Matthew B. Harrison
Senior Partner
Harrison Strategies

It is important to know more about intellectual property law than just enough to avoid litigation. Disputes involving intellectual property aren’t always played out civilly within the established legal system. Brawls are erupting in the Wild West of social networking, where threats of litigation don’t have much standing and unconventional is the nature of attacks.

As described in a previous article (A Lesson from the NJ101.5 Case.), a radio station got hit with a copyright infringement lawsuit because it used copyright protected images, stripped the identifying information of the photographer from the image, and posted them on its website inviting listeners to download and alter the images.

The station argued that its usage of the image was in the capacity of “news reporting” — a term which appears in the Copyright Act’s non-exhaustive list of potential purposes of fair use (thereby excusing their behavior from infringement liability). While “news reporting” is in fact a justification for copyright infringement – most cases in which news reporting is argued as a fair use defense fail because it is often misapplied – such as in this instance. The Court disagreed with the assertion that the radio station’s usage was news, ruling that news organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.

This was a major blow to the faulty assumption relied upon by most news outlets – that any use of material not owned by the station is automatically considered to be fair use and therefore excusable. The court padded the effects of this decision by relying on the fact that the station’s usage was alleged to be commercial in nature and the station did not refute this allegation; meaning that if the usage is commercial (by proof or omission of opposition) fair use will not be an accepted defense to infringement.

What does this mean to radio station owners and licensees? It subjects them to potential liability for copyright infringement, regardless of their knowledge or intent, should they use material that is not owned or licensed to them for such use. Or in other words – the fair use exception is not universally applied to radio stations just because they claim the usage is news. However, unlike in the previous scenario, it isn’t always litigation about which a station, host, or network should be concerned. Sometimes negative publicity can be worse.

In a recent case, a Denver country music station allegedly took 21 concert photos from a competing radio station’s Facebook page and used it on its own page without permission from the competing station or the photographer. Despite alleging all of the necessary elements to copyright infringement, the photographer is not in a position to initiate a copyright infringement lawsuit. So instead, he’s taken his fight to the “streets” of social networking and it seems to be working.

Scott D. Smith, a professional Colorado photographer, took photographs at a Jason Aldean concert. As per an ongoing seven-year arrangement, Smith got credentials to the concert from the radio station, and in exchange gave these photos to KYGO-FM to put on its website and Facebook pages, while personally maintaining ownership of the copyright to the images. This is not an uncommon arrangement for radio stations to make such trades with professional photographers for credentials, advertising, and semi-exclusive usage rights while the photographer maintains the copyright for the images. Most radio stations strapped for cash these days do not have it within their budgets to spend actual money on photography.

Although copyright attaches to a particular work upon its fixation in a tangible media (a tape, a CD, a file, etc.), one cannot actually sue another party for copyright infringement unless the owner registers the work with the Copyright Office. One can always register the copyright just prior to suing, however there is a major advantage to registering the copyright within three months from the date of first publication, or at least prior to the date of infringement: The ability to collect statutory damages.

Statutory damages are prescribed amounts that a judge can determine the value of each infringement to be without the owner having to prove any actual damages.

If a copyright is not registered within three months of initial publication, or before the date of the infringement, in this case a photographer would only be eligible for actual damages –– which are difficult to prove and may only be nominal in amount.

Under the theory of statutory damages, assuming that the owner of the work has registered the copyright with the copyright office prior to infringement, if the court finds that as long as the infringement was not committed willfully, the penalty per instance of infringement will be between $750 and $30,000. However, if the court determines that the infringement was committed willfully, the court may increase the award of statutory damages to a sum of not more than $150,000 per instance of infringement. This is the source of the big money from copyright infringement litigation. Additionally, the infringing party also pays for attorney fees and court costs when infringement is willful. This is to inspire attorneys to represent starving artists as clients when their rights have been trampled – even though their client cannot pay for services in advance of settlement or verdict.

