What You Need to Know About Copyright

Disclaimer: this is not intended to be legal advice, but a helpful tool and resource. Consult a copyright lawyer for specific circumstances and counsel.

 

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The Basics
U.S. Copyright Office Definitions
Work for Hire
Duration of Copyright
Digitally inserting metadata into artwork to embed author information
What is an Orphan Work?
What is a resale royalty?
What are reprographic rights?
Keeping a Record
Copyright Law of the United States of America
Infringement…best practices
Copyright Registries
What is the American Society of Illustrators Partnership?

The Basics

a.

Copyright right protects your creation at the time of creation.

b.

THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998 highlights

1. 2.

3. 4.

Limited certain online infringement liability for Internet Service Providers Created an exemption permitting temporary reproduction of a computer program made by activating a computer in the course of maintenance or repair Created an exemption permitting temporary reproduction of a computer program made by activating a computer in the course of maintenance or repair Created a form of protection for vessel hulls [boat hull design]

c.

Copyright law does not protect your idea; it protects the tangible expression of your idea. Copyright is the right of the creator of the work or the creator’s heirs, not of the person who found or possesses the tangible expression of your idea.

d.

The difference between a copyright, a patent and a trademark [1]

1.

©

A copyright protects works of authorship, such as writings, music, and works of art that have been tangibly expressed.

2.

patent pending” “pat. pend.” or “pat. pending”

A patent is a limited duration property right relating to an invention, granted by the United States Patent and Trademark Office in exchange for public disclosure of the invention. Patent Pending: the expressions “patent pending” or “patent applied for” refer to a warning that inventors are entitled to use in reference to their product or process once a patent application has been filed, but prior to the patent being issued or the application abandoned.

3.

™ ®

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. The term “trademark” is often used to refer to both trademarks and service marks. Note: symbol for an unregistered trademark (™) symbol for a registered trademark ®

e.

The Internet: copyright protects text and pictures on websites just like books, CDs, DVDs, and works in other media are protected. You might not see a copyright notice on a website; that does not mean you are free to copy what you see or hear.

f.

Registration: Copyright protection begins at the moment the work is created on paper, recorded, or otherwise made permanent. For certain types of works, registration is advisable because you get certain additional benefits. Registration establishes a public record, which is necessary to sue someone in court for infringement. If you win your case, you may also be eligible for statutory damages and attorney’s fees. [2] The process from creating a work to registering it is straightforward.

1. 2.

Create a work Register the creation at the U.S. Copyright Office: Primary Registration Method

Registration with Electronic Copyright Office (eCO)

To file a claim to copyright in your work, we recommend you use the Copyright Office online system.

Before using the service, we recommend you first read eCO Acceptable File Types, eCO Tips, eCO FAQs, or eCO Tutorial (PowerPoint) eCO Tutorial (PDF).

Advantages include:

Lower filing fee of $35 for a basic claim (for online filings only) Fastest processing time Online status tracking Secure payment by credit or debit card, electronic check, or Copyright Office deposit account The ability to upload certain categories of deposits directly into eCO as electronic files

Processing Time: The time the Copyright Office requires to process an application varies, depending on the number of applications the Office is receiving and clearing at the time of submission and the extent of questions associated with the application. Current Processing Times

Login to eCO: eCO

Alternate Registration Method: Registration with Paper Forms

The fee for a basic registration using one of these forms is $65 payable by check or money order. Form CON (continuation sheet for applications) is also still available in paper. Paper forms are also available by postal mail upon request. Short forms are no longer available online. See below for Group Registrations. Visual Arts form

Group Registration Forms:

Visual Arts Form GR/CP w/instructions — For groups of visual art works works published as contributions to periodicals (Read more) —Form GR/PPh/CON — For groups of published photographs (Read more)

Preregistration — For certain works that have had a history of prerelease infringement

Electronic Form PRE

Renewal:

Form RE Form RE/CON: Continuation form to be used only in conjunction with RE application form –Addendum to Form RE: For all works published between January 1, 1964, and December 31, 1977, that were not registered during their first 28-year term. Must accompany form RE.

Licensing Electronic Funds Transfer Form – For use by statutory licensees to receive refund payments via electronic funds transfer

ETF form [3]

Do I have to register?

According to the Berne Convention [4] , copyright protection is obtained automatically without the need for registration or other formalities. Some national copyright offices and laws do however provide for registration of works. This can facilitate, for example, questions involving disputes over ownership or creation, financial transactions, sales, assignments and transfer of rights. [5]

Advantage of registering

Registration is still required to enjoy additional remedies against infringers. For one thing, registration offers the possibility to obtain statutory damages, rather than only the actual damages from the infringer. The Berne Convention does not contain any provisions on formalities for starting a copyright lawsuit, and so this is no problem. [6]

g.

Fair Use: under certain circumstances, “fair use” allows you to use parts of someone else’s work. There’s no magic formula, though. Scholarly criticism, teaching, and news reporting may be valid reasons for reproducing a copyrighted work. A number of other factors also need to be considered. (See Fair Use). in doubt, and with respect for another’s creative work, it’s always a good idea to find and ask the copyright owner for permission first.

Section 107 of the Copyright Act contains 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. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair. http://www.copyright.gov/fls/fl102.html

How to evaluate for fair use-see chapter 4 (for teachers, but a good sound approach for anyone): http://www.loc.gov/teachers/professionaldevelopment/selfdirected/copyright/

1.

2. 3. 4.

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes The nature of the copyrighted work The amount and substantiality of the portion used in relation to the copyrighted work as a whole The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.” [7]

h.

The correct copyright notice

1.

The formal language from the Universal Copyright Convention, September 1952 Geneva, revised July 1971 Paris: Article III.1: 1. Any Contracting State which, under its domestic law, requires as a condition of copyright, compliance with formalities such as deposit, registration, notice, notarial certificates, payment of fees or manufacture or publication in that Contracting State, shall regard these requirements as satisfied with respect to all works protected in accordance with this Convention and first published outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol © accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright. [8]

2.

Layperson’s explanation: [9]

a.

b.

The copyright notice consists of these three elements, in this order:

-The word “copyright”, its abbreviation “copr.” or the C-in-a-circle symbol ©.

-The year of first publication of the work. If this is a modified version, the years of each modification should be added. For example, the text “1985, 1987-1989” indicates the work was created in 1985 and modified in 1987, 1988 and 1989.

-The name of the author. This may be an abbreviation or a pseudonym, as long as the author can be identified.

If any of the elements is omitted or not in the correct form, the copyright notice is invalid.

When such a notice is given, Often the phrase All rights reserved is also present. This phrase is not a required part of the copyright notice itself. It indicates that the author not only claims to be copyright holder, but also does not want to give up any of his rights under copyright. Effect on copyright status Today there is no legal requirement to include a copyright notice on a work in order to get copyright protection. The presence or absence of a notice does not change the copyright status of a work. Effect on infringement lawsuits

However in certain jurisdictions, most notably the USA, including a valid notice means that an infringer is deemed to have known of the copyright status of the work. As a result the court will hold him accountable for willful infringement, which carries a much higher penalty than innocent infringement.

