property law; and free speech issues. He is a licensed patent attorney admitted to practice before the U.S. Patent and Trademark Office. He can be reached at Piccionelli & Sarno, 1925 Century Park East, Suite 2350, Los Angeles, Calif., 90067, or by phone at (310) 553-3375


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