Ultimately, this Denver photographer did not register the images for copyright protection before the infringement occurred. This means that he is not eligible for statutory damages per instance of infringement, and all attorneys’ fees in the collection of these damages. This has made his finding an attorney who will take this particular matter on contingency nearly impossible — as the actual damages wouldn’t be enough to warrant an attorney taking a matter unless he was retained on an hourly basis — as opposed to a contingency basis.

This is another example of the importance of registering one’s creative works for copyright protection. Whether it’s one show or a catalogue of shows, the owner of the work should register it for copyright protection. All of the necessary forms and submission of file information are available at www.copyright.org.

While Smith, the photographer in the case cited above, has a legal recourse, for whatever reason, he hasn’t proceeded as such at this time. Instead, he took matters into his own hands and contacted the station manager on the phone to voice his complaint. However, Smith says it did not rectify the situation.

According to Smith, the station manager apologized, told him the image would be taken down, and offered him free advertising as compensation. This was a good move on the part of the station manager to rectify this obvious problem.

Smith rejected this offer based upon the premise that he didn’t want the other station, KYGO-FM, with which he had a seven-year working relationship to think that he was supporting their competition by advertising with them. Instead, he requested what he considered fair value for the use of the images — between $200 and $1,000 per image totaling around $10,500 in damages. Why he wasn’t offered the ability to resell the advertising is outside my scope of knowledge, however this could have been a probable solution.

In copyright infringement litigation that doesn’t involve registration prior to the infringing behavior, it is necessary that the injured party prove the amount of actual damages (and any profits) suffered by means of the infringement. This is a very difficult task, in almost all cases.

For Mr. Smith, his arrangement with the original station was not monetary in nature. It certainly had monetary value, but did not literally involve actual dollars exchanging hands. So even though, Mr. Smith has been published by national magazines and often licenses these types of images to various clients for these prices, it would be difficult – if not impossible – to prove a realistic amount of actual damages that would inspire an attorney to take this case on contingency (for a percentage of the proceeds).

Of course, if the copyright is registered prior to infringement, the copyright statute presumes a larger amount of damages, and also includes that the infringing party will cover attorneys fees.

For whatever reason, the radio station determined that it had no responsibility to compensate him and they rejected his offer of $10,500.

While I can speculate as to what their motivation for arguing this would be, Jeff Wilks, CEO of Wilks Broadcasting, the company that owns the radio station accused of allegedly infringing the photographer’s copyright, said in a previously published article that they did not know the images were protected by copyright, and that once they were informed of the infringement, the images were removed. Unless a photographer proves otherwise, there is not an assumption of actual damage unless it can be proved that there was malicious intent.

Smith alleges that his copyright was stripped from the allegedly infringed upon photos, however it isn’t that clear. Upon my own investigation, it became apparent that the copyright notice was never attached directly to the photographs, but instead were placed as captions next to each photograph as they appeared on Facebook. The act of saving the photos separated the photos from the copyrighted images thereby only strengthening the station’s argument that they did not intend on separating the copyright images directly or maliciously.

Section 1202 of the Copyright Act makes it illegal for someone to remove “copyright management information” from a photo to disguise the infringement when used. It originally was only applicable to digital images with the copyright management information either embedded within the file or written upon the image displayed in the file. However, it has recently been interpreted as applying to print photos. The fines start at $2,500 and go to $25,000 in addition to attorneys’ fees and any damages for the infringement.

A claim under this section of the Copyright Act, while seeming appropriate, will probably not be successful because the photographer would have to prove that the radio station willfully stripped the copyright information from the photo, and considering that it is stripped automatically during the saving process – willful stripping is a difficult argument to make.

Under the old paradigm, the fact that Smith has rights but doesn’t want to pursue them on his own dime, the radio station would be free from litigation, thereby furthering the belief that any usage is fair usage. However, Smith doesn’t seem to be going away.

Instead of hiring an attorney and pursing the station legally on his own dime, Smith has started to generate negative publicity for the station in an attempt to shame them into apologizing for allegedly stealing his property and paying him for what he alleges to be rightfully his. Photography blogs and the twittersphere are buzzing with this story and it’s gaining momentum. Smith has become a figurehead for photographers who had their rights regularly infringed upon yet were unable to continue with legal remedies because they did not register the copyright prior to the infringement.

