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The 2019 Guide To Avoiding Copyright Infringement

By Eric Misterovich

Protecting Your Company From Copyright Issues in 2019

As 2019 begins to swing into gear, it can be a good idea to review your company’s potential liability for copyright disputes and possible copyright infringement issues in order to avoid big surprises later on. Here are a number of issues to think about this year:

Avoiding Copyright Infringement: Knowing Who Owns What

Knowing who owns what is an important component of avoiding copyright infringement. Under the current US framework, a work automatically receives copyright protection when it is created. The question of “who owns the work” can be simple or complicated depending on the employment relationship, or lack thereof, between the creator and the person paying for the creation.

For example, Jill is an accountant. In her free time, she enjoys taking photographs of her dogs. Jill owns the copyright for every photograph she takes. If her boss asks her to take some photographs of the office, however, these photographs may be considered works for hire because they were created within the scope of Jill’s employment, and therefore may be owned by the firm.

On the other hand, Jack is a professional photographer and videographer. Jill’s accounting firm hires Jack to take photographs of all the employees to put on the firm’s website and to assist in creating a series of YouTube videos advertising the firm’s service. Because Jack may be considered an independent contractor, as opposed to an employee of the firm, if the contract hiring Jack does not specifically lay out whether the photographs and videos are works for hire, Jack may retain ultimate ownership of the works.

One way to avoid potential confusion is to clearly lay out ownership before any work is created. Including language in the employee handbook and any employment contracts you offer can educate and remind your employees of the company’s ownership of copyrighted materials. You can also include language in any vendor contracts clearly specifying ownership of any copyrighted works created by the contractor. This will assist in avoiding confusion down the road.

Additionally, if you are working with a creative team in a non-employment relationship, it is important to have a contract specifically laying out copyright ownership before the work is actually created. Otherwise, you may find that only one person actually owns the work. That person may agree to assign ownership to the rest of the team, but is not obligated to.

Auditing Your Website’s Images to Ensure You Have the Proper Licenses

If you use some form of stock imagery on your website, you should do an audit of all the images, even if you outsource web development to a professional graphic designer. Remember – just because something is available online does not mean that it is available for free.

Placing copyrighted material on your website that you do not have permission to use can lead to being asked by the copyright holder to remove the work via a DMCA takedown notice, or even a copyright infringement lawsuit.

Instead, it is much better to use images whose owners give explicit permission for you to use them, even if you have to pay a fee.

When reviewing your existing images or investing in new ones, you should review the image license to understand the terms. What kind of attribution do you need to include on the image? What limitations are there, if any, on using the website in online or printed marketing materials? Is there a one-time licensing fee, or will you owe additional fees as your website brings in more traffic?

While there are some sites that allow certain images to be used at no cost, using them may still come with terms and conditions. For example, some are available for non-profit or educational uses, but not for commercial uses. It is important to read the fine print before you open your company up to potential liability.

Avoiding Copyright Trolls by Limiting Access to Your Company’s Internet

Finally, if your company offers internet to your employees, customers, or the general public, you may be opening yourself to liability for copyright infringement.

If someone uses a BitTorrent program such as Popcorn Time on their smartphone, tablet, or computer while connected to your internet, you may find yourself on the receiving end of a copyright lawsuit. Copyright trolls are owners of copyrighted material, who files hundreds if not thousands of lawsuits against alleged infringers, but rarely, if ever, litigate these cases. They are able to trace downloads of their material to specific locations through an IP address, on the theory that the person paying the bill for the internet account is either the infringer or knows who the infringer is.

Even if neither you nor your employees downloaded copyrighted material without permission, if the bill is in your name, you can get dragged into these suits while the copyright troll pursues the true infringer.

This type of copyright lawsuits were on the rise in 2018, with a handful of copyright holders filing thousands of suits in order to obtain IP records from your internet service provider. Typically, these copyright holders are looking to settle cases outside of court for thousands of dollars, rather than go through a long and arduous litigation process.

One way to limit your exposure to these types of cases is to limit access to your company’s internet by putting in a strong password on the Wi-Fi and reminding your employees about what is, and is not, appropriate use of company resources. However, other businesses find it essential to have open Wi-Fi for customers. This is increasingly common in restaurants, bars, and coffee shops. These companies may need to spend some time defending themselves in court from these cases, to the extent of demonstrating that it is impossible to find the true infringer.

This article is for informational purposes only and does not contain legal advice. If you have questions regarding copyright protection, copyright infringement, or other intellectual property matters, contact our experienced IP attorneys today with the form on this page, or call us at 855-473-8474.

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