Effect of an incorrect notice

An incorrect notice today, at worst, can mean it is harder to prove willful infringement in the USA. In most other jurisdictions an incorrect notice makes no difference whatsoever.

i.

All rights reserved clause

1.

The formal language from article 3 of the 1910 Buenos Aires Copyright Convention: 3rd.–The acknowledgement of a copyright obtained in one State, in conformity with its laws, shall produce its effects of full right, in all the other States, without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right.

2.

Layperson’s explanation [10]

a.

Legal effect of the phrase

The phrase “All rights reserved” indicates that the copyright holder does not want to give up any of the exclusive rights he has under copyright law. This is only relevant for members of the Buenos Aires Copyright Convention.

Today all members of the Buenos Aires Copyright Convention are also member of the Berne Convention. The Berne Convention states that unless explicitly stated otherwise, all rights are reserved. Further, a copyright law may not require any formalities as a condition for copyright protection. Therefore “All rights reserved” has no legal significance anymore.

Free press exception

There is one location in the (Dutch) Copyright Act where the “all rights reserved” notice is relevant. The so-called free press exception in copyright law states that the press can freely copy news and articles about current topics, despite any copyrights on such articles. The source must be noted.

The free press exception can however easily be stopped by adding the “all rights reserved” notice to the original article. This bars the exception, according to copyright law. In this specific situation therefore the notice is relevant.

For most people this situation will not occur. The free press exception only applies to news, which is copied from a press medium by another press medium.

Some rights reserved

Even though the phrase “all rights reserved” has no legal significance today, it is still used with almost all copyright notices. The only practical function is that of a warning: the author realizes he has a copyright and he really means to keep it.

The Creative Commons initiative uses a slightly different phrase, Some rights reserved, to indicate its more liberal approach to copyright. The phrase then is used as a link text to the applicable Creative Commons license. Their “dedication to the public domain” statement uses the phrase “No rights reserved”.

h.

If a project is “killed” (“canceled” or “rejected”)

1.

The original written agreement defining the copyright holder remains intact if a project is “killed” (cancelled or rejected). The copyright holder retains all of the originally written agreed upon rights to use the artwork upon payment of the kill fee, canceled fee or rejected fee unless there is an written agreement that the rights revert back to the artist (creator).

a. b.

Cancellation fee: when a client decides to not use an artwork for their own reasons. Rejection fee: when a client rejects a work because it does not satisfy their stated requirement.

I.

Electronic Use Rights

1.

Electronic use rights should be negotiated at the beginning of a project and included in a written agreement. See one suggestion below which incorporates both print and electronic usage. A good reference page for this discussion: http://www.writing-world.com/rights/erights.shtml

RIGHTS TRANSFERRED:

a.

b.

___(Quantity)______ print copyright usage (your name) ______________painting in ____________________________by ____________________________

___(Quantity)______ ElectronicInternet Publishing copyright usage in ____________________________by ______________________

DURATION OF USAGE:

a.

b.

__ print use for an edition of ___

Electronic Internet Publishing Rights: for an edition of __(quantity)___ electronic copies for the duration __(Date from)______-__(Date to)_______. Electronic Internet Archiving Rights: for the duration __(Date from)______-__(Date to)_______.

LIMITATIONS ON MEDIA IN WHICH USED: (if not covered under “rights” for example: print rights only, no electronic usage)

limitations on number of insertions:

limitations on geographical use: for instance, United states, North America, (non-exclusive or exclusive Worldwide English language use etc)

FEES FOR RIGHTS GRANTED: (list names & amounts if more than yourself): $_______.00 USD

U.S. Copyright Office Definitions [11]

a.

Who is an author? Under the copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher. In cases of works made for hire, the employer or commissioning party is considered to be the author. See Circular 9, Work-Made-For-Hire Under the 1976 Copyright Act.

b.

What is a deposit? A deposit is usually one copy (if unpublished) or two copies (if published) of the work to be registered for copyright. In certain cases such as works of the visual arts, identifying material such as a photograph may be used instead. See Circular 40a, Deposit Requirements for Registration of Claims to Copyright in Visual Arts Material. The deposit is sent with the application and fee and becomes the property of the Library of Congress.

c.

What is publication? Publication has a technical meaning in copyright law. According to the statute, “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first distributed to the public. For further information see Circular 1, Copyright Basics, section “Publication.”

d.

What is a copyright notice? How do I put a copyright notice on my work? A copyright notice is an identifier placed on copies of the work to inform the world of copyright ownership. The copyright notice generally consists of the symbol or word “copyright (or copr.),” the name of the copyright owner, and the year of first publication, e.g., ©2008 John Doe. While use of a copyright notice was once required as a condition of copyright protection, it is now optional. Use of the notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office. See Circular 3, Copyright Notice, for requirements for works published before March 1, 1989, and for more information on the form and position of the copyright notice.

e.

What is copyright infringement? As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

f.

What is peer-to-peer (P2P) networking? A type of network where computers communicate directly with each other, rather than through a central server. Often referred to simply as peer-to-peer, or abbreviated P2P, a type of network in which each workstation has equivalent capabilities and responsibilities in contrast to client/server architectures, in which some computers are dedicated to serving the other computers. A “network” is a group of two or more computer systems linked together by various methods. In recent usage, peer-to-peer has come to describe applications in which users can use the Internet to exchange files with each other directly or through a mediating server.

g.

Where is the public domain? The public domain is not a place. A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

h.

What is mandatory deposit? Copies of all works under copyright protection that have been published in the United States are required to be deposited with the Copyright Office within three months of the date of first publication. See Circular 7d, Mandatory Deposit of Copies or Phonorecords for the Library of Congress, and the Deposit Regulation 202.19.

I.

What is a work made for hire? Although the general rule is that the person who creates the work is its author, there is an exception to that principle. The exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned in certain specified circumstances. When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author. See Circular 9, Work-Made-For-Hire Under the 1976 Copyright Act.

j.

What is a Library of Congress number? The Library of Congress Control Number is assigned by the Library at its discretion to assist librarians in acquiring and cataloging works. For further information, go to the Cataloging in Publication program website at www.loc.gov/publish/cip/.

k.

What is an ISBN number? The International Standard Book Number is administered by the R.R. Bowker Company. The ISBN is a numerical identifier intended to assist the international community in identifying and ordering certain publications.

Work for Hire

Definition [12] : Section 101 of the Copyright Act (title 17 of the U.S.Code) defines a “work made for hire” in two parts:

a.

a work prepared by an employee within the scope of his or her employment

OR

b.

a work specially ordered or commissioned for use

1. 2. 3. 4. 5. 6. 7. 8. 9.

as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas,

If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

The law defines a “supplementary work” as a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes.

The law defines an “instructional text” as a literary, pictorial, or graphic work prepared for publication and intended to be used in systematic instructional activities.

Owner of the Copyright in a Work Made for Hire

If a work is made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless both parties involved have signed a written agreement to the contrary.

Term of Copyright Protection

The term of copyright protection of a work made for hire is 95 years from the date of publication or 120 years from the date of creation, whichever expires first. (A work not made for hire is ordinarily protected by copyright for the life of the author plus 70 years.) For information about terms of copyright protection, see Circular 15a, Duration of Copyright

Ways to Avoid having your work being classified as “Work for Hire”

a.

b.

c.

