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There is an old Chinese proverb that says, "He who knows not, but knows not that he knows not, is a fool. Shun him." Truer words were never spoken. Comtemporary wisdom says, "Ignorance of the law is no excuse for violation of the law." In consideration of these truths, I will try to make the basic tenets of copyright, trademark and patent law as simple as possible so that even a fool can understand them. I will also attempt to clear up common misconceptions and address the exemptions to the law (such as this commentary) that fall under "fair use."
International
society has reached a consensus that creative artists should have
moral and economic control over how and where their work is used.
Copyright law protects the rights of these artists which include filmmakers, composers, authors, fine artists, commercial artists, graphic
designers, web/interactive designers, photographers and others. I was told in art college that
if a juror holds the original in one hand and a copy in another and
believes with 60% or better certainty that the copy is derived from
the original, then there is a legal basis for copyright infringement.
If the author can prove in court that he or she owns the work and can
prove that the defendant has copied it, the plaintiff will recover
attorney's fees, actual damages, statutory damages, or any profits
that were a result of the infringement. The judgment can be affected
by the extent of the infringement and how much proof there is that
the violation was intentional. [For more detailed information you may
want to consult with an intellectual property attorney.]
The author owns the rights
to his/her work whether he or she has it officially registered
or not. The benefit of officially registering intellectual property
with the copyright office (requiring a $30 fee), is simply that it makes it easier to prove
authorship in court. By the way, another pervasive myth is that the
artist can mail the work to himself and use the postmarked, unopened
envelope as proof. NONSENSE. Think about it. An artist can also mail an UNSEALED envelope to him or herself.
It is important to note that only expressions of ideas are protected. The ideas themselves are not copyrightable [neither are drum charts or chord progressions -- only melodies]. An idea has to
be produced in tangible form before it can fall under copyright
protection. Also, commonly used and/or ubiquitous imagery is not
protected. For example, if I take photo of the sky with billowing
clouds, I own the photo itself, but not the license to photograph
clouds. So if someone else takes a photo of clouds that looks like mine, I may not have a valid case against them.
As I write this, there is a story circulating on social media regarding a legal matter between rock musician, Rod Stewart and Bonnie Shiffman, a celebrity photographer. Shiffman was originally hired by Stewart to photograph the back of Stewart's head for his “Storyteller” album which was released in 1989.
ORIGINAL PHOTO (Credit -- Bonnie Shiffman)
A REPLICATE IMAGE OR UNMISTAKABLE COPY?
Shiffman's
lawsuit claims that a current photo being used by Rod Stewart is "a
replicate image, an unmistakable copy" of the original.
According to numerous sources, Stewart's agent, Arnold Stiefel,
offered Shiffman $1,500 for the reuse of the photo. Shiffman refused.
So, Stiefel created a very similar photo without obtaining permission
from Shiffman.
I believe that Shiffmann has a rock-solid case for the “not less than $2.5
million in compensatory and punitive damages.” It may be settled
out of court. Nevertheless, the thing that interests me most is how
many users have responded on social media in support of Rod Stewart.
I have PARAPHRASED some of the comments I have read from supporters of Stewart as follows:
It is only the back of his head and it isn't worth 2.5 million for a
photograph. This should be laughed out of court.
Stewart has worked hard all of his life to achieve his success so he is
justified.
The photographer is preying on Stewart's success.
Stewart's head, hair, money and photo belong to him and he should get to
decide how his photo is used and when.
It is ridiculous to claim that Stewart cannot use the copied photo
simply because it is the same format as the original.
I love Rod Stewart and his music so much and he absolutely has the
right to use his own image as he pleases.
Why would some “stupidly ridiculous person" try to capitalize on someone who started out digging
graves and worked hard to achieve success as the greatest musician of my lifetime?
While some compensation would be in order, $2.5 million is a disgusting
joke for one photo.
Where are privacy laws? It is great for an opportunist to get the photo of
Rod Stewart but they shouldn't be paid for the priviledge.
The photographer is just doing this for the money and I hope she loses
the case. She doesn't deserve a penny.
The photographer is trying to cash in on Stewart's fame and fortune. She
takes photographs. Rod Stewart is a legend.
Now I'm not saying that opinions don't matter. But I will say that the law is
the law and there is legal precedent in this case. In my next blog
entry, I will address some of these somewhat sophomoric, albeit heartfelt comments and how they fall into the
context of intellectual property law. Stay tuned.