DMCA 101

What’s the DMCA? The Digital Millennium Copyright Act (1998) is part of U.S. copyright law. Most U.S. copyright law dates to 1976. The DMCA deals with copyrights on online materials – websites, blogs, and other digital content.

Online piracy of videos, pictures, and other content is a major problem for content creators and owners. A copyright owner can file a takedown with a photo or video website, but the DMCA puts the burden on the copyright owner to find and take down the pirated content. Under the DMCA, the copyright owner files a takedown request with the photo or video website, and submits evidence (copyright registration numbers or other legal documentation) to the website to prove the copyright owner’s legal ownership. Once the takedown request is received, the website often takes down the copyrighted content.

The DMCA’s safe harbor protects a website from a copyright infringement lawsuit. But if the website keeps the pirated content online, the website can be liable for willful copyright infringement (and maximum damages). The DMCA doesn’t extend to piracy of copyrighted content if it’s protected by fair use.

My law firm is experienced doing take downs of clients’ copyrighted content under the DMCA. We help you protect your content, and can counsel you on monetizing your content.

Steve Johnson is an experienced Kansas and Missouri entertainment law attorney who enjoys working with individuals, companies, and nonprofit organizations to serve their copyright needs.

Call (913-707-9220) or email (steve@johnsonlawkc.com) Steve Johnson, of Johnson Law KC LLC, today to help with all your entertainment law and copyright needs.

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Fair Use 101

What’s fair use? Fair use (§107) is a copyright law doctrine. Fair use has 4 factors:

(1) purpose/character of use

(2) nature of copyrighted work

(3) amount/ proportion of whole work used and

(4) effect of use on potential market for/value of work

Depending on the evidence, content use may be fair use and no damages (and no piracy or copyright infringement) or the content use may be illegal (piracy and copyright infringement) and trigger copyright damages.

My law firm is experienced doing take downs of clients’ copyrighted content under the DMCA. We my firm also can look at the 4 fair use factors and evaluate your case’s facts accordingly. We help you protect your content, and can counsel you on monetizing your content.

Steve Johnson is an experienced Kansas and Missouri entertainment law attorney who enjoys working with individuals, companies, and nonprofit organizations to serve their copyright needs.

Call (913-707-9220) or email (steve@johnsonlawkc.com) Steve Johnson, of Johnson Law KC LLC, today to help with all your entertainment law and copyright needs.

Copyright Litigation 101

If your content is being pirated, how long do you have to sue for damages? Copyright law gives you 3 years to sue. The 3 year deadline starts when the copyright infringement claim “accrues.” U.S. copyright law doesn’t define “accrue,” and the courts are split on its meaning – is it when the piracy’s discovered? When the infringing action occurs? Or some other time?

In 2014, the U.S. Supreme Court said (Petrella v MGM) the favored approach is discovery accrual – when a reasonable copyright owner would have discovered infringement.

The copyright litigation deadline clock re-starts for each infringement (each online view or DVD). And even if an infringer wins on the delay point (you waited too long to file), you can still get money damages, just no injunction.

Steve Johnson is an experienced Kansas and Missouri entertainment law attorney who enjoys working with individuals, companies, and nonprofit organizations to serve their copyright needs.

Call (913-707-9220) or email (steve@johnsonlawkc.com) Steve Johnson, of Johnson Law KC LLC, today to help with all your entertainment law and copyright needs.

Damages 101

What damages can you get if your content is pirated or illegally copied or shared? Copyright law provides various damages (§504): money damages or an injunction (to stop DVD sales/streaming). You can get (1) actual damages (plus the pirate’s additional profits) or (2) statutory damages.

Actual Damages

For actual damages, you must prove the pirate’s gross revenue, then the pirate has the burden of proof to show how much revenue wasn’t from infringement.

Statutory Damages

Statutory damages range from $200 to $150,000 per infringement.

  • $200 = no notice of copyright
  • $750 – $30,000 = statutory damages
  • $150,000 = willful infringement
  • 1 fine for multiple infringements of same material, not per view

Willful infringement §504(c)(2)

Court looks at the pirate’s overhead expenses and the pirate must prove to Court that those expenses are reasonable.