Don’t sign a contract that includes the work for hire provision

Have a well-written, signed contract before work/artwork is done.

Include a contract clause that states the work prepared shall not be considered a work for hire as defined by sections 101 and 201(b) of the Copyright Act of 1976.

Duration of Copyright [13]

a.

Works Created on or after January 1, 1978

The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author’s life plus an additional 70 years. For a “joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter (unless the author’s identity is later revealed in Copyright Office records, in which case the term becomes the author’s life plus 70 years). For more information about works made for hire, see Circular 9, Works Made for Hire under the 1976 Copyright Act . For details about pseudonymous works, see fl 101, Pseudonyms.

b.

Works in Existence but Not Published or Copyrighted on January 1, 1978

The law automatically gives federal copyright protection to works that were created but neither published nor registered before January 1, 1978. The duration of copyright in these works is generally computed the same way as for works created on or after January 1, 1978: life plus 70 years or 95 or 120 years, depending on the nature of authorship. However, all works in this category are guaranteed at least 25 years of statutory protection. The law specifies that in no case would copyright in a work in this category have expired before December 31, 2002. In addition, if a work in this category was published before that date, the term extends another 45 years, through the end of 2047

c.

Works Already Under Statutory Protection before 1978

For works that had already secured statutory copyright protection before January 1, 1978, the 1976 Copyright Act retains the system in the previous copyright law—the Copyright Act of 1909—for computing the duration of protection, but with some changes. See Circular 15a, Duration of Copyright

Digitally inserting metadata into artwork to embed author information

a.

What is IPTC metadata? [14]

1.

Metadata is “data about data” – in the scope of photographs that is data about the digital image. Data about digital images.

a. b. c. d.

describe what you can see on the photo, either using free text or codes from a controlled vocabulary

provide administrative information about the photo like who has taken it, when and where it was taken, etc.

provide rights related information (copyright, usage rights)

provide workflow related information like an identifier and title for the photo or a job identifier.

These data may be stored with the digital image data in an image file. Well known formats are JPEG or TIFF files. These data may also be stored outside a photo file in a digital asset management system or by a external file, e.g. the XMP sidecar file or XML based news exchange format files as specified by the IPTC.

b.

Adding Descriptions to Digital Photos [15]

http://blogs.loc.gov/digitalpreservation/2011/10/mission-possible-an-easy-way-to-add-descriptions-to-digital-photos/

c.

IPTC-PLUS Photo Metadata Toolkit for Adobe CS [16]

http://www.iptc.org/cms/site/single.html?channel=CH0099&document=CMS1279131209658

d.

Software supporting IPTC photo metadata standards IIM and “IPTC Core” [17]

http://www.iptc.org/site/Photo_Metadata/Software_list/

E.

Embed file properties with Windows OS

1.

2.

3.

4.

Right click a file

Select “details” panel

Enter information such as title, author, your address, phone number, website date created, copyright etc

Click Apply & then OK to save

f.

Embed file properties with Mac OS

1.

2.

3.

Click the file

Select “get info

Enter the information you wish and save

g.

Embed file properties with Mac OS: No Clue! Someone help me out here

h.

Cutting Edge News

http://blogs.loc.gov/digitalpreservation/category/tools-and-infrastructure/

What is an Orphan Work?

An orphan work is a copyright protected work for which rightsholders are positively indeterminate or uncontactable. Sometimes only originator or rightsholder name(s) are known, yet contact is stymied by the exhaustive unavailability of sufficient further details.[1] A work can become orphaned through rightsholders being unaware of their holding, or by their demise (e.g. deceased persons or defunct companies) and establishing inheritance has proved impracticable.[2] In other cases, comprehensively diligent research fails to determine any authors, creators or originators for a work. [18]

a.

Orphan Works Resource Page for Artists http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

b.

5/16/2013 ILLUSTRATORS’ PARTNERSHIP ORPHAN WORKS BLOG update http://ipaorphanworks.blogspot.com/

What is a resale royalty?

An artist resale royalty, or droit de suite as it is often called in Europe, provides artists with an opportunity to benefit from the increased value of their works over time by granting them a percentage of the proceeds from the resale of their original works of art. The royalty originated in France in the 1920s deriving from estate issues of Jean Francois Millet, who died a pauper, and is in general practice throughout Europe, but is not part of current United States copyright law. Under the Copyright Act (the “Act”), 17 U.S.C. 101 et seq., visual artists, like other authors, are provided a bundle of exclusive rights, including rights to reproduce, distribute and create adaptations of their works. These rights, however, do not affect the disposition of the original work of authorship. Instead, the first sale doctrine, codified in 17 U.S.C. § 109, generally permits the lawful owner of a copyrighted work “to sell or otherwise dispose of the possession of that copy” and to “display that copy publicly . . .” without the authorization of the creator.

For many works, such as books, musical works and sound recordings, this system provides substantial economic benefits and incentives for creators. A question is whether the system is as advantageous for certain artists of visual works. For some artwork, where the primary financial benefit may be through the sale of the original work rather than multiple copies, the creator may receive less financial benefit from the work than do subsequent collectors or other downstream entities that are able to take advantage of the increase in the value of the artwork over time. A resale royalty right is one way by which to address this perceived inequity by allowing artists to receive additional compensation from later sales of the original work of art. Some foreign countries have experience with this approach. The Copyright Office has been asked by Congress to review how the current copyright legal system affects and supports visual artists; and how a federal resale royalty right for visual artists would affect current and future practices of groups or individuals involved in the creation, licensing, sale, exhibition, dissemination, and preservation of works of visual art. This initial notice of inquiry seeks comments from the public on the means by which visual artists exploit their works under existing law as well as the issues and obstacles that may be encountered when considering a federal resale royalty right in the United States.

a.

Who collects the royalties for visual artists?

Artists Rights Society (ARS) is a copyright, licensing, and monitoring organization for visual artists in the United States. Founded in 1987, ARS represents the intellectual property rights interests of over 50,000 visual artists and estates of visual artists from around the world (painters, sculptors, photographers, architects and others). [19]

1. 2.

Artists Rights Society (ARS) , located in New York City, is the preeminent copyright, licensing, and monitoring organization for visual artists in the United States. Founded in 1987, ARS represents the intellectual property rights interests of over 50,000 visual artists and estates of visual artists from around the world (painters, sculptors, photographers, architects and others).

ARS’ membership derives from two sources. First, ARS represents American artists who become its direct adherents and it represents foreign artists who are members of affiliated arts organizations abroad. A complete list of ARS’ American members is to be found in the “Artists Represented” section of this site; it includes such names as Milton Avery, Alexander Calder, Sam Francis, Arshile Gorky, Red Grooms, Robert Indiana, Sol LeWitt, Willem de Kooning, Lee Krasner, Barnett Newman, Bruce Nauman, Georgia O’Keeffe, Jackson Pollock, Ad Reinhardt, Susan Rothenberg, Mark Rothko, Richard Serra, Frank Stella, Andy Warhol, Frank Lloyd Wright, and many others.