Smith explained that he took his claim to the listeners and advertisers of the station, sharing the details of his story, and further alleged that some of them had withdrawn financial support of the station. Smith further claimed that the station had acknowledged that his contacting advertisers was interfering with their contracts and that such behavior potentially opens him to liability of his own.

A request for comment from Wilks Broadcasting went unanswered.

I have written in previous articles that if artists don’t give value to work they put online, either by charging for access or making licenses available for purchase, they cannot argue that there were actual damages (lost income) when the content is used without permission.

This situation could sound a bit like extortion, fueled by the hostility of others who also don’t have much of a legal leg to stand on due to lack of merit or financial resources. However, Smith’s argument claims that he suffered actual damages. He licenses his images for the amount of money that he is seeking from the station in damages. While the radio station probably wouldn’t have purchased the right to use the images (and therefore would not be the direct cause of lost sales), if Smith could prove that his revenue is derived mostly from photo licenses, and that their actions injured his agreement with the original radio station; an agreement that has value, he may have a stronger case than the station realizes. Ultimately, it would be up to a judge to determine with broad discretion.

Regardless of how this particular situation resolves itself, there are two takeaway lessons to be learned from this scenario:

First, creative professionals need to register their intellectual property for copyright protection. It doesn’t matter the form of the media – audio, video or text. If registered property is protected prior to infringement occurring, they will be able to obtain legal assistance on contingency, as the damages will be prescribed by statute as will the payment of all attorneys’ fees by the infringing party.

Second, should someone claim that a radio station’s or broadcaster’s actions infringed upon their copyright, they should remove all of the alleged infringing content until they can clarify the details of the scenario. Litigation shouldn’t be the only concern as negative publicity is just as real and easily spread by the internet.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

SPRINGFIELD, Mass. –– We are in the early stages of a significant shift in the way radio station owners/operators will be managing and paying for content creation. It is becoming increasingly important for radio talent to take stock of their current business relationship with their employers and consider these changes when mapping out future plans.

The shift coming to radio will be similar to what happened in the motion picture industry when the “studio system” in which actors were employed staff members of film factories such as MGM evolved into a model in which they became independent players contracted by production companies on a per-project basis.

The root of this change grows out of the separation of the “radio station” into two very different businesses which, for many decades, were considered one and the same –– radio station as a licensed property and radio station as a production company. The growth of the role played by the internet in the distribution of terrestrial radio station programming is exposing and speeding up the distinction between these two concepts.

Under the fading system, being a radio talent almost always equates to being an employee of a radio station. In exchange for providing their on-air verbal service, a talent receives a salary, benefits and occasionally additional compensation based upon marketing opportunities.

Things began changing in the era of syndication. Some hosts worked for “outside” production companies instead of for the stations directly. Others took the gamble and became whole or partial owners of their own distribution vehicles.

In this next phase of evolution, with the less expensive cost of entry (such as broadcasting on the internet), talent themselves are increasingly becoming their own production companies. Thus begins a necessary shift in one’s thinking from talent being an employee to thinking of talent as an independent contractor.

In a traditional employment agreement the employer retains the intellectual property rights. It’s why one is being paid a “salary” –– the employer has the right to financially exploit the intellectual property manufactured by the employee. In an independent contractor relationship, intellectual property ownership needs to be specifically designated otherwise so it remains with the talent. A paragraph can make the difference when determining who controls distribution and revenue on the web. I realize it’s not a primary concern for most now as the amount of money being made from internet distribution is less than the amount of money being made by salary and or profit sharing opportunities. However, this will change; probably sooner than we could imagine.

Employment relationships will still exist but they may not be with traditional media distribution companies. The need for quality programming increases as our society desires constant connectivity to media. It goes beyond advances in technology such as creating content for the multi-thousand channel radio currently available as an in-dash accessory. It also includes venues adding media programming that previously didn’t have any. The Los Angeles Times reported on October 17 that McDonalds will be starting its own in-store network including programming such as local school sports, movie previews and human interest stories in high definition. The potential of non-traditional radio platforms serving as venues for talk media content is limitless!

