Copyright

Copyright Ownership

Copyright ownership encompasses several important concepts beyond the simple question of who initially created the work at issue. As discussed below, the person who creates a work is not necessarily the copyright owner. Many mistakenly believe that the creator of a work automatically holds the copyright. While this is often the case, exceptions do occur when an employee creates a work in the course of his or her employment, or if an independent contractor creates a work "made for hire." Moreover, if more than one "creator" is involved, the copyright might be shared.

What Copyright Covers

Copyright law applies to any original works of authorship that are fixed in a tangible medium of expression, and gives copyright owners certain rights to control the use and distribution of their work. The following two sections explain the two concepts in more detail:

Copyright

A basic understanding of copyright principles is essential for any blogger, researcher, reporter, photographer, or anyone who publishes their creative works. It’s important for two reasons. First, you should understand how you can properly make use of someone else’s work – quoting from it, reprinting it, summarizing it, even satirizing it. And second, you should understand how you can protect your own legal rights in what you create, so that others don’t take unfair (even unlawful) advantage of it.

Creation Science Evangelism v. Rational Response Squad

Date: 

09/16/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Rational Response Squad

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Website

Status: 

Concluded

Description: 

In September 2007, Creation Science Evangelism (CSE), a creationist group founded by Kent Hovind, recently sent a raft of DMCA takedown notices to YouTube complaining that various user-posted videos infringed its copyrights in videos of its seminars. Among those users whose videos were taken down was the Rational Response Squad (RRS), an atheist group.

The videos flagged for removal were all critical of CSE, and some consisted of expression entirely original to the YouTube poster. Other videos used portions of CSE's own videos to make critical commentary about the organization.

RRS created a video -- Open letter to YouTube -- arguing that its videos were protected under fair use.

YouTube also canceled RRS's entire account for a time (the rationale for doing so is not clear), but later reinstated it. As of April 2008, CSE has not taken further action on the matter.

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Oregon v. Justia

Date: 

04/07/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Justia Inc.; Public.Resource.Org, Inc.

Type of Party: 

Government

Type of Party: 

Organization

Legal Counsel: 

Karl Olson - Levy, Ram & Olson LLP

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

On April 7, 2008, the Legislative Counsel Committee of the State of Oregon sent a cease-and-desist letter to Justia, a free online resource for judicial decisions and statutes, claiming that Justia's posting of the Oregon Revised Statutes violates its copyright. The Committee is not claiming copyright in the text of the law itself. Instead, the Committee claims copyright in

the arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and such other incidents as are the work product of the Committee in the compilation and publication of Oregon law.

Carl Malamud of Public.Resource.Org, another online source of free caselaw and statutes, has gotten involved in the dispute. Although the Committee did not send Malamud a cease-and-desist letter, he wrote to the Committee on April 13, indicating that Justia had shared its letter with him and notifying it that he had disabled the public's access to the Oregon Revised Statutes on his site. He followed up on April 15, notifying the Committee of various technical deficiencies in the version of the statutes publicly available on the Legislative Assembly's website.

In late April, Malamud, Tim Stanley from Justia, and their attorney Karl Olson participated in a conference call with representatives of the Committe, during which they discussed the possibility of a mutually acceptable licensing solution. At this time, the Committee proposed a "public license" to Justia and Public.Resource.Org and rescinded its initial demand that Justia remove postings of the Oregon Revised Statutes by April 30. However, in subsequent letters, Malamud and Olson (on behalf of both Public.Resource.Org and Justia) rejected the proposed license as "incompatible with how public domain data is distributed" and inconsistent with their understanding of copyright law. In his letter, Olson indicated that his clients intended to post the entirety of the Oregon Revised Statutes online by June 2, 2008. (Note: Justia has not removed its copies of the statutes, so this time frame appears to apply only to Public.Resource.Org.)

On May 16, 2008, Karl Olson sent another letter to the Committee, notifying it that Justia and Public.Resource.Org intended on filing a complaint for declaratory relief on or before June 2, 2008. The letter provided a link to the draft complaint.

On June 19, 2008, the Legislation Council Committee decided in a hearing not to pursue copyright actions regarding the statutes.

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Church of Scientology Threatens Wikileaks Over Publication of Church "Bibles"

Wikileaks, which purports to provide an "uncensorable Wikipedia for untraceable mass document leaking and analysis," is back in the news as it faces a new legal threat from the Church of Scientology.

Subject Area: 

Religious Technology Center v. Wikileaks

Date: 

03/27/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Wikileaks

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Wiki

Relevant Documents: 

Status: 

Pending

Description: 

On March 28, 2008, a lawyer for the Religious Technology Center (RTC), the entity that owns copyright in the Church of Scientology's writings and religious materials, sent an email to Wikileaks alleging copyright infringement. The email complained that an unknown Wikileaks user posted certain of Scientology's "Advanced Technology" works on the site. It demanded that Wikileaks remove the allegedly infringing material and requested that the website "preserve any and all documents pertaining to this matter and this customer, including . . . logs, data entry sheets, applications . . ., registrations, forms, billing statements or invoices, computer print-outs, disks, hard drives, etc."

