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© 2009-2017 Dana H. Shultz, Attorney at Law

Creativity and Copyright

Copyright Office logo fo Dana Shultz post about creativity and copyrightCreativity is important socially and aesthetically. It also is required for a work to be copyrightable.

The Compendium of U.S. Copyright Office Practices is the administrative manual of the Register of Copyrights. The Compendium concerns Title 17 of the United States Code and Chapter 37 of the Code of Federal Regulations. (more…)

DMCA Designated Agent List Going Online

Logo of US Copyright Office, which announced that its DMCA designated agent paper filings will transition to an online systemThe U.S. Copyright Office maintains designated agent records under the Digital Millennium Copyright Act (DMCA). The Office recently announced that will be moving from paper to an online system.

DMCA Background

The DMCA protects online service providers against liability for user-provided content that infringes third parties’ copyrights. (Please see Terms of Use and the Digital Millennium Copyright Act (DMCA) .) However, there are several requirements for that protection to exist. (more…)

What is a DMCA Counter Notification?

Screen shot from YouTube tutorial re filing a DMCA counter notification

Screen shot from YouTube counter notification tutorial

In Terms of Use and the Digital Millennium Copyright Act (DMCA), I discussed DMCA provisions pertaining to takedown notices. This post discusses how an online service provider should respond to a takedown notice and the role of the counter notification.

17 U.S.C. Section 512(c)(1)(C) states that for a provider to be protected by the DMCA, it must respond to a valid takedown notice by “respond[ing] expeditiously to remove, or disable access to, the material that is claimed to be infringing….” (more…)

Consider Fair Use Before Sending DMCA Takedown Notice

Logo for YouTube, which was involved in a case illustrating why one must consider fair use before sending a DMCA takedown noticeThis post is based on a recent federal appellate case, Lenz v. Universal Music. That case held that one must consider fair use as a possible defense for an online service provider before sending a takedown notice under the Digital Millennium Copyright Act (DMCA).

DMCA Background

I provided an overview of the DMCA in Terms of Use and the Digital Millennium Copyright Act (DMCA). Quoting a portion of that post: (more…)

“Happy Birthday” May Be in the Public Domain, After All

Photo of lit candles on a cake that spell "Happy Birthday"You probably have sung Happy Birthday [to You]” countless times. This post is about a company that has been collecting royalties from that song and the possibility that those royalties soon may stop.

In 1893, sisters Mildred Jane Hill and Patty Smith Hill published a collection of children’s songs. One of the songs – with the tune that we now know for “Happy Birthday to You” – was “Good Morning to All”.

Good morning to you,
Good morning to you,
Good morning, dear children,
Good morning to all.

While no one knows for sure who wrote the “Happy Birthday” lyrics, their first known publication was in 1912. (more…)

How to Perfect an Intellectual Property Security Interest

COpyright Office Document Cover Sheet - can be used to record an intellectual property security interest

Copyright Office Document Cover Sheet

Last week I explained what a security interest is and how it can be perfected, i.e., made effective against third parties. (See What is a Security Interest, and Why Should I Care?) This post discusses how to perfect an intellectual property security interest.

To recap, a security interest is an interest in an asset (the “collateral”) intended to secure performance of an obligation. Typically, that obligation is payment of a debt. Perfection typically consists of filing, with one of more secretaries of state, documents that identify the debtor, the creditor and the collateral. (more…)

Plagiarism and Copyright Infringement – Two Sides of the Same Coin

Logo for Quora, where Dana Shultz answered a question about plagiarismThis post compares plagiarism and copyright infringement. It is prompted by a Quora question that I answered several months ago. (See Have your ideas or works ever been plagiarized? What happened?)

Plagiarism Defined

Plagiarism is the wrongful appropriate on another’s work and presenting it as one’s own. One typically thinks of plagiarism occurring in academia or journalism. However, as discussed below, it can occur in other professions, too.

Copyright Infringement Defined

The holder of the copyright in a work has certain exclusive rights with respect to that work. These include (as applicable) the rights to reproduce, distribute, publicly perform, publicly display, and make derivative works of the work. Copyright infringement is use of a work, without permission of the copyright holder, that infringes on one of those exclusive rights.

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Is a Copyright Notice with Multiple Years Legitimate?

Circle-C symbol representing a copyright notice with multiple yearsWe all have seen a typical copyright notice (e.g., “Copyright 2013 Anyhow, Inc.”) countless times. However, every once in a while, someone will see a copyright notice with multiple years (e.g., “2010-2013”) and will wonder whether it is legitimate.

As is explained in Copyright Protection in One Easy Lesson, 17 USC Section 401 states that a copyright notice must contain three elements.

  1. The symbol © (the letter C in a circle), the word “Copyright”, or the abbreviation “Copr.”
  2. The year of first publication.
  3. The name of the copyright owner.

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The First Sale Doctrine: If I Own It, I Can Sell It

Green traffic light - symbol of first sale doctrine providing go-ahead, defense against IP infringement claim

Copyright and trademark owners typically like to exercise their legal rights as broadly as possible. There is however, a well-known limit to those rights called the “first sale doctrine“.

Actually, they are two separate but similar doctrines. One pertains to copyrights, the other to trademarks:

  • Copyrights17 USC Section 109(a) states, with certain exceptions, that the owner of a lawfully-made copy of a work may sell or dispose of the work. Consent of the copyright owner is not required. So, for example, if you legitimately possess a book or a CD, you may sell it or give it to someone else or throw it into a trash bin.
  • Trademarks – The trademark first sale doctrine is a product of case law rather than statute. In Sebastian International, Inc. v. Longs Drug Stores Corporation, the United States Court of Appeals for the Ninth Circuit wrote: “[W]ith certain well-defined exceptions, the right of a producer to control distribution of its trademarked product does not extend beyond the first sale of the product. Resale by the first purchaser of the original article under the producer’s trademark is neither trademark infringement nor unfair competition.” The exceptions include, for example, stolen or counterfeit goods or goods that have avoided the producer’s quality control systems.

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Who Owns My Text Messages?

Quora logo

This post is adapted from the answer that I provided to a Quora question, “Who owns our text messages?”

To start, I wondered what it means to “own” a text message. Black’s Law Dictionary provides such definitions as “have good legal title”, “hold as property” and “possess”. I don’t think the questioner had these in mind, so I think it is correct to focus on ownership of any copyright that may subsist in text messages.

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