In this evolving media landscape talent needs to think beyond the traditional paradigm of being an employee to a radio station because it might not be that long from now that a radio station will be one of the last places one would look to get a radio job.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com

SPRINGFIELD, Mass. –– In a recent article, Michael Harrison predicted that Intellectual Property Law would dominate talk radio’s legal concerns in the era that is unfolding. (It is filed at www.talkers.com under Michael Harrison and is titled “The Ticking of the Clock.”)

As talk programming evolves into new means of digital distribution through advances in technology, so does our need to understand intellectual property. While evolutionary, the nature of the rights themselves –– to control and exploit the products of one’s creativity and innovation –– remains consistent, the manner by which they are expressed and exchanged is constantly attempting to adapt to advances in technology.

The invention of, in turn, the printing press, the phonograph, radio and television broadcasting, cable, transmission from satellite, VCRs, CDs, DVDs, and now the internet has affected both the form and the substance in the interpretation of intellectual property rights.

Intellectual property has gained importance in this digital environment as, increasingly, business assets are reflected in intellectual as opposed to physical property. No longer do radio stations have rows upon rows of records with each show going out into the ether; content is digital, it is archived, and it is easily available to the consumer by means of the internet.

Between the vast availability of intellectual property on the internet, the ease of copying and distributing said material, and the relative anonymity afforded these transactions, difficult issues rise to the surface. Key among these challenges is the expectation among many users that information and intellectual property sourced or downloaded from the internet should be free of charge. If it was free on the airwaves, why isn’t it free on the internet?

Marketability is always an issue. While surveys have shown that consumers are gradually becoming more willing to pay for online content, the numbers also show that consumers are not willing to pay for content that they currently get or recently got for free. Radio, by means of the internet, provides access to thousands of global radio broadcasts both in real time, and on time shift delay. The people who find the balance between free services with advertising versus an ad-free premium version will find the revenue.

With so much digital content, there are many marketing considerations to make when presenting this material on the internet. The first is to make sure that ownership and control are established and that the intellectual property is protected.

Another trend illuminated in the article by Michael Harrison that applies to the importance of intellectual property is that of talk show hosts originating their shows from remote locations (homes, offices, etc.) other than the traditional radio station studio. When shows no longer originate from the station’s studios but from studios owned and operated by the hosts themselves, and the hosts increasingly act as independent contractors as opposed to employees (yet another trend), ownership of the content can come into question. Those that demonstrate an understanding about the type of property that exists and how said property can be marketed will profit when these things are ironed out in contracts or agreements.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

Rapper 50 Cent has another notch in his court battle belt as a federal judge in Newark dismissed an infringement allegation against both himself and his record label, G-Unit.

The plaintiff, author Shadrach Winstead, claimed the rapper plagiarized his book, The Preacher’s Son – But the Streets Have Turned Me Into a Gangster, directly ripping off elements for 50 Cent’s 2009 movie and album of the same name, Before I Self Destruct.

According to 50 Cent’s legal team, the judge tossed the case after determining that the only genuine similarities between the works were a main character that came up on the mean streets of Newark. Phrases that were arguably points of contention were deemed common and not infringement worthy.

…

Matthew David Howard Smith, 23, of Raleigh, North Carolina, pleaded guilty in Virginia federal court for copyright infringement. Upon sentencing (December 16th, 2011) he faces up to five years in prison for each count.

According to court documents, Smith was a founder of NinjaVideo, which operated from February 2008 until it was shut down by law enforcement in June 2010.

The site enabled visitors to illegally download movies and television programs still in theaters or that had yet to be released.

Users were asked to make donations to the site, which provided access to private forums that contained, more material for download. Officials said the operators allegedly collected more than $500,000 during the website’s two-and-a-half years of operation.