In response, Wikileaks issued a press release on April 7, 2008, in which it publicly refused to remove Scientology's documents and vowed to release several thousand pages of additional Scientology materials in the coming week. In the press release, Wikileaks also sharply criticized Scientology's history of litigation aimed at keeping its documents out of the public eye, arguing that the controversial religious group "aids and abets a general climate of Western media self-censorship."

As of April 14, 2008, Scientology has not taken further legal action.

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Subject Area: 

Rowling v. RDR Books: Harry Potter Lexicon Trial Starts Today

The trial in Rowling v. RDR Books starts today in the United States District Court for the Southern District of New York. The New York Times reports that Rowling herself will take the witness stand.

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FranklinCovey v. Lycos, Inc. (takedown notices)

Date: 

08/02/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Lycos, Inc.

Type of Party: 

Organization

Type of Party: 

Organization
Intermediary

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Lawsuit Filed

Description: 

On August 2, 2007, FranklinCovey, the owner of the copyright in the book The 7 Habits of Highly Effective People, sent a DMCA takedown notice to Lycos, alleging copyright infringement. Lycos operates Angelfire, a website that offers free space, as well as a paid subscription system, for Internet users to post blogs, photo galleries, and other information. FranklinCovey claimed that unknown Angelfire users posted a full digital copy of The 7 Habits on the website. Lycos did not respond to this notice, nor to a follow-up notice sent a week later . FranklinCovey filed suit against Lycos on December 17, 2007, seeking damages and an injunction (see related database entry). The parties settled in February 2008.

Jurisdiction: 

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Subject Area: 

CMLP Notes: 

Jill Button editing

FranklinCovey v. Lycos, Inc.

Date: 

12/17/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Lycos, Inc.; Does 1-5

Type of Party: 

Organization

Type of Party: 

Individual
Intermediary

Court Type: 

Federal

Court Name: 

United States District Court for the District of Utah

Case Number: 

2:07-cv-00974-BCW

Legal Counsel: 

None

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

In December 2007, FranklinCovey Co., the owner of the copyright in the book The 7 Habits of Highly Effective People, filed suit against Lycos and five "John Doe" defendants, alleging copyright infringement. Lycos operates Angelfire, a website that offers free space, as well as a paid subscription system, for Internet users to post blogs, photo galleries, and other information. FranklinCovey claimed that unknown Angelfire users posted a full digital copy of The 7 Habits on the website.

In August 2007, the company had sent Lycos two takedown notices pursuant to Section 512 of the Digital Millennium Copyright Act (see related database entry), but Lycos allegedly did not respond byremoving or disabling access to the infringing material. FranklinCovey's complaint sought actual or statutory damages (at its election) and an injunction barring the defendants from posting its work. The parties settled before Lycos filed an answer, and FranklinCovey voluntarily dismissed the action. Lycos has taken down the digital copy of The 7 Habits.

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CMLP Notes: 

Source: RSS feeds (Internet Cases)

Air Force DMCA-Bombs YouTubed Ad

Over at Wired's Threat Level blog, Kevin Poulsen reports on a new DMCA overreach: the U.S. Air Force complained (via outside counsel) about his posting of their recruiting video. The post, Poulsen says, was initially made at the Air Force's invitation.

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Subject Area: 

U.S. Air Force v. Wired/Threat Level

Date: 

03/05/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Wired (Threat Level)

Type of Party: 

Organization

Type of Party: 

Organization

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

On March 5, 2008, a lawyer for the U.S. Air Force sent a DMCA takedown notice to YouTube, requesting that it remove a thirty-second Air Force promotional video posted to the site by Wired's Kevin Poulsen in connection with a February 27, 2008 article. The article described the Air Force's new recruitment drive as embodied in the promotional video:

The Air Force is going large with a new tech-themed recruitment drive sporting the tagline: "A Changing World." In this 30-second TV spot, cool headed airmen in the service's fledgling Cyber Command are seen combating one of the "three million" hacker attacks that target the Pentagon building every day.

YouTube removed the clip in response to the notice. According to Poulsen's post about the takedown, the Air Force originally sent the clip to him and thanked him for agreeing to run it. Wired is now hosting a copy of the video clip on its own servers.

The takedown notice is interesting given that U.S. government works generally are not copyrightable, but an indepdendent contractor may have created the promotional video and assigned its right to the government. How the law applies in those circumstances is less clear.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

6/09/2008 - No updates found. (JMC)

New Major League Baseball Restrictions on Press Credentials Hamstring Online Coverage

As an avid baseball fan, I should have been paying closer attention to the recent dispute over Major League Baseball's new restrictions on credentialing journalists who cover MLB games. A nice summary of the dispute on the Reporters Committee for Freedom of the Press' Sidebar Blog awoke me from my slumber.

