Jan/Feb ’08 Guild News

 

Advocacy Report

Hey, That’s My Work on Their Web Site!

© 2007 Lisa Shaftel, National Advocacy Committee Chairperson, and Linda Joy Kattwinkel, Attorney-at-Law

Has your work been infringed on someone’s Web site? What are your legal rights? Who is responsible for removing it?

You could try contacting the person who posted the file, but you may not be able to find out who that is, and they may not respond to you. Fortunately, the Digital Millennium Copyright Act of 1998 (DMCA) gives you an alternative.

Whenever your work is copied without permission, everyone who participates in making or distributing the unauthorized copy is legally liable for infringement. On the Internet, this includes the Internet service provider (ISP) which hosts the Web site where the infringing copy is being displayed, even though ISPs are not involved in deciding what content will be posted.

The DMCA gives ISPs a “safe harbor” from this kind of liability. It established a legal “notice and take-down” process which allows you to demand that infringing copies of your work be removed from online sites. If your notice complies with the statutory requirements, the ISP will not be liable for infringement if it takes down the infringing content.

A Summary of the DMCA, prepared by the U.S. Copyright Office, can be found at www.copyright.gov/legislation/dmca.pdf.

Here’s how to use the DMCA process:

First, find out if the ISP has a DMCA “designated agent.” In order to qualify for the DMCA safe harbor, an ISP must register a designated agent to receive DMCA notices. The ISP is supposed to submit the designation to the Copyright Office and to post contact information for their designated agent prominently on its Web site. The Copyright Office maintains a list of designated agents on its Web site, www.loc.gov/copyright/onlinesp/list/.

If you don’t find a designated agent, you can still use the DMCA process. Many ISPs have not heard about this law, but when they find out about it, they want to comply.

How do you find the ISP for the infringing Web site? One way is to run a “whois” search for the site’s URL. There are several sites that will do a global “whois” search, for example, www.Betterwhois.com or www.register.com. Enter the URL for the Web site. When you get the results, look for the “domain servers.” This will tell you the URL of the ISP for the site, at least as of the date the whois record was last updated. Another method is to go to your “start” button on your computer, select “run,” and enter “rmd.” This will bring up a dos text screen. Enter “ns lookup” followed by the Web site URL and hit enter. You should get a string of numbers, which is the numerical URL for the domain name server currently hosting that URL. Then type “ns lookup” again, followed by that numerical URL and enter. That should give you an alphabetical URL, which you can type in your browser and hopefully find the Web site for the ISP. (Note: unfortunately, these methods are not always successful. Some unscrupulous ISPs hide their identification information from these programs).

Second, write a formal take-down notice to the service provider with the following required information:

• Your name, address, phone, and email
• Your electronic or physical signature
• Identification of your work that is being infringed, such as its title or an image (If you have registered your work, it wouldn’t hurt to include a photocopy of your registration certificate. However, it is not necessary to have a copyright registration to use this procedure.)
• The Internet location of the infringing content, such as a URL
• Sufficient information or description of the infringing content so that the ISP can identify it correctly, e.g., a print-out of the infringing Web page with the infringing content circled
• A statement that you believe in good faith that the infringing content was not authorized
• A statement, under penalty of perjury, that the information in your notice is accurate, and that as the copyright owner, you are authorized to submit the notice.

This list of required information can be found in Section 512(c)(3) of the DMCA.

San Francisco intellectual property attorney and Guild member Linda Joy Kattwinkel has prepared a fill-in-the-blank DMCA take-down notice available exclusively for Guild members to use, as one of your member benefits. Members should contact Administrative Director Tricia McKiernan at the national Guild Office to obtain the form: 212-791-3400 (ext 15).

Third, send your take-down notice to the designated agent by e-mail and certified return receipt mail or private courier (e.g., FedEx) and save the receipt.

Once the ISP receives your formal notice, it is required to “expeditiously” remove or block access to the infringing work.