SPRINGFIELD, Mass. –– Good talk radio hosts draw upon multiple sources for material. News, media, pop culture and their own lives and interests are standard sources for talking points. In today’s digital world two pressing legal questions should be on your mind:

1) How difficult is it to infringe upon someone’s copyright when borrowing a concept, the goodwill, or even actual pieces from someone else’s work?

2) How difficult is it to protect your own work from having others use too much?
Copyright protection is only available for the expression of ideas and not the ideas themselves. This is known as the idea/expression dichotomy.

The “idea” is to, say, do a show on conservative political issues. The idea, furthermore, is to spin (or “position”) an issue in a particular way as to highlight a thought-provoking point. The protectable “expression” is the recording of the segment in which you make the point. While you may have been the first person to make such a point, only your exact expression is protected and other –– perhaps not as talented –– hosts can run with the idea their own way as they see fit.

The purpose for this distinction is to balance the First Amendment goals of free expression with the copyright goals of advancing the useful arts and sciences by affording protection to the creators of such work.
This idea/expression dichotomy is ultimately the crux of the analysis regarding potential copyright infringement.

It is very obvious in a painting. If you paint a picture of the sun setting into a lake by your house, you cannot prevent others from painting the same scene. However, you can prevent someone from taking your original painting and turning it into a poster for sale.

In photography, a recent case decision also makes this concept seem obvious. In recent news, photographer Ryan McGinley, known for work that presents a lush vision of youth culture, was sued by another photographer who accused him of relying too heavily on her work for his inspiration. Janine Gordon filed suit against McGinley saying that at least 150 of his photographs are “substantially based” on her work and are violations of her copyright protections. She lost because artists can have no claim to ideas such as an interracial couple kissing, a person gazing skyward with outstretched arms, or a man riding on a spotted horse.

In radio, it should be equally as obvious despite talent wanting to think that there are less potential iterations for ideas as there are in painting or photography. Unless someone is using the exact words –– using the same ideas even in extremely similar ways will not be enough to evoke copyright infringement. Of course, this goes both ways. If a host is using a magazine article as part of his preparation, and recites the article word for word –– even only in part –– there could be infringement (though, there may also be a fair use defense, but that is for another article). On the opposite side, if a website reposts content from your show on their page, it too could be infringement.

Understanding the idea/expression dichotomy will allow you to use material without infringing upon others’ protected content while also knowing when usage of material is infringing your rights.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

SPRINGFIELD, Mass. –– When choosing to use non-original materials as a portion of programming, it is important to make sure that such usage falls squarely within the accepted affirmative defense of fair use.

A New Jersey federal appeals court recently reinstated a copyright and defamation lawsuit against New Jersey talk radio station, New Jersey 101.5 (WKXW-FM) and its former PM drive team “Carton & Rossi.” Craig Carton currently co-hosts the WFAN, New York morning drive show “Boomer & Carton.” Ray Rossi hosts an evening show on New Jersey 101.5.

The case was simple. New Jersey Monthly (NJM) hired a photographer to take a photo of Carton & Rossi to accompany an article to be published. An unknown employee of WKXW-FM then scanned in the image from NJM and posted it to the WKXW-FM website, among others. The image, as scanned and posted, cut off reference to NJM’s story title, and eliminated the gutter credit identifying the photographer. The station invited visitors to alter the image and submit resulting versions. In all, the station posted 26 of these submissions. At no time did the station or the hosts ask the photographer for permission, and as a result –– the photographer sued.

How could a radio station be liable for using a photo of their talent? They don’t own the copyright to do so. Here, the magazine didn’t own the copyright either. Their original contract stated that the photographer retains the copyright.

The appropriate language of the Copyright Statutes contain a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship and research. The court must consider the following four factors when determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes;

2. The nature of the copyrighted work;

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

4. The effect of the use upon the potential market for, or value of, the copyrighted work.

The station argued that their usage of the image was “news reporting” –– a term which appears in the Copyright Act’s non-exhaustive list of potential purposes of fair use. The court disagreed. News organizations are not free to use any and all copyrighted works without the permission of the creator simply because they wish to report on the same events a work depicts.