Content Type: 

Subject Area: 

Three Unnamed Guitar Heroes v. Ojala

Date: 

02/01/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Santeri Ojala

Type of Party: 

Individual

Type of Party: 

Individual

Publication Medium: 

Website

Status: 

Pending

Description: 

Finnish media artist Santeri Ojala created a series of popular YouTube videos that parody legendary guitarists such as Steve Vai, Carlos Santana, and Eric Clapton. In the videos, Ojala overdubbed the guitarists' performances with his own (intentionally) bad guitar playing. The combination of the guitarists' rock-star stage antics and Ojala's amateurish noodling was humorous and well-executed enough to warrant attention from Wired, Guitar Player magazine, and the Jimmy Kimmel Live! television show, among others. Guns N' Roses guitarist Slash, who was a guest on the same episode of Jimmy Kimmel's show, jammed with Ojala after Ojala performed a live parody of a Slash concert video on the show.

In early 2008, YouTube recieved three complaints regarding the videos, which appear to have come from artists that Ojala had parodied. YouTube disabled Ojala's account in response. According to Listening Post, a Wired.com blog, YouTube parent company Google has a policy of disabling accounts that have "multiple copyright infringement claims filed against them." At this point Ojala has not taken action to reinstate his account; the Listening Post quotes Google as saying that this would require that Ojala "hire a lawyer and appeal the artists' infringement claims."

It remains to be seen whether YouTube will reactivate Ojala's account or whether the videos will result in liability.

Update:

Ojala still is producing shred videos, as can be seen at his website.

Wired.com, which has covered the situation in a number of articles and blog posts, now hosts some of the videos.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

6/09/2008 (JMC) - No developments found.

ABC v. Spocko

Date: 

12/21/2006

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Spocko

Type of Party: 

Organization
Large Organization

Type of Party: 

Individual

Legal Counsel: 

Matt Zimmerman (Electronic Frontier Foundation)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Blogger "Spocko" posted audio clips from a talk radio program on San Francisco-based KSFO-AM on his blog in order to criticize what he viewed as racially insensitive and religioulsy intolerant rhetoric on the part of the radio hosts. In December 2006, ABC, Inc., which owned the radio station and the copyrights to the radio show content, sent a letter to Spocko's hosting service, 1&1 Internet Inc., claiming that the posted audio clips violated its copyrights and demanding that 1&1 direct Spocko to remove the content immediately.

After receiving ABC's letter, the hosting service shut down Spocko's blog, but Spocko moved the blog to a different provider. The Electronice Frontier Foundation took on the case and responded to ABC's letter on Spocko's behalf in January 2007. EFF's letter articulated in detail why Spocko's use of the audio clips for purposes of criticizing the radio program was a fair use protected by U.S. copyright law and the First Amendment. The letter warned ABC that its claim that Spocko had violated its copyright could subject the company to liability for knowing, material misrepresentation of a claim of copyright infringement in violation of section 512(f) of the DMCA and for violations of Cal. Bus. & Prof. Code § 17200, a California law prohibiting unlawful, unfair, or fraudulent business practices.

Neither side filed a lawsuit.

Jurisdiction: 

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Subject Area: 

Geller v. Sapient (Letter)

Date: 

10/02/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Brian Sapient

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

US District Court for the Northern District of California

Case Number: 

3:07-cv-02478 VRW

Legal Counsel: 

Corynne Mcsherry, Jason Schultz, Marcia Hofmann (Electronic Frontier Foundation)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

Brian Sapient, a member of the "Rational Response Squad," a group which seeks to debunk what it considers irrational beliefs, posted a video on YouTube from the NOVA television program "Secrets of the Psychics," in which magician James Randi challenges the performance techniques of famous spoon-bender Uri Geller. The clip allegedly incorporated images from a film of Geller performing at a charity event in England, the copyrights to which were assigned by the film-maker to Geller's company, Explorologist. According to Sapient, this portion of the NOVA clip lasts only eight seconds.

Geller sent a DMCA takedown notice to YouTube, alleging that the NOVA clip infringed his copyrights in the charity performance film. As a result,
YouTube removed the video from its website and suspended Sapient's account.

On May 8, 2007, Sapient, with the help of the Electronic Frontier Foundation, filed a lawsuit alleging that Geller's takedown notice knowingly, materially misrepresented a claim of copyright infringement in violation of section 512(f) of the DMCA because no reasonable person could believe that the NOVA clip's use of the excerpted footage was not fair use. Sapient seeks damages, a declaratory judgment the video does not infringe Geller's copyrights, and an order restraining Geller from bringing further actions against Sapient in respect of the video.