ARS is also a member of CISAC (Confédération Internationale des Sociétés d’Auteurs et Compositeurs), the Paris-based, umbrella organization which oversees the activities of international copyright collecting societies in all media. As part of this international network of rights organizations, ARS maintains relationships with like-minded “sister societies” abroad. Through reciprocal agreements ARS represents the artist repertories of its foreign sister societies in the U.S., and they in turn represent ARS’ American repertory in their territories.

Links to CISAC and ARS’ sister societies may be found in the “Affiliated Organizations” section of this site, and a complete, current listing of all artists represented by ARS, both American and foreign, can be found under the “Artists Represented” section. A roster of most frequently sought artists may also be found in that same section. It includes such names as Georges Braque, Joseph Beuys, Pierre Bonnard, Constantin Brancusi, Marc Chagall, Jean Dubuffet, Marcel Duchamp, Max Ernst, Alberto Giacometti, Vassily Kandinsky, Paul Klee, Le Corbusier, Fernand Léger, Henri Matisse, Rene Magritte, Joan Miró, Edvard Munch, Pablo Picasso, Man Ray, and many others. [20]

Frequently asked Questions from Artists, ARS http://www.arsny.com/faqartists.html

What are reprographic rights? [21]

a.

Reprographic rights are held individually by each artist but are licensed collectively by a copyright collecting society that artists have mandated to administer these rights. Regrettably, there has not been a U.S. copyright collecting society to represent American illustrators, and illustrators do not currently receive any compensation for the exploitation of their reprographic rights. [22]

1.

2. 3.

Why are they important visual artists & what are the issues? http://www.asip-repro.org/

2/4/2013 document submitted to the US Copyright office by ASIP (American Society of Illustrators Partnership): http://www.copyright.gov/orphan/comments/noi_10222012/American-Society-Illustrators-Partnership-ASIP.pdf

REPROGRAPHIC RIGHTS AUTHORIZATION & AGREEMENT http://www.asip-repro.org/images/ASIP_ReproAuthorize.pdf

Keeping a Record

a.

Best defense

1.

2.

Keep permanent records of all registered works and keep them up to date

Your best defense will be good record keeping if you have not registered a work with the Copyright office or any other registry.

a.

b.

Document all contracts & correspondence, including when a project was started through completion .

Prepare a double set of authenticity information included such as date created, author, medium, size and include a good image including a close of your signature, copyright, date to establish provenance before a work gets published or sent to client. Keep one set in your file and mail yourself one set in a sealed envelope with authenticity information included such as date created, author, medium, size and include a good image including a close of your signature, copyright, date to establish provenance before a work gets published or sent to client. Retain the unopened, sealed, postmarked/dated enveloped indefinitely as part of the work’s record.

Copyright Law of the United States of America

a.

For the whole works:

http://www.copyright.gov/title17/92chap1.html#107

b.

§ 101 . Definitions [23]

Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following:

An “anonymous work” is a work on the copies or phonorecords of which no natural person is identified as author.

An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.3

Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.

The “Berne Convention” is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto.4

The “best edition” of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.

A person’s “children” are that person’s immediate offspring, whether legitimate or not, and any children legally adopted by that person.

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.5

Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

Copyright owner“, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.

A “Copyright Royalty Judge” is a Copyright Royalty Judge appointed under section 802 of this title, and includes any individual serving as an interim Copyright Royalty Judge under such section.6

A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.

A “device“, “machine“, or “process” is one now known or later developed.

A “digital transmission” is a transmission in whole or in part in a digital or other nonanalog format.7

To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.

An “establishment” is a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.8

The term “financial gain” includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.9

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

A “food service or drinking establishment” is a restaurant, inn, bar, tavern, or any other similar place of business in which the public or patrons assemble for the primary purpose of being served food or drink, in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.10

The “Geneva Phonograms Convention” is the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, concluded at Geneva, Switzerland, on October 29, 1971.11

The “gross square feet of space” of an establishment means the entire interior space of that establishment, and any adjoining outdoor space used to serve patrons, whether on a seasonal basis or otherwise.12

The terms “including” and “such as” are illustrative and not limitative.

An “international agreement” is —

(1) the Universal Copyright Convention;

(2) the Geneva Phonograms Convention;

(3) the Berne Convention;

(4) the WTO Agreement;

(5) the WIPO Copyright Treaty;13

(6) the WIPO Performances and Phonograms Treaty;14 and

(7) any other copyright treaty to which the United States is a party.15

A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

The term “motion picture exhibition facility” means a movie theater, screening room, or other venue that is being used primarily for the exhibition of a copyrighted motion picture, if such exhibition is open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.16

Motion pictures” are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.17

Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.18

For purposes of section 513, a “proprietor” is an individual, corporation, partnership, or other entity, as the case may be, that owns an establishment or a food service or drinking establishment, except that no owner or operator of a radio or television station licensed by the Federal Communications Commission, cable system or satellite carrier, cable or satellite carrier service or programmer, provider of online services or network access or the operator of facilities therefor, telecommunications company, or any other such audio or audiovisual service or programmer now known or as may be developed in the future, commercial subscription music service, or owner or operator of any other transmission service, shall under any circumstances be deemed to be a proprietor.19

A “pseudonymous work” is a work on the copies or phonorecords of which the author is identified under a fictitious name.

Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Registration“, for purposes of sections 205(c)(2), 405, 406, 410(d), 411, 412, and 506(e), means a registration of a claim in the original or the renewed and extended term of copyright.20

Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.

State” includes the District of Columbia and the Commonwealth of Puerto Rico, and any territories to which this title is made applicable by an Act of Congress.

A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.

A “transmission program” is a body of material that, as an aggregate, has been produced for the sole purpose of transmission to the public in sequence and as a unit.

To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.

A “treaty party” is a country or intergovernmental organization other than the United States that is a party to an international agreement.21

The “United States“, when used in a geographical sense, comprises the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government.

For purposes of section 411, a work is a “United States work” only if—

(1) in the case of a published work, the work is first published—

(A) in the United States;

(B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States;

(C) simultaneously in the United States and a foreign nation that is not a treaty party; or

(D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States;

(2) in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States; or

(3) in the case of a pictorial, graphic, or sculptural work incorporated in a building or structure, the building or structure is located in the United States.22

A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.

The author’s “widow” or “widower” is the author’s surviving spouse under the law of the author’s domicile at the time of his or her death, whether or not the spouse has later remarried.

The “WIPO Copyright Treaty” is the WIPO Copyright Treaty concluded at Geneva, Switzerland, on December 20, 1996.23

The “WIPO Performances and Phonograms Treaty” is the WIPO Performances and Phonograms Treaty concluded at Geneva, Switzerland, on December 20, 1996.24

A “work of visual art” is—

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include—

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this title.25

A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.

A “work made for hire” is—

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment—

(A) shall be considered or otherwise given any legal significance, or

(B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination,

by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made for Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.26

The terms “WTO Agreement” and “WTO member country” have the meanings given those terms in paragraphs (9) and (10), respectively, of section 2 of the Uruguay Round Agreements Act.27

Infringement…best practices

a.

Copyright office Infringement Questions & Answers [24]

What Is Infringement?

Section 501 of the copyright law states that “anyone who violates any of the exclusive rights of the copyright owner …is an infringer of the copyright or right of the author.”