In order for a work to be determined fair use as news reporting, the news outlet must create a new work that, in part, comments on the original work and uses such pieces of the original in the process.

If the radio station is the only outlet breaking this news, and no similar broader news coverage or editorial commentary existed, such as this case, it severely undercuts the argument that such news reporting gives any new meaning to the original image. In such a scenario, the court determined that it seemed more likely that the station did not want to go to the trouble of creating its own eye-catching photo but simply appropriated the image for the same purpose.

Lastly, the court determined that most commercial usage couldn’t be considered fair usage. The station never contested that its usage was commercial, and therefore the court found it so, thereby negating their fair usage assertion.

While the posting of the 26 altered versions of the original image may fall within the court’s view of news reporting –– as it would be adding new meaning to the original image, both literally and figuratively –– the court concerned itself with the initial posting which did not fall within such an affirmative defense.

Additionally, the radio station argued that their usage was news reporting, but never argued that such a usage was non-commercial in nature. Considering that radio stations are inherently commercial enterprises, effort needs to be spent on the assertion that any particular usage when used as content, whether deemed to be infringing or not, is not the sole contributing factor into whether or not a station is commercially viable. Obviously, quality content –– as a whole –– dictates marketability, but the argument needs to be made that no particular piece of content is necessary to commercial marketability.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at matthew@matthewharrison.com.

SPRINGFIELD, MA — On May 16th, at 6:30 am Stefanie Gordon boarded a Delta flight from New York to Palm Beach. Somewhere along the flight, out the window of her airplane seat, she took a photo, tweeted it to friends when she landed, and then headed off to spend the day with her father. Gordon’s now-famous photo of the space shuttle Endeavour soaring through the clouds got her an overwhelming amount of attention but also landed her smack in the middle of an ethical and legal debate inherent to the future of the internet.

The photo was viewed nearly one million times, and has been showed by hundreds of news outlets around the world. She was paid by precisely five news organizations.

This was not the first time this happened. Janis Krum landed in the middle of the digital rights debate in 2009, when a passenger aircraft made an unexpected landing in the Hudson River. Krum took the one photo on his iPhone and instantly tweeted it from the ferry he was on a few feet from the plane, before helping passengers off the floating aircraft. He earned virtually nothing from his famous photo, which was copied and used by both commercial and private publications around the world.

While some think everything digital on the internet should be free, commercial outlets that sell a product using images and videos should feel compelled to pay for content they use.

This affects the broadcaster in two ways: first, there is potential liability for re-posting content that is found online; second, you need to protect your own original content before posting it online. And, yes, in today’s world of media convergence, photography falls into the elemental arsenal of radio broadcasters!

The mere act of taking a photograph grants the photographer copyright in the image Sharing it on a social media sites – in theory – does nothing to limit or reduce that fundamental right. So, unless the photograph is posted with a message that says, “copy this and pass it along” the photographer would maintain the copyright in the image. This applies to photographs, text, audio, or video content.

While copyright may attach immediately upon pressing the shutter or record button, so comes with it the cloud of legal uncertainty. Professional photographers are well schooled in controlling image distribution, but in the era where “everyone is a photographer,” it is often an amateur that shakes things up.

It is happening more often than ever that an amateur takes an amazing photo and does not realize its inherent value right away. Gordon immediately tweeted it, and that just let the floodgates open. People need to realize that their work – especially that which is newsworthy – may have value.

Amateurs probably wouldn’t consider this in the middle of such excitement, but it is possible to sell more valuable exclusive rights to a news outlet, or to find an agency to do the bidding for you. The days when Newsweek and Time magazine would fight over the rights to a photo with six-figure checks are dwindling, but there is still value in exploring value ahead of publication to social media.

News outlets can publish content under the theory that it is protected First Amendment speech. However, its application as fair use is widely debated. In a situation when a news outlet has no alternative access to an important image, they would be protected by fair use. However – those cases are much rarer than one would expect.