(See also CMLP's entry for the related case, Explorologist v. Sapient, a suit brought by Geller's company against Sapient in Pennsylvania alleging that the publication of the footage breaches Explorologist's copyrights under UK law.)

UPDATE: Defendants filed a motion to dismiss the case due to lack of subject-matter jurisdiction, lack of personal jurisdiction, and insufficiency of allegations surrounding the content of the takedown notice. The defendants also moved to change venue to the Eastern District Pennsylvania, where the Explorogist v. Sapient case is being heard. On Feb. 4, 2008, the court granted the motion to dismiss as to personal jurisdiction, primarily because the DMCA takedown notice was sent from outside the United States. The court noted that Sapient may now bring his misrepresentation claim against Geller as a counterclaim in the Explorologist case.

Jurisdiction: 

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Hilton v. Persa

Date: 

01/29/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Bardia Persa, Reza Karamooz, Stephen Thomas, Kevin Green, Chazz Hoffman, Nabil Haniss, Nabila Haniss, Green Brothers Limited, John Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

CV 07-667-GHK

Legal Counsel: 

Paul S. Berra (for Nabila Haniss)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued
Settled (partial)
Withdrawn

Description: 

Paris Hilton sued Bardia Persa, Nabil Haniss, Nabila Haniss, and a number of anonymous defendants in January 2007 for copyright infringement, publication of private facts, and misapproriation of her right of publicity. The case revolved around a website, Paris Exposed, which offered viewers the ability to view personal materials belonging to Hilton for a fee. According to the complaint, the website contained Hilton's medical records, bank account information, credit card information, contracts and other legal documents, diaries, home videos, and photographs, which she had stored in a storage unit in California. Hilton alleged that the storage facility foreclosed on her unit because of a billing mix-up and then sold the contents at a foreclosure auction. The complaint alleged further that Nabil and Nabila Haniss purchased the materials for $2,775 and then sold them to the operators of the Paris Exposed website for a large sum of money.

Hilton's complaint, filed in federal court in California, alleged copyright infringement based on the defendants' unauthorized distribution and display of three works (apparently poems) created by Hilton -- "Love Letter," "I Can't Take It," and "How Would You Know?". Additionally, it alleged that the defendants had violated her privacy by publishing information contained in Hilton's medical and financial records, private home videos, audio taped conversations, diaries, and photographs, among other things. Finally, it alleged that the defendants misappropriated Hilton's right of publicity by using her name in the name of the website and displaying videos and other material containing her likeness for commercial gain.

In February 2005, when only the Hanisses had appeared in the action, the federal district court granted Hilton a temporary restraining, which barred the defendants from infringing her copyrights, publishing her private materials, and using her name and likeness. In late February 2005, the court granted Hilton a temporary injunction barring Bardia Persa from infringing her copyrights, publishing her private materials, and using her name or likeness. (Prior to the ruling, Hilton had acknowledged that the Hanisses had no part in operating the website.) Persa, apparently a resident of St. Kitts, never appeared in the action.

After the prelminary injunction issued, Paris Exposed shut down operations for a time, but then resurfaced at the same domain name. In June 2007, Hilton amended her complaint to drop Nabil Haniss from the lawsuit and to include claims against Green Brothers Limited, a St. Kitts company that allegedly was running the Paris Exposed website. The complaint also named three new individual defendants -- Karamooz, Thomas, and Green, who were alleged to be connected to the company.

In September 2007, Hilton settled with Nabila Haniss and dismissed the lawsuit against her. In October 2007, Hilton voluntarily withdrew her lawsuit against the remaining defendants, none of whom ever appeared in the action. The Paris Exposed website is still up and running.

Jurisdiction: 

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Universal Music Group v. Malkin

Date: 

05/03/2007

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Michelle Malkin

Type of Party: 

Large Organization

Type of Party: 

Individual

Publication Medium: 

Podcast

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Michelle Malkin, a political commentator and columnist, publishes a daily video podcast called "Vent with Michelle Malkin." The video podcast appears on Malkin's conservative Internet broadcast network Hot Air and is also regularly posted on YouTube. In the May 2, 2007 edition of Vent, entitled "Akon's Assault," Malkin criticized hip hop artist Akon for being a mysogynist and supported her arguments with excerpts from Akon's music videos and video footage from a concert in Trinidad.

On May 3, 2007, YouTube removed "Akon's Assault" in response to a claim of copyright infringement by Universal Music Group (UMG), the company that distributes Akon's albums and other content.

Malkin, with the help of the Electronic Frontier Foundation, responded by sending a counternotice to YouTube, asserting that the video did not infringe UMG's copyright and was protected under the fair use doctrine. Youtube restored the video, and UMG retracted its claim of copyright infringement.

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