Generally, under the law, one who engages in any of these activities without obtaining the copyright owner’s permission may be liable for infringement. Nevertheless, there are several limitations of the exclusive rights of the copyright owner. The copyright law provides exemptions from infringement liability by authorizing certain uses under particularized circumstances. These exemptions are enumerated generally in sections 107-122 of the copyright law. [25]

1.

§ 107 . Limitations on exclusive rights: Fair use

2.

§ 108 . Limitations on exclusive rights: Reproduction by libraries and archives

3.

§ 109 . Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord

4.

§ 110 . Limitations on exclusive rights: Exemption of certain performances and displays

5.

§ 111 . Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable

6.

§ 112 . Limitations on exclusive rights: Ephemeral recordings

7.

§ 113 . Scope of exclusive rights in pictorial, graphic, and sculptural works

a. b. c.

Subject to the provisions of subsections (b) and (c) of this section, the exclusive right to reproduce a copyrighted pictorial, graphic, or sculptural work in copies under section 106 includes the right to reproduce the work in or on any kind of article, whether useful or otherwise.

This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.

In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news reports.

d.

1.

In a case in which—

A. B.

a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and

the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.

2.

If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author’s rights under paragraphs (2) and (3) of section 106A(a) shall apply unless—

a. b.

the owner has made a diligent, good faith attempt without success to notify the author of the owner’s intended action affecting the work of visual art, or

the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.

For purposes of subparagraph (A), an owner shall be presumed to have made a diligent, good faith attempt to send notice if the owner sent such notice by registered mail to the author at the most recent address of the author that was recorded with the Register of Copyrights pursuant to paragraph (3). If the work is removed at the expense of the author, title to that copy of the work shall be deemed to be in the author.

3.

The Register of Copyrights shall establish a system of records whereby any author of a work of visual art that has been incorporated in or made part of a building, may record his or her identity and address with the Copyright Office. The Register shall also establish procedures under which any such author may update the information so recorded, and procedures under which owners of buildings may record with the Copyright Office evidence of their efforts to comply with this subsection.

8.

§ 114 . Scope of exclusive rights in sound recordings

9.

§ 115 . Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecord

10.

§ 116 . Negotiated licenses for public performances by means of coin-operated phonorecord players

11.

§ 117 . Limitations on exclusive rights: Computer programs

12.

§ 118 . Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting

13.

§ 119 . Limitations on exclusive rights: Secondary transmissions of distant television programming by satellite

14.

§ 120 . Scope of exclusive rights in architectural works

15.

§ 121 . Limitations on exclusive rights: Reproduction for blind or other people with disabilities

16.

§ 122 . Limitations on exclusive rights: Secondary transmissions of local television programming by satellite

b.

Resolving infringement cases

1.

Formal Remedies; US Copyright Office [26]

§ 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

(b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. The court may require such owner to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be affected by a decision in the case. The court may require the joinder, and shall permit the intervention, of any person having or claiming an interest in the copyright.

(c) For any secondary transmission by a cable system that embodies a performance or a display of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station.

(d) For any secondary transmission by a cable system that is actionable as an act of infringement pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter whose transmission has been altered by the cable system; and (ii) any broadcast station within whose local service area the secondary transmission occurs.

(e) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 119(a)(5), a network station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station.

(f)(1) With respect to any secondary transmission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a television broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local market of that station.

(2) A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast signals, as required under section 122(a)(2), to enforce that television broadcast station’s rights under section 338(a) of the Communications Act of 1934.

§ 502. Remedies for infringement: Injunctions

(a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.

(b) Any such injunction may be served anywhere in the United States on the person enjoined; it shall be operative throughout the United States and shall be enforceable, by proceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the injunction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk’s office.

§ 503. Remedies for infringement: Impounding and disposition of infringing articles

(a)(1) At any time while an action under this title is pending, the court may order the impounding, on such terms as it may deem reasonable—

(A) of all copies or phonorecords claimed to have been made or used in violation of the exclusive right of the copyright owner;

(B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies of phonorecords may be reproduced; and

(C) of records documenting the manufacture, sale, or receipt of things involved in any such violation, provided that any records seized under this subparagraph shall be taken into the custody of the court.

(2) For impoundments of records ordered under paragraph (1)(C), the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been impounded. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used.

(3) The relevant provisions of paragraphs (2) through (11) of section 34(d) of the Trademark Act (15 U.S.C. 1116(d)(2) through (11)) shall extend to any impoundment of records ordered under paragraph (1)(C) that is based upon an ex parte application, notwithstanding the provisions of rule 65 of the Federal Rules of Civil Procedure. Any references in paragraphs (2) through (11) of section 34(d) of the Trademark Act to section 32 of such Act shall be read as references to section 501 of this title, and references to use of a counterfeit mark in connection with the sale, offering for sale, or distribution of goods or services shall be read as references to infringement of a copyright.

(b) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced.

§ 504. Remedies for infringement: Damages and profits

(a) In General. — Except as otherwise provided by this title, an infringer of copyright is liable for either —

(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages and Profits. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

(c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118(f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

(3) (A) In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.

(B) Nothing in this paragraph limits what may be considered willful infringement under this subsection.

(C) For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).

(d) Additional Damages in Certain Cases. — In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.

§ 505. Remedies for infringement: Costs and attorney’s fees

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

§ 506. Criminal offenses

(a) Criminal Infringement. —

(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

(2) Evidence. — For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

(3) Definition. — In this subsection, the term “work being prepared for commercial distribution” means —

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution —

(i) the copyright owner has a reasonable expectation of commercial distribution; and

(ii) the copies or phonorecords of the work have not been commercially distributed; or

(B) a motion picture, if, at the time of unauthorized distribution, the motion picture —

(i) has been made available for viewing in a motion picture exhibition facility; and

(ii) has not been made available in copies for sale to the general public in the United States in a format intended to permit viewing outside a motion picture exhibition facility.

(b) Forfeiture, Destruction, and Restitution.—Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18, to the extent provided in that section, in addition to any other similar remedies provided by law.

(c) Fraudulent Copyright Notice. — Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.

(d) Fraudulent Removal of Copyright Notice. — Any person who, with fraudulent intent, removes or alters any notice of copyright appearing on a copy of a copyrighted work shall be fined not more than $2,500.

(e) False Representation. — Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.

(f) Rights of Attribution and Integrity. — Nothing in this section applies to infringement of the rights conferred by section 106A(a).

§ 507. Limitations on actions7

(a) Criminal Proceedings. — Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose. (b) Civil Actions. — No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.

§ 508. Notification of filing and determination of actions

(a) Within one month after the filing of any action under this title, the clerks of the courts of the United States shall send written notification to the Register of Copyrights setting forth, as far as is shown by the papers filed in the court, the names and addresses of the parties and the title, author, and registration number of each work involved in the action. If any other copyrighted work is later included in the action by amendment, answer, or other pleading, the clerk shall also send a notification concerning it to the Register within one month after the pleading is filed.

(b) Within one month after any final order or judgment is issued in the case, the clerk of the court shall notify the Register of it, sending with the notification a copy of the order or judgment together with the written opinion, if any, of the court.

(c) Upon receiving the notifications specified in this section, the Register shall make them a part of the public records of the Copyright Office.

