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.

Led Zeppelin wins “Stairway to Heaven” copyright case

Via BBC and NPR, a Los Angeles jury found Led Zeppelin did not infringe a copyright with its iconic song “Stairway to Heaven.” While Led Zeppelin won the case (and gets to keep its $562 million+ in royalties), the jury did find that the band had access to prior art (the older song), an element of copyright infringement. After the court victory, Zeppelin band members released a statement to the LA Times: “We are grateful for the jury’s conscientious service and pleased that it has ruled in our favor, putting to rest questions about the origins of ‘Stairway to Heaven’ and confirming what we have known for 45 years … We appreciate our fans’ support, and look forward to putting this legal matter behind us.” This jury verdict for Led Zeppelin comes on the heels of our prior post about the case.

My law firmJohnson Law KC LLC, is experienced counseling individual, corporate, and nonprofit clients on entertainment law, copyright, trademark, and IP litigation issues. We work with authors, musicians, artists, photographers, bloggers, songwriters, filmmakers, 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 entertainment law, copyright, or IP questions, please call (913-707-9220) or email (steve@johnsonlawkc.com) to schedule a free, convenient consultation.

(c) 2016, Stephen M. Johnson, Esq.

Substantial Similarity and Copyright Law

In copyright law, when a person claims someone else stole (or “infringed”) their work, they have to prove substantial similarity between the two works. In Los Angeles, a trial is underway about the Led Zeppelin song, “Stairway to Heaven.” (The band’s Jimmy Page talks about writing the iconic song here.) Since its 1971 release, the band has made well over $562 million in song royalties. But some other musicians claim the song is too similar to an earlier song, “Taurus” (1968), infringing the Spirit band’s prior art. As the parties battle the case out in court, both sides are calling expert witnesses to evaluate how similar the songs are (or aren’t), and whether copyright infringement occurred. What do you think – are the songs too similar, does Stairway infringe on Taurus? Whatever the court’s decision, this case may reverberate through the music and copyright law worlds for some time.

P.S. – The Dark Horse copyright infringement case that we discussed some time ago was dismissed from St Louis court, but no news on whether it was refiled in California, which the St Louis judge suggested was the proper venue.

My law firmJohnson Law KC LLC, is experienced counseling individual, corporate, and nonprofit clients on entertainment law, copyright, trademark, and IP litigation issues. We work with authors, musicians, artists, photographers, bloggers, songwriters, filmmakers, 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 entertainment law, copyright, or IP questions, please call (913-707-9220) or email (steve@johnsonlawkc.com) to schedule a free, convenient consultation.

(c) 2016, Stephen M. Johnson, Esq.

Copyright Attorney’s Fees

Thursday morning the U.S. Supreme Court unanimously decided Kirtsaeng v. John Wiley & Sons, Inc., per Justice Elena Kagan, the latest salvo in a fascinating copyright saga over John Wiley’s textbook business (see Slip, 1-2, where Justice Kagan tells the story of the plaintiff’s international entrepreneurial flair). The textbook company sued Kirtsaeng for copyright infringement, for illegally distributing their textbooks overseas (Copyright Act, §§106(3), 602(a)(1)), but he said the first sale doctrine applied in his defense. The case made  its way through the courts, and several years ago, the U.S. Supreme Court agreed that the first sale doctrine applied to allow the resale of foreign-made or domestically-made books (Slip, 2).

The Copyright Act (§505) allows a court to award attorney’s fees to the winning party in a copyright case. Having won, the plaintiff Mr Kirtsaeng had racked up about $2 million of legal bills, fighting his way through the courts and winning. The Court took up his case again to resolve a lower court split over how to calculate a reasonable attorney’s fee – give substantial weight to objective reasonableness (2nd Cir), look at the totality of circumstances (4th Cir), or simply presuming the winning party got its legal bill paid (5th Cir). The Supreme Court sent the legal bill back to the trial court for review, instructing them to effectively blend the lower court approaches and “giv[e] substantial weight to the reasonableness of Wiley’s litigating position, but also taking into account all other relevant factors” (Slip, 12) and noting “courts must view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals” (Slip, 11).

My law firmJohnson Law KC LLC, is experienced counseling individual, corporate, and nonprofit clients on entertainment law, copyright, trademark, and IP litigation issues. We work with authors, musicians, artists, photographers, bloggers, songwriters, filmmakers, 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 entertainment law, copyright, or IP questions, please call (913-707-9220) or email (steve@johnsonlawkc.com) to schedule a free, convenient consultation.

(c) 2016, Stephen M. Johnson, Esq.