Willful = pirate knows its copying is infringement

  • Actual or constructive knowledge inferred from conduct or proven directly
  • Reckless disregard of copyright owner’s rights + actual knowledge of infringement sufficient
  • History of prior copyright actions can be used

Punitive damages if (1) pirate’s conduct reprehensible, (2) disparity between copyright owner’s harm and award, (3) award vis-à-vis civil penalties in similar cases (up to 4x compensatory damages)

My law firm is experienced doing take downs of clients’ copyrighted content under the DMCA. We help you protect your content, and can counsel you on monetizing your content.

Steve Johnson is an experienced Kansas and Missouri entertainment law attorney who enjoys working with individuals, companies, and nonprofit organizations to serve their copyright needs.

Call (913-707-9220) or email (steve@johnsonlawkc.com) Steve Johnson, of Johnson Law KC LLC, today to help with all your entertainment law and copyright needs.

KC Film Tax Credits

KCUR has this article highlighting a local tax credit for filmmakers. Kansas City grants up to a 10% tax credit for “feature films, commercials, TV shows, short films and music videos” filmed in Kansas City. More details about tax breaks for filming in KC are available here.

My law firmJohnson Law KC LLC, is experienced counseling clients on on entertainment law and copyright issues. If we can serve you with your copyright or entertainment law needs, please call (913-707-9220) or email (steve@johnsonlawkc.com) to schedule a free, convenient consultation. We can also work with your accountant or other advisors to help you navigate local film tax credits and other opportunities to add value to your project.

(c) 2017, Stephen M. Johnson, Esq.

First Amendment Wins in Trademark Law

This morning, the U.S. Supreme Court decided the closely watched Matal v. Tam trademark disparagement case. The Court decided unananimously (8-0, heard before Justice Gorsuch joined the Court) to allow the trademark to be registered. Interestingly, while the Justices all agreed the trademark law’s disparagement clause was unconstitutional (and struck it down), the Justices were divided on why the disparagement clause was unconstitutional (some said free speech violation, some said viewpoint discrimination).

Federal trademark law (called the Lanham Act) grants nationwide protection to marks (logos, phrases, slogans, etc) as continuously “used in commerce” by a person, nonprofit, or business (15 U. S. C. §1051(a)(1)). Part of the trademark application process is getting the mark approved by the U.S. Patent & Trademark Office in Washington, D.C. Most of the approval/vetting process is being sure the mark hasn’t already been claimed or used by someone else in the same context (that it’s not prior art), in a way that would be confusing to the average person or consumer.

One of the criteria, since 1946 when the Lanham Act was born, had been non-disparagement clause: a mark could promote one person or business’ advantages or virtue, but couldn’t (1) “disparage” a “person, living or dead, [an] institution [or business], belief, or national symbol” or (2) “bring them into contempt, or disrepute.” (15 U. S. C. §1052(a)).

Enter the Tam case. A rock band with Asian-American musicians wanted to trademark a name that was a racial/ethnic slur for people of Asian or Asian-American ancestry, even though the band sought to embrace the name as their own and hoped to turn it into a positive image or connotation. The Trademark Office denied the trademark application on disparagement grounds – the name was a racial or ethnic slur, so the band couldn’t trademark it. The band took its case all the way to the Supreme Court, and won. Time will tell how Tam will affect other cases, like the Trademark Office’s cancellation of the Washington Redskins football team’s trademark, or others.

My law firmJohnson Law KC LLC, is experienced counseling individual, corporate, and nonprofit clients on trademark on entertainment law/copyright issues. We work with authors, musicians, artists, photographers, bloggers, songwriters, filmmakers, film owners, and others to provide cutting edge, reliable expertise on IP. We can help you answer these questions with confidence and friendly expertise. If we can serve you with your trademark or entertainment law, questions, please call (913-707-9220) or email (steve@johnsonlawkc.com) to schedule a free, convenient consultation.

(c) 2017, Stephen M. Johnson, Esq.

The Copyright of “I Have a Dream”

Happy Martin Luther King Jr Day! As we pause to reflect on Dr King’s great legacy of promoting racial reconciliation in America, here’s the interesting back story on why you don’t see or hear Dr King’s complete “I Have a Dream” speech online or on TV: it’s copyrighted. We encourage you to join us in reading the text today as we reflect on Dr King’s enduring legacy.

(c) 2017, Stephen M. Johnson, Esq.