The ISP is not required to notify the person who posted the infringing content (the ISP’s “subscriber”) before removing it, but the ISP must notify the subscriber after the content is removed. The DMCA also provides a process by which the subscriber can appeal the takedown with a “counter-notice.” That counter-notice must include a statement under penalty of perjury that the content was taken down as a result of mistake or misidentification, and that the subscriber will accept service of a lawsuit in the subscriber’s geographic jurisdiction. See Section 512(g) of the DMCA.

If the ISP receives such a counter-notice, it will notify you. Then, if you don’t tell the ISP that you have filed a lawsuit against the subscriber within 10 days, the ISP must re-post the disputed content. This is rare, however. Most people will consent to removal of the content rather than submit a counter-notice. The DMCA includes penalties for making misrepresentations in take-down notices or counter-notices.

MySpace

Many Guild and ASMP members have already had their images infringed on MySpace pages. As of this writing, DMCA take-down information is on the MySpace.com Terms & Conditions page: www.myspace.com/index.cfm?fuseaction=misc.terms. Scroll down to #9. Copyright Agent, MySpace, Inc., 8391 Beverly Blvd., #349, Los Angeles, CA 90048; Facsimile: (310) 969-7394; Attn: Copyright Agent; and e-mail: copyrightagent@myspace.com.

The Guild on Capitol Hill

A new copyright bill, H.R. 4279: “Prioritizing Resources and Organization for Intellectual Property Act of 2007’’ (To enhance remedies for violations of intellectual property laws, and for other purposes), was introduced in the House of Representatives in December 2007 by Rep. John Conyers, Jr. (D-MI). The bill includes a variety of updates to existing codes, especially anti-piracy remedies.

The bill was sent for review by the House Judiciary Committee. The Copyright Office held a one-day roundtable in Washington, DC, on January 25, 2008, to discuss the pros and cons of the section pertaining to revision of §504(c)(1) of U.S. Copyright Law, the definition of “compilations,” and the determination of statutory damages for infringement of copyrighted works registered as compilations.

Graphic Artists Guild National Advocacy Committee Chair Lisa Shaftel participated in the meeting in Washington, DC, representing the Guild and visual artists. Special thanks to Northern California Chapter Guild member and Intellectual Property attorney Linda Joy Kattwinkel for helping prepare Lisa for the meeting.

The Guild believes that the current definition of a compilation in our copyright law is inaccurate when applied to current media. Digital media didn’t exist when a “compilation” was defined for this section; the print model of a published book or magazine was what people had in mind. Digital media now allows for the publication of compilations of musical recordings, motion picture collections, image collections and web sites (which are registered as compilations). These all contain works that were previously individually published and/or qualified for individual copyright. Individual copyright and economic value should remain whole even if individual works are published and registered as a “compilation.” Infringement of multiple images in a compilation should still be valued individually when assessing statutory damages against an infringer.

ADVISORY

Publisher Delaying Payments

Three Guild members have reported experiencing unreasonable delays in payment from Carus Publishing Company for freelance work they did for the company that was accepted and used in Carus publications. In two instances, the delays represent breaches of contracts, since the terms of the contracts state specifically when Carus would pay the illustrators, but one was not paid for over six months beyond the date specified in the contract, and the other still has not been paid after weeks of waiting. These two illustrators also reported the poor response they received from Carus when they inquired about the delays. Carus is the publisher of Cricket Magazine Group, whose publications include Babybug, Ladybug, Spider, Cricket, Muse, Odyssey, Cicada, and other children's magazines.

If you have experienced this problem with Carus, please contact Tricia McKiernan at the Guild Office by calling 212-791-3400, ext. 15 or by email

Here's a list of additional articles in this issue:

The Guild's 2007 National Board Meeting Report

Leading Creatively — A Report on the ICOGRADA World Design Congress 2007 in Habana, Cuba


For a pdf of the complete issue, click here.