Friday, November 06, 2009

Protect yourself. It's cold outside.

It has been a busy, busy two weeks here. Yes, the Yankees won the World Series, defeating my Phillies 4 games to 2. I also did go to Game Four with my father and my sister. Family baseball fun in. . . November. We all wore lots of layers of clothing.

It was cold and chilly with the wind whipping around the upper tiers of Citizens Bank Park. (I drove to Philadelphia for the weekend.) It was a wonderful game, with Phillies third baseman Pedro Feliz hitting a game-tying home run in the bottom of the 8th inning. In the top of the 9th inning, Phillies' pitcher Brad Lidge had the game in hand, had two outs, had two strikes to Johnny Damon, who was able to get on base. Then he stole second. Then he stole third on the exact same play.

It was disheartening, but I went to a World Series game and I went with family and had a lot of fun. It was cold and you had to protect your skin with lots of layers of clothes.


Speaking of protecting yourself, many clients ask me about filing copyrights. I do file copyrights. Remember, when a work falls under copyright law, the creator of the work has a copyright in the work. No lawsuit can be filed without registering the copyright in the work, however. Also remember that damages that can be recovered go down when the copyright is not filed before infringement happens.

As for the filing copyrights, there are two mistakes that many people and businesses make when filing the copyrights themselves:
  1. Filing separate works as collections.
  2. Not understanding who the copyright owner is.
The main issue I find in copyright registrations is that a lot of people file many different works in one copyright registration. This is most common in the photography industry, where it is easy to collect photographs.

The problem? When a copyright represents many different works, then the copyright really represents a collection. Infringement upon a collection is weaker than infringement upon an entire work. So, make sure that you file each work (no matter what medium the work is on - be it canvas, film, or digital).

Another problem is understanding who the copyright owner is. The creator of a work that falls under copyright law is the copyright owner. The only exception to this is when a work-for-hire agreement is made and signed (it MUST be a written agreement). Make sure that the correct owner is listed in the registration (and make sure that the creator is listed, too, but just as a creator).

Copyright questions? Call us at 212-201-5473 or send an e-mail to for more information


I have not been making a big deal of the Shepard Fairey copyright case or the revelations that Fairey himself has changed his story on the witness stand. But his lawyers are still on the case. Permit me to yawn. Ultimately, this case will turn on the work - not testimony from people. Whether or not the original Associated Press photograph was the inspiration for the "Hope" poster that Fairey made is not the issue - the issue is whether the poster is transformative enough.


Google is still fighting to claim the ANDROID trademark.


Yahoo settles a lawsuit that Mary Kay filed for allowing unauthorized Mary Kay resellers to advertise on Yahoo.


Lil' Wayne is sued for copyright infringement. This sounds like it has been said before.

Copyright law questions? Trademark law questions? Call 212-201-5473 to speak to Anthony Verna or send e-mail to for more information.

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Blogger Terry Hart said...

Hi, I was wondering what you meant about infringement on a collection being weaker than infringement on a single work.

In the case law I've seen - and the Copyright Office's own circulars in fact - so long as the author of each individual work is the same, the author may register copyright in a collection of works on a single application. The copyright registration extends to each individual work in the collection.

Hypothetically speaking, the only drawback to doing it this way rather than registering each work separately comes into play if a calculation of statutory damages is required. If the defendant infringed more than one work in the same collection then it is unclear whether statutory damages are available for each work he infringed, or for only one work - the collection.

I have not seen courts address this situation yet, but it seems to me that with such a wide variation of available statutory damages, this potential drawback is almost not even worth considering.

Especially for many photographers, whose expected profit on an individual photo may not even exceed the cost of copyright registration, it would seem that the advantages of being able to register a collection of photos on one application outweigh this unsubstantial drawback.

3:40 PM  

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