§ 509. [Repealed]

§ 510. Remedies for alteration of programming by cable systems

(a) In any action filed pursuant to section 111(c)(3), the following remedies shall be available:

(1) Where an action is brought by a party identified in subsections (b) or (c) of section 501, the remedies provided by sections 502 through 505, and the remedy provided by subsection (b) of this section; and

(2) When an action is brought by a party identified in subsection (d) of section 501, the remedies provided by sections 502 and 505, together with any actual damages suffered by such party as a result of the infringement, and the remedy provided by subsection (b) of this section.

(b) In any action filed pursuant to section 111(c)(3), the court may decree that, for a period not to exceed thirty days, the cable system shall be deprived of the benefit of a statutory license for one or more distant signals carried by such cable system.

§ 511. Liability of States, instrumentalities of States, and State officials for infringement of copyright

(a) In General. — Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

(b) Remedies. — In a suit described in subsection (a) for a violation described in that subsection, remedies (including remedies both at law and in equity) are available for the violation to the same extent as such remedies are available for such a violation in a suit against any public or private entity other than a State, instrumentality of a State, or officer or employee of a State acting in his or her official capacity. Such remedies include impounding and disposition of infringing articles under section 503, actual damages and profits and statutory damages under section 504, costs and attorney’s fees under section 505, and the remedies provided in section 510.

§ 512. Limitations on liability relating to material online

(a) Transitory Digital Network Communications. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if —

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and

(5) the material is transmitted through the system or network without modification of its content.

(b) System Caching.—

(1) Limitation on liability. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider in a case in which —

(A) the material is made available online by a person other than the service provider;

(B) the material is transmitted from the person described in subparagraph (A) through the system or network to a person other than the person described in subparagraph (A) at the direction of that other person; and

(C) the storage is carried out through an automatic technical process for the purpose of making the material available to users of the system or network who, after the material is transmitted as described in subparagraph (B), request access to the material from the person described in subparagraph (A), if the conditions set forth in paragraph (2) are met.

(2) Conditions. — The conditions referred to in paragraph (1) are that —

(A) the material described in paragraph (1) is transmitted to the subsequent users described in paragraph (1)(C) without modification to its content from the manner in which the material was transmitted from the person described in paragraph (1)(A);

(B) the service provider described in paragraph (1) complies with rules concerning the refreshing, reloading, or other updating of the material when specified by the person making the material available online in accordance with a generally accepted industry standard data communications protocol for the system or network through which that person makes the material available, except that this subparagraph applies only if those rules are not used by the person described in paragraph (1)(A) to prevent or unreasonably impair the intermediate storage to which this subsection applies;

(C) the service provider does not interfere with the ability of technology associated with the material to return to the person described in paragraph (1)(A) the information that would have been available to that person if the material had been obtained by the subsequent users described in paragraph (1)(C) directly from that person, except that this subparagraph applies only if that technology –

(i) does not significantly interfere with the performance of the provider’s system or network or with the intermediate storage of the material;

(ii) is consistent with generally accepted industry standard communications protocols; and

(iii) does not extract information from the provider’s system or network other than the information that would have been available to the person described in paragraph (1)(A) if the subsequent users had gained access to the material directly from that person;

(D) if the person described in paragraph (1)(A) has in effect a condition that a person must meet prior to having access to the material, such as a condition based on payment of a fee or provision of a password or other information, the service provider permits access to the stored material in significant part only to users of its system or network that have met those conditions and only in accordance with those conditions; and

(E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material that is claimed to be infringing upon notification of claimed infringement as described in subsection (c)(3), except that this subparagraph applies only if —

(i) the material has previously been removed from the originating site or access to it has been disabled, or a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled; and

(ii) the party giving the notification includes in the notification a statement confirming that the material has been removed from the originating site or access to it has been disabled or that a court has ordered that the material be removed from the originating site or that access to the material on the originating site be disabled.

(c) Information Residing on Systems or Networks at Direction of Users.—

(1) In general. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider –

(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

(2) Designated agent. — The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:

(A) the name, address, phone number, and electronic mail address of the agent.

(B) other contact information which the Register of Copyrights may deem appropriate.

The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory.

(3) Elements of notification. —

(A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(B)(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of subparagraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent.

(ii) In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this subparagraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A).

(d) Information Location Tools. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider —

(1)(A) does not have actual knowledge that the material or activity is infringing;

(B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

(2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and

(3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.

(e) Limitation on Liability of Nonprofit Educational Institutions. — (1) When a public or other nonprofit institution of higher education is a service provider, and when a faculty member or graduate student who is an employee of such institution is performing a teaching or research function, for the purposes of subsections (a) and (b) such faculty member or graduate student shall be considered to be a person other than the institution, and for the purposes of subsections (c) and (d) such faculty member’s or graduate student’s knowledge or awareness of his or her infringing activities shall not be attributed to the institution, if —

(A) such faculty member’s or graduate student’s infringing activities do not involve the provision of online access to instructional materials that are or were required or recommended, within the preceding 3-year period, for a course taught at the institution by such faculty member or graduate student;

(B) the institution has not, within the preceding 3-year period, received more than 2 notifications described in subsection (c)(3) of claimed infringement by such faculty member or graduate student, and such notifications of claimed infringement were not actionable under subsection (f); and

(C) the institution provides to all users of its system or network informational materials that accurately describe, and promote compliance with, the laws of the United States relating to copyright.

(2) For the purposes of this subsection, the limitations on injunctive relief contained in subsections (j)(2) and (j)(3), but not those in (j)(1), shall apply.

(f) Misrepresentations. – Any person who knowingly materially misrepresents under this section

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

(g) Replacement of Removed or Disabled Material and Limitation on Other Liability.—

(1) No liability for taking down generally. — Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

(2) Exception. — Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider —

(A) takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.

(3) Contents of counter notification. — To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

(4) Limitation on other liability. — A service provider’s compliance with paragraph (2) shall not subject the service provider to liability for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C).

(h) Subpoena to Identify Infringer.—

(1) Request. — A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.

(2) Contents of request. — The request may be made by filing with the clerk —

(A) a copy of a notification described in subsection (c)(3)(A);

(B) a proposed subpoena; and

(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

(3) Contents of subpoena. — The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.

(4) Basis for granting subpoena. — If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.

(5) Actions of service provider receiving subpoena. — Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.

(6) Rules applicable to subpoena. — Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.

(i) Conditions for Eligibility.—

(1) Accommodation of technology. — The limitations on liability established by this section shall apply to a service provider only if the service provider —

(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and

(B) accommodates and does not interfere with standard technical measures.

(2) Definition. — As used in this subsection, the term “standard technical measures” means technical measures that are used by copyright owners to identify or protect copyrighted works and—

(A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process;

(B) are available to any person on reasonable and nondiscriminatory terms; and

(C) do not impose substantial costs on service providers or substantial burdens on their systems or networks.

(j) Injunctions. — The following rules shall apply in the case of any application for an injunction under section 502 against a service provider that is not subject to monetary remedies under this section:

(1) Scope of relief. — (A) With respect to conduct other than that which qualifies for the limitation on remedies set forth in subsection (a), the court may grant injunctive relief with respect to a service provider only in one or more of the following forms:

(i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider’s system or network.

(ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider’s system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.

(iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose.

(B) If the service provider qualifies for the limitation on remedies described in subsection (a), the court may only grant injunctive relief in one or both of the following forms:

(i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider’s system or network who is using the provider’s service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.

(ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States.

(2) Considerations. — The court, in considering the relevant criteria for injunctive relief under applicable law, shall consider —

(A) whether such an injunction, either alone or in combination with other such injunctions issued against the same service provider under this subsection, would significantly burden either the provider or the operation of the provider’s system or network;

(B) the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement;

(C) whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other online locations; and

(D) whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available.

(3) Notice and ex parte orders. — Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network.

(k) Definitions.—

(1) Service provider. — (A) As used in subsection (a), the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.

(B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

(2) Monetary relief. — As used in this section, the term “monetary relief” means damages, costs, attorneys’ fees, and any other form of monetary payment.

(l) Other Defenses Not Affected. — The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense.

(m) Protection of Privacy. — Nothing in this section shall be construed to condition the applicability of subsections (a) through (d) on —

(1) a service provider monitoring its service or affirmatively seeking facts indicating infringing activity, except to the extent consistent with a standard technical measure complying with the provisions of subsection (i); or

(2) a service provider gaining access to, removing, or disabling access to material in cases in which such conduct is prohibited by law.

(n) Construction. — Subsections (a), (b), (c), and (d) describe separate and distinct functions for purposes of applying this section. Whether a service provider qualifies for the limitation on liability in any one of those subsections shall be based solely on the criteria in that subsection, and shall not affect a determination of whether that service provider qualifies for the limitations on liability under any other such subsection.

§ 513. Determination of reasonable license fees for individual proprietors

In the case of any performing rights society subject to a consent decree which provides for the determination of reasonable license rates or fees to be charged by the performing rights society, notwithstanding the provisions of that consent decree, an individual proprietor who owns or operates fewer than 7 nonpublicly traded establishments in which nondramatic musical works are performed publicly and who claims that any license agreement offered by that performing rights society is unreasonable in its license rate or fee as to that individual proprietor, shall be entitled to determination of a reasonable license rate or fee as follows:

(1) The individual proprietor may commence such proceeding for determination of a reasonable license rate or fee by filing an application in the applicable district court under paragraph (2) that a rate disagreement exists and by serving a copy of the application on the performing rights society. Such proceeding shall commence in the applicable district court within 90 days after the service of such copy, except that such 90-day requirement shall be subject to the administrative requirements of the court.

(2) The proceeding under paragraph (1) shall be held, at the individual proprietor’s election, in the judicial district of the district court with jurisdiction over the applicable consent decree or in that place of holding court of a district court that is the seat of the Federal circuit (other than the Court of Appeals for the Federal Circuit) in which the proprietor’s establishment is located.

(3) Such proceeding shall be held before the judge of the court with jurisdiction over the consent decree governing the performing rights society. At the discretion of the court, the proceeding shall be held before a special master or magistrate judge appointed by such judge. Should that consent decree provide for the appointment of an advisor or advisors to the court for any purpose, any such advisor shall be the special master so named by the court.

(4) In any such proceeding, the industry rate shall be presumed to have been reasonable at the time it was agreed to or determined by the court. Such presumption shall in no way affect a determination of whether the rate is being correctly applied to the individual proprietor.

(5) Pending the completion of such proceeding, the individual proprietor shall have the right to perform publicly the copyrighted musical compositions in the repertoire of the performing rights society by paying an interim license rate or fee into an interest bearing escrow account with the clerk of the court, subject to retroactive adjustment when a final rate or fee has been determined, in an amount equal to the industry rate, or, in the absence of an industry rate, the amount of the most recent license rate or fee agreed to by the parties.

(6) Any decision rendered in such proceeding by a special master or magistrate judge named under paragraph (3) shall be reviewed by the judge of the court with jurisdiction over the consent decree governing the performing rights society. Such proceeding, including such review, shall be concluded within 6 months after its commencement.

(7) Any such final determination shall be binding only as to the individual proprietor commencing the proceeding, and shall not be applicable to any other proprietor or any other performing rights society, and the performing rights society shall be relieved of any obligation of nondiscrimination among similarly situated music users that may be imposed by the consent decree governing its operations.

(8) An individual proprietor may not bring more than one proceeding provided for in this section for the determination of a reasonable license rate or fee under any license agreement with respect to any one performing rights society.

(9) For purposes of this section, the term “industry rate” means the license fee a performing rights society has agreed to with, or which has been determined by the court for, a significant segment of the music user industry to which the individual proprietor belongs.

2.

Ways to document infringement

a.

Conduct a reverse image search for online infringement www.images.google.com -At the top of the screen, select file>save page as>web page complete (html). This will save the whole page and can be viewed without being online -make a screen shot of the page, which will show the time and date stamp: hit the “PrtScn” button on your keyboard>open up a Word Document or Photoshop and paste from the clipboard>save the file as a record.

3.

When litigation is not a viable economic option

a. b.

If your copyrighted artwork is not registered, you may find it is too expensive to litigate the infringement. Consider approaching the infringer to negotiate an out of court but binding settlement.

Create and send a ‘cease and desist’ letter Free cease and desist letter format: http://formswift.com/cease-and-desist-copyright-infringement-letter Below is one suggestion:

request to cease and desist all copyright infRingment

Your Name Address City, State, zip code

(Date) CERTIFIED MAIL #:______________________________

Infringer Name Address City, State, zip code

Dear Infringer Name:

The purpose of this letter is to inform you that I reserve and own all rights to ‘COPYRIGHT WORK NAME HERE’ that was first published on 02/06/2014 and protected under the 1976 U.S. Copyright Act.

It has been brought to my attention, that you have made unauthorized use of my copyrighted work which is titled ‘COPYRIGHT WORK NAME HERE’. Your work titled ‘COPYRIGHT WORK NAME HERE’ is fundamentally a close duplication of my work filed under the copyright of ‘REGISTERED COPYRIGHT INFORMATION HERE’.

The U.S. Copyright ACT Title 17 of U.S. Code, Section 102(a) protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” such as:

1)literary works, 2)musical works, including any accompanying words, 3)dramatic works, including any accompanying music, 4)pantomimes and choreographic works, 5)pictorial, graphic, and sculptural works, 6)motion pictures and other audio/visual works, and 7)sound recording, and 8)architectural works.

In addition, U.S. Copyright ACT Title 17, Section 106-122 grants the following exclusive rights to copyright holders:

1)the right to reproduce the copyrighted work into copies and phonorecords; 2)the right to create or prepare derivative works based upon the copyrighted work; 3)the right to distribute copies and phonorecords of the copyrighted work to the public by sale, lease, lending or rental; 4)the right to perform the copyrighted work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, motion picture or other audio/visual work.); 5)the right to display the copyrighted work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, pictorial, graphic, sculptural, motion picture, or other audio/visual work.), and 6)the right to perform the copyrighted work by means of a digital audio transmission.

