U.S. Supreme Court Rules Copyright Owners Must Wait On Registration Before Filing Against Infringers

Walker, JeremyBy Jeremy T. Walker

In its March 4, 2019, opinion in Fourth Estate Public Benefit Corporation v. Wall-Street.com, the United States Supreme Court unanimously ruled that copyright owners must wait for copyright registration before pursuing lawsuits against accused infringers.  Under the Copyright Act of 1976, copyright protection attaches to “original works of authorship,” such as literary, musical or dramatic works as soon as they are fixed in any tangible medium of expression.  Thus, for example, once a novelist prepares a handwritten draft of her work, she immediately gains exclusive copyrights to that work.

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Know the Law: Who Owns Intellectual Property Created by Employees?

By Scott C. Rand

Q: Who owns intellectual property created by employees? 

A: It is widely assumed that when someone is hired to create a work product, intellectual property rights will be owned by the hiring party.

However, that is not always the case. If there is a written agreement, the details of intellectual property ownership are often spelled out.

Written agreements addressing intellectual property ownership are common, particularly where the employee is hired in a creative capacity. Sometimes, such agreements will take the form of an intellectual property assignment agreement.

In other cases, there may be provisions governing intellectual property ownership within a larger employment agreement.

To read my full article that was published in the Union Leader, please click here.

Is Graffiti Protected by Copyright?

By Catherine S. Yao

One of the latest battles over the rights to “unlawful” street art comes from fast fashion brand H&M, over marketing photographs that capture the artwork of graffiti artist Jason “Revok” Williams.  Following a demand from Williams that H&M immediately cease use of the photographs, the clothing company filed suit, asserting that Williams’ work in question was not entitled to copyright protection because the work was “unauthorized and constituted vandalism.”

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Copyright Office Releases New Rule Governing Designation of Agent

By Scott C. Rand

The U.S. Copyright Office recently announced a final rule changing the registration requirements for online service providers seeking to avail themselves of the “safe harbor” under the Digital Millennium Copyright Act (“DMCA”).  Under the DMCA, online service providers that store or post content from users can shield itself against claims of copyright infringement provided certain eligibility requirements are met.

To be eligible under the safe harbor from copyright infringement, online service providers must designate an agent to receive notifications of copyright infringement.  Previously, the Copyright Office maintained an online directory of scanned copies of agent designation filings.  Effective December 1, 2016, designation of agent filings must be made using the Copyright Office’s new electronic system.

This requirement also applies to any online service provider that has previously designated an agent under the old system.  Any online service provider that wishes to maintain a designation filed under the old system is required to re-designate their agents using the new electronic system by December 31, 2017.  Designations that are not re-registered by December 31, 2017 will expire.

Another change under the new rule is that agent designations will expire every three years.  Thus, periodic renewals will be required for an online service provider to maintain safe harbor protection.  Under the new system, agent designation fees have been reduced from $105 to $6.

The ABCs of IP

By Catherine S. Yao

Anyone from individuals to companies of all sizes may have a range of intellectual property (“IP”) considerations.  Even where you do not specifically intend to create intellectual property, you and/or your company may have protectable rights or interests to consider.  You should also be wary of the possibility that you may be using and even unintentionally infringing the intellectual property of others.  From trademarks to copyrights to patents to trade secrets, it is important to understand each distinct category of intellectual property as well as the respective protections and limitations that surround them.

Therefore, the goal here is to provide a general baseline of understanding of the different types of intellectual property and help you to begin to identify and understand your property as well as the relevant rights, protections, and risks.  Subsequently, you will likely find it worthwhile to further explore certain categories in detail.

To read the full article that was published in the NH High Tech Council’s newsletter, please click here.

Know the Law: Copyright Infringement or Legal Fair Use?

By Jeremy T. Walker

Q.  My company subscribes to various technical journals. We often copy pertinent articles and distribute copies to our employees for their reference. Could we be exposing ourselves to copyright infringement liability?

A.  Possibly. The issue is one that implicates the “Fair Use” Doctrine of Copyright Law. A copyright is the federal grant of exclusive legal rights for original works of authorship, such as books, articles, songs, and computer programs. A copyright owner has certain exclusive rights, including the rights to copy and distribute the work. A violation of any of these rights constitutes copyright infringement. Penalties for copyright infringement can be severe, with statutory damages of up to $150,000 per infringement for willful infringement.

To read my full article that was published in the Union Leader, please click here.

Know the Law: Copyright Protection

By Jeremy T. Walker

Q.  I am a freelance writer, and I understand I automatically have copyright protection for works that I author. Do I still need to register my works with the United States Copyright Office?

A.  The short answer is no, you do not need to register to have copyright protection, but in most cases, you should register your works for the significant benefits to which registration entitles you.

To read my full article that was published in the Union Leader, please click here.