Meanwhile, retaining copyright doesn’t mean retaining all rights. A particularly vexing problem facing users of services like Twitpic involves the ever-changing fine print in the sites’ terms of service agreements. Both Gordon and Krum used Twitpic to share their photos. Currently, Twitpics’ terms of service informs users that the firm has the right to resell any images loaded by original rights holders onto its servers. In other words, Gordon has the right to sell her Space Shuttle picture, but TwitPic does now, too. They take an unlimited non-exclusive license to use the image – and by uploading it, you give them that right.

It is inevitable that amateur users will increasingly find themselves in possession of powerful, newsworthy photos and video content… and the temptation for professionals to use them without acquiring the rights – either claiming fair use based on their being newsworthy or the belief that since it was found for free on the internet, the creator doesn’t care about their rights in it – will only lead to future liability.

SPRINGFIELD, Mass. –– Understanding ownership rights of audio content is one of the more common issues to cross my desk. While most of the information that exists on the topic, including court cases and their analysis, is centered on music-based audio, the rules can be similarly applied to both spoken- or music-based content. Therefore, this article will examine the application of such rules to music and aptly apply them to spoken-word content.

A work made for hire is defined as a work created by an employee within the scope of the employee’s employment. A work made for hire can also be created by a contractual agreement between two parties.

Unlike radio contracts, most recording contracts are classified as independent contractor relationships and as such, recording contracts are not usually deemed as works made for hire. However, record labels are adding work made for hire clauses.

Under the definition of “work made for hire” in the Copyright Act, works are eligible for such status if there is an employment relationship or if certain types of works are commissioned (as detailed in a contract). These include “a contribution to a collective work” and “a compilation.” Both of these categories include sound recordings.

Work made for hire clauses in recording contracts have serious legal implications for artists. If the sound recording is classified as a work made for hire, the record label can retain the copyright to the work and the masters of the recording.

As a general rule, artists retain the right to have all masters returned after a 10-year incubatory period. But, now that is changing as the industry standard is shifting from independent contractor relationships to works made for hire.

In September 2010, Bob Marley’s family lost a lawsuit against Island Records seeking the copyrights to several of his best recordings. “Each of the [recording] agreements provided that the sound recordings were the ‘absolute property’ of Island,” U.S. District Judge Denise Cote wrote. She added that it was irrelevant that Marley might have maintained artistic control over the recording process. What mattered, she said, was that Island had a contractual “right” to accept or reject what he produced.

If the parties do not expressly agree in writing that a sound recording is a work made for hire, and an employer/employee agreement is not in effect, then the collaborators are joint authors of that sound recording. The applicable sections of copyright law, taken together, mean that unless each author’s contribution is distinct, discrete and separately distinguishable within the collaborative work, the law may deem them to be joint owners of the whole. Absent an agreement to the contrary, authors own the work jointly and equally.

Each joint author, therefore, has the right to exercise any or all of the exclusive rights inherent in the joint work. This means that each author can grant third parties permission to use the work on a non-exclusive basis without the consent of other joint authors. Each author may also transfer his or her entire ownership interest to another person without the other joint authors’ consent. Each author may also update the work for his or her own purposes. Additionally, each joint author has a duty to account to the other joint authors for any profits received from licensing the joint work. This certainly could be a problem if you intended on maintaining exclusive control over the joint work.

What does this mean for you? It means that you need to read and understand the paperwork that you are signing when you are working on creating audio content.

Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at Matthew@matthewharrison.com. Meet him at the New Media Seminar June 10-11 in New York City.

A camera sees differently than our eyes do and can be used as a means to communicate a story. For most artists – the story goes beyond themselves and capturing moments from their lives and the literal content contained within the frame. The photographs no longer reveal literal truth but instead present a metaphor for a greater truth. The viewer is engaged in identifying the metaphor and appreciating the relationship that the photographer has demonstrated with the subject. This portfolio is both. However, there is a third component of this portfolio that makes it worthy of being the work product of a Masters Degree Scholar: these photographs were specifically created in such a way as to maximize a viewers engagement with these images. I applied scientific research to my photographic process – in order to maximize the portfolio’s ability to engage the viewer.