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Ten Questions: Intellectual Property, Copyright, and Streaming Media

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The questions surrounding intellectual property are too numerous and varied to be boiled down to a checklist the way we’ve done with other "Ten Questions" articles in this issue. Instead, we sat down with Elliot Zimmerman—a Florida-based entertainment attorney who has represented clients including Aretha Franklin and jazz pianist Ahmad Jamal and others in cases involving copyright and trademarks, and who now specializes in "cyberlaw" legal issues related to the internet—to learn a little bit more about IP issues facing content creators, owners, and publishers.

1. What’s the most important issue related to intellectual property for an online content publisher?
The first issue is who owns the content. The question of ownership is very technical. It’s a jigsaw puzzle. There are copyrights, trademarks, licenses, and all sorts of things that you need to consider first to make sure that you’re nice and safe.

Copyrights protect original works of authorship that are fixed in a tangible medium of expression. Trademark laws speak to what branding and names have become indicative of a particular service or product. In most situations, to work through this you’ll have to examine all the separate elements of what you’re about to stream.

When you’re talking about streaming video, things get especially complicated. You’ve got several separate elements to investigate, including text, art, music, video, photographs, trade and service marks, rights of publicity, and more. For example, if video is going to be synched with music and streamed over the internet, you’ll need a new-media license, a video-sync license, and the rights of publicity releases for those who appear in the file . . . and that’s just for starters.

Then you’ll need to think about copy protection and other demands made by licensees or owners of the product.

2. What’s the difference between an assignment, a work made for hire, and a license?
If you want ownership, you’ll either have to get an assignment or the work will have to be a work made for hire. If your job is to write copy or produce video and you are a salaried employee who works regular hours at your employer’s place of business and your employer withholds taxes and provides you with the tools of your trade, your works are probably made for hire and belong to the employer at creation. An assignment is where the creator of the work sells rights to another. Under U.S. copyright laws, after 35 years, an assignor can make legal moves to regain ownership. That’s not so with a work made for hire.

If you don’t own the content, you need to find out who does! Also, find out what licensing you need for your intended use, and you need to know what it is you’re licensing. Not only the licensor, but the licensee better be sure as to what he’s getting. As a licensee you want to get as much permission from the licensor as possible.

3. Why should I care so much about getting these ownership issues resolved?
It’s something the person should not take lightly, especially since the Copyright Act has such horrible consequences. You can get sued for up to $30,000 for each instance of infringement. It could even be innocent infringement. If you play someone else’s work without permission or license, if you don’t have ownership and someone else does, you’re in trouble whether you did it intentionally or not. That doesn’t mean you’re automatically down $30,000, but even if the owners don’t go for actual damages or profits, they can go for statutory damages, which can be anywhere from $750 to $30,000 per count. If it’s willful, it can go up to $150,000 per count, plus attorney’s fees.

Aside from the civil there are also criminal penalties, including jail time for those people who do certain criminal acts. Once in a while infringing conduct can turn criminal. Pirating is a criminal offense. There are state and federal laws regarding intellectual property. The Copyright Act has criminal penalties. State laws also have criminal penalties.

4. When am I liable for infringement?
Even if you run a blog site and someone uploads copyrighted material to it and you haven’t made certain filings with the U.S. Copyright Office for safe harbor, you’re in trouble. If you’re an online service provider (OSP), and one of your users posts an illegal MP3, and you basically have no knowledge of it, but it’s in a cache and it’s found on your machine, you have exposure to $30,000 that you could have avoided had you first consulted with a learned attorney. Even if you didn't know, you’re liable for innocent infringement, unless you filed for safe harbor. If you knew, it gets worse.

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