As you have not sought or requested permission/authorization to use, nor to make and/or distribute, sell, lend or lease my copyrighted work entitled ‘COPYRIGHT WORK NAME HERE’, you are hereby notified to CEASE AND DESIST any and all further unlawful acts of copyright infringement with regards to your actions and/or statements relating to this matter.

Failure to comply with this notice will confirm your complicity and leave me no other alternative but to proceed to file a civil action suit seeking monetary damages and compensation for court and attorney’s fees incurred as a direct result of your unlawful actions of copyright infringement.

It is not my wish to seek legal recourse; however, I will vehemently do all that is necessary to protect my work, ‘COPYRIGHT WORK NAME HERE’, and interests. Please note that this letter will be the only warning I will provide. THEREFORE, you are hereby requested to immediately CEASE AND DESIST any further acts of copyright infringement and within 10 business days return the signed written assurance below affirming that you will refrain from any further acts of copyright infringement.

Sincerely,

__________________________________ (Your name)cc: Regular Mail Certified Mail File _________________________ Page 2 of 2

ASSURANCE TO CEASE AND DESIST FURTHER ACTS OF COPYRIGHT INFRINGEMENT

In accordance with U.S. Copyright ACT Title 17 of U.S. Code, Section 102(a), U.S. Copyright ACT Title 17, Section 106-122 and the above request and stipulations, I, Baker, do hereby agree to immediately CEASE AND DESIST further acts of Copyright Infringement with regards to ‘COPYRIGHT WORK NAME HERE’. And in turn, Mr. Barker will release me from all acts of Copyright Infringement relating to this specific incident. HOWEVER, should I act or behave in such a manner that would result in a breach of this agreement, Mr. Barker shall be entitled to filing fees, court’s costs and attorney’s fees in any action which may be filed in an effort to enforce this agreement, in addition to any injunctive relief and/or monetary damages that Mr. Barker may have been entitled to had this assurance never been signed. _________________________________________________ (Infringer’s name)

Date Signed: ______________________________________ Please sign, date and return to: (your name and address)

4.

World Intellectual Property Organization (WIPO) http://www.wipo.int/amc/en/center/faq/index.html

WIPO US contact info:

WIPO offices: http://www.wipo.int/directory/en/contact.jsp?country_id=179&type=DEP_WIPO Copyright offices: http://www.wipo.int/directory/en/contact.jsp?country_id=179 Depository libraraies: http://www.wipo.int/directory/en/contact.jsp?country_id=179&type=DEP_LIB

Recommended WIPO Contract Clauses and Submission Agreements http://www.wipo.int/amc/en/clauses/#4

WIPO Dispute resolution procedures offered:

a. b. c. d.

Mediation: a non-binding procedure in which a neutral intermediary, the mediator, assists the parties in reaching a settlement of the dispute. (Depending on the parties’ choice, mediation may be followed, in the absence of a settlement, by arbitration, expedited arbitration or expert determination.)

Arbitration: a neutral procedure in which the dispute is submitted to one or more arbitrators who make a binding decision on the dispute. (Depending on the parties’ choice, arbitration may be preceded by mediation or expert determination.)

Expedited Arbitration: an arbitration procedure that is carried out in a short time and at a reduced cost. (Depending on the parties’ choice, expedited arbitration may be preceded by mediation or expert determination.)

Expert Determination: a procedure in which a dispute or a difference between the parties is submitted to one or more experts who make a determination on the matter referred to by the parties. The determination is binding, unless the parties have agreed otherwise. (Depending on the parties’ choice, expert determination may be preceded by mediation or followed by (expedited) arbitration.)

Copyright Registries

a.

U.S. Copyright Office

Works registered and documents recorded by the U.S. Copyright Office since January 1, 1978.

b.

Plus (Picture Licensing Universal System.) [27]

The PLUS Registry at www.PLUSregistry.org is an online resource developed and operated cooperatively by a global Coalition of all communities engaged in creating, using, distributing and preserving images. http://plus.useplus.org/PR/ASPP_Whats_Up_With_PLUS_October2013.pdf

c.

Copyright Collaborative [28]

A membership based collaborative offering educational material, support, registering work etc.

What is the American Society of Illustrators Partnership?

a.

“ASIP is a non-profit organization founded by 6 illustrators groups. As part of its mission, ASIP hopes to bring accountability to the reprographic rights of American popular artists.” [29] Collecting societies are a new concept to most American illustrators. They exist in countries around the world, but currently, there are none for illustrators in the US. The Illustrators’ Partnership brought together 12 prominent visual arts organizations. (ASAI is one of six original founding members.) These groups have incorporated as the American Society of Illustrators Partnership (ASIP). ASIP, which has been chartered as a collecting society, hopes to begin the long-overdue process of bringing accountability to illustrators’ reprographic rights. The 12 founding groups of ASIP also formed the nucleus of the 85 organizations that opposed the Orphan Works bill. [30] The ASIP website is full of helpful information and news: http://www.asip-repro.org/

1.

What illustrator groups comprise ASIP?

a. b. c. d. e. f. g. h. i. j. k. l. m.

Illustrators’ Partnership of America Association of Medical Illustrators American Society of Architectural Illustrators (one of the six original founding members) National Cartoonists Society Guild of Natural Science Illustrators San Francisco Society of Illustrators Pittsburgh Society of Illustrators American Society of Aviation Artists Society of Illustrators of San Diego Society of Illustrators of Los Angeles Illustrators Club of Washington DC, Maryland and Virginia Association of American Editorial Cartoonists Illustrators-at-Large (nonaffiliated)

2.

ASIP Board of Directors [31]

a.

Brad Holland Co-Chair, Representative for Illustrators’ Partnership of America (IPA)

b.

Cynthia Turner, Co-Chair

c.

Frank Costantino, ASAI, FSAI, JARA; 1st Vice-President, Representative for American Society of Architectural Illustrators (ASAI)

d.

Michael Belknap, 2nd Vice-President, Representative for Association of Medical Illustrators

e.

Michel Bohbot, Treasurer, Representative for San Francisco Society of Illustrators

f.

Dolores R. Santoliquido, Secretary, Representative for Guild of Natural Science Illustrators (GNSI)

g.

Don Kilpatrick, Unaffiliated Illustrators at Large

h.

General Board Members

1. 2. 3. 4. 5. 6. 7.

Joe Azar, Representative for Illustrators Club of Washington DC, Maryland & Virginia Ilene Winn-Lederer, Representative for Pittsburgh Society of Illustrators Kim Fraley, Representative for Society of Illustrators San Diego C.F. Payne, Representative for National Cartoonists Society Joe Cepeda, Society of Illustrators Los Angeles Nick Anderson, American Society of Editorial Cartoonists Keith Ferris, American Society of Aviation Artists

i.

Legal Advisors [32]

8. 9. 10.

Honorable Bruce A. Lehman, Counsel to American Society of Illustrators’ Partnership, Chairman, International Intellectual Property Institute (IIPI), Senior Counsel, Akin Gump Strauss Hauer and Feld Peter Rooney, Esq., McDermott, Will & Emery, Pro Bono Counsel, American Society of Illustrators’ Partnership Elena M. Paul, Esq., Executive Director of Volunteer Lawyers for the Arts, New York, Board Member, Illustrators’ Partnership of America; Advisor to American Society of Illustrators’ Partnership