educational

Coping With Copyrights

Gregory A. Piccionelli
Ever since the Justice Department proposed revisions to the federal record-keeping and labeling regulations, my office has been deluged with inquiries from concerned webmasters, content producers, performers, payment processors and others across the broad spectrum of the adult entertainment industry. The concern is warranted, of course.

However, because the industry has recently focused its legal attention almost exclusively upon the likelihood of a coming wave of criminal prosecutions, it is easy to forget that a wave of civil cases are already sweeping the industry. Most frequently, the litigation focuses on intellectual property matters, most particularly, copyright infringement.

Virtually every adult entertainment webmaster is in the business of 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.

Here are a few interesting questions to test your basic understanding of copyrights and their relevance to your online business:

  • Did you know that willful use of someone else’s photographs or videos on your website without authorization could subject you to liability of up to $150,000 per work, and could subject you to payment of attorneys fees, the plaintiff’s and defendant’s, even if you never made any money from the use?
  • Did you know that you could be liable for copyright infringement occurring on a website that you send traffic to or you receive traffic from?
  • Did you know that if you knowingly promote or otherwise participate in the sale of pirated DVDs, such as a pirated version of Red Light District’s "1 Night in Paris," you could be subject to criminal copyright prosecution and/or criminal prosecution under the federal conspiracy or aiding and abetting laws?
  • Did you know that a person obtains a copyright in a creative work the second it is recorded on or into a "tangible medium of expression," such as photographic film, audio tape, a computer hard drive or even a piece of paper?
  • Did you know that both the model and the photographer own the original copyrights in a photograph of the model and that either can exploit the work as joint authors? Did you know that the acquisition of complete ownership of the copyrights to the photograph by a third party would require an assignment by both?
  • Did you know that the assignment of a copyright is invalid unless it is in writing?
  • Did you know that you could obtain a copyright to your website?
  • Did you know that software can be copyrighted?
  • Did you know that an independent contractor hired to create a work subject to the copyright laws, such as the graphic design of your website, owns the copyright to the design unless the contractor executed a proper "work for hire" agreement or a written assignment of rights?
  • Did you know that copyrights are valuable property and that they can even be used as collateral for loans?

No matter how you answered the questions above, it should be clear that copyrights must be taken seriously and they can be a source of great value or great cost. The choice is really up to you. Knowledge is power, indeed, particularly when it comes to legal rights. Therefore, I unequivocally contend that every webmaster should have at least a basic understanding of copyright law.

It is important to note that copyright law is complicated and voluminous. One multi-volume legal treatise in my office exceeds 3,000 pages. There are literally thousands of copyright cases. So, this article should be viewed as only a very basic introduction to copyrights. Moreover, they are being provided to you as an educational resource and are not intended to be, nor should be, construed as legal advice or counseling of any kind. If you are in the online adult entertainment business, your next step should be to contact a qualified copyright lawyer, preferably one with experience in adult entertainment matters. This is particularly true if you are being sued for copyright infringement, or if you are a content producer.

What Are Copyrights?
Copyright laws are a means by which governments foster the growth of learning and culture through the dissemination of information by granting to creators of creative works a monopoly of limited duration in their works. In the United States, this important function was recognized by the founding fathers, and copyrights have been with us since the beginning of the Republic. In fact, the importance of copyrights to the founding fathers is shown by the fact that, along with patent rights, copyrights are the only intellectual property rights specifically authorized by the highest law of the land, our Constitution. Article I Section 8 provides that Congress shall have the power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Copyright laws are, therefore, meant to provide an important inducement to such creators to create as many works of art, literature, music and other "works of authorship" as possible. This noble and beneficial goal is sought, not only by the United States, but by governments literally around the world. Today, more than 200 countries have copyright laws and are also signatories to an extraordinary copyright treaty, the Berne Convention, which protects the rights of copyright owners around the world.

As is the case with other forms of intellectual property (e.g., patents, trademarks, name and likeness rights, etc.), copyright laws are designed to strike a balance between the conflicting public interests of:

• Encouraging creativity by granting valuable exclusive rights to "authors" and other creators of new works; and,

• Providing the public with the greatest possible freedom of expression and access to a broad "marketplace of ideas."

In the United States and most foreign countries, this balance is achieved by copyright law, in part by protecting an author’s particular expression of an idea rather than the idea itself. Because of this, everyone is free to express an idea expressed by another as long as they do not copy the original author’s particular way of expressing it.

The Matter Of Copyright
What kinds of works are subject to copyright laws? In the United States, 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, and includes literary works, music, motion pictures and other audiovisual works, sound recordings, photographs and other pictorial works, graphic works, sculptural works, and architectural works. This means that effectively every image, video clip, music clip, story, banner ad, graphically designed web page on your website, and even the website itself, as an integrated work, is the lawful subject matter of copyrights.

It does not matter that the material contains sexual or other adults-only content. Thankfully, the copyright law does not discriminate or make any such value judgments. In fact, you can copyright just about any recordable expression of an idea as long as it does not constitute a procedure, process, system, method of operation, concept, principal or discovery. These types of idea expression, involving non-artistic and purely useful components, are generally the subject matter of another great branch of intellectual property called utility patents.

Gregory A. Piccionelli of Los Angeles-based Brull Piccionelli Sarno & Braun specializes in Internet law, entertainment law, including adult entertainment matters, and Free Speech issues. Piccionelli is co-author of "The Online Adult Entertainment Webmaster Legal Resource," available at TechLawSeminars.com.

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