Copyright Basics: 1

Gregory A. Piccionelli
Throughout the summer, the adult entertainment business and its attorneys have been understandably focused on a number of criminal laws directly targeting the industry.

For some, all the scary legal news has been a bit overwhelming. Consequently, for the first time in several months, this column is not going to focus on a criminal law matter. Instead, I will focus on an area of the law that protects the great creativity that permeates every aspect of the adult entertainment business: copyrights.

Perhaps my decision not to write about yet another law designed by the cultural extremists to scare you out of the business was motivated by a desire to discuss a good law for a change - one designed to reward your creativity and to make you money, not take it away. Perhaps my decision also was influenced by the fact that I just got back from a week at Burning Man, and it is difficult not to think about the blessings of human freedom and uncensored creativity.

Regardless of the exact reason, experience has taught me that every now and then it is important for everyone in this business to remember that the ever-growing adult entertainment industry provides a legal and much desired product to more than a 100 million satisfied adult consumers around the world. It also is important to remember that the industry's works are protected, not only as free speech in the United States, Europe and elsewhere, but also as valuable property under the copyright laws of nearly every civilized country in the world.

As such, there are a few things about copyrights that every adult entertainment entrepreneur should know, to build wealth and to avoid copyright litigation.

Copyrights, Property
Ownership of copyrights, like ownership of rights in real estate, constitutes ownership of property rights. Only in the case of copyrights, the property is intangible, and the rights are called intellectual property rights. But you should not think less of these intangible rights, for they are property rights conferring on the owner virtually all the property rights of an owner of real property (e.g. land, homes, commercial real estate, etc.) or personal property (e.g. cars, boats, computers, etc.). For example, the exclusive owner of the copyright in a work can sell the work, rent or license the use of the work or even use the work as security for a loan. Similarly, wrongful use of a work subject to the copyright laws is not unlike the theft of another person's car, or the trespassing on the land of another. Only in the case of copyrights, wrongful use is called infringement.

Section 102 of the Copyright Act provides that copyrights exist "in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device." This definition covers virtually the entire spectrum of human artistic expression. This means that effectively, every nude photograph, every explicit video, every adult website, and every video clip, music clip, gallery, banner ad, story and individual web page in each adult website is the lawful subject matter of copyrights. It does not matter that the material might contain sexual or other adults-only content.

Thankfully, the copyright law does not discriminate or make any such value judgments.

Consequently, virtually everyone in the adult entertainment business is creating and/or distributing content that is subject to copyright laws. This means that nearly everyone in the business has a stake in protecting and enforcing their own copyrights and in avoiding costly litigation to answer for the infringement of the copyrights of others. In fact, if the past is an indication of the future, a typical adult entertainment company is much more likely to either be sued for copyright infringement or to have its copyrights infringed than it is to be prosecuted for violation of the obscenity or 2257 laws.

Therefore, there are a few copyright basics that every adult entertainment businessperson should know.

The Rights
Copyright law in the United States provides six separate rights to copyright owners:

1. The exclusive right to reproduce the copyrighted work;

2. The exclusive right to prepare derivative works based upon the copyrighted work;

3. The exclusive right to distribute copies of the copyrighted work to the public;

4. The exclusive right to publicly perform certain types of copyrighted works (such as audiovisual works, including video clips);

5. The exclusive right to publicly perform sound recordings by digital audio transmission; and,

6. The exclusive right to publicly display the copyrighted work.

In part two, we'll examine copyright enforcement, statutory damages and more.

Gregory A. Piccionelli, Esq. is a senior member of Piccionelli & Sarno, one of the world's most experienced adult entertainment law firms, additionally specializing in intellectual property, Internet and traditional media matters. He can be reached at (310